The Gazette 1979

GAZETTE

JULY-AUGUST 1979

Seatbelts, crash helmets and contributory negligence ANTHONY KERR Hamill r. Oliver |Supreme Courtl - unreported. 24/6/1977 (34/1976).

In both Hamill and Froom the passenger was in no way to blame for the accident, which was caused solely by the defendant's negligent driving, and it is somewhat understandable that judges are reluctant to allow the defendant to say "well you should have been wearing a seat belt". This is apparent from the judgment of O'Connor J. in Smith v. Blackburn 1 where he says "the idea that the insurers of a grossly negligent driver should he relieved in any degree from paying what is proper compensation for injuries is an idea that offends ordinary decency". However the idea that once a defendant has been negligent he is liable automatically to all the damage caused is no longer part of the common law. As Millner points out: "The conclusion that once some carelessness is shown, some behaviour falling below the standard of a reasonable person, then liability follows to whomsoever is injured and in whatsoever respect expresses a penal principle. The enquiry into reasonableness as a basis of liability to make compensation for harm suffered by the particular plaintiff and to this extent it is a genuine enquiry into blameworthiness" 8 This applies as much as to the plaintiff as it does to the defendant; this is why the important question is what was the cause of the damage, not the accident. This was always the approach in the Admiralty Court which did apportion liability before 1961. 9 Once this is clear a defendant must then first show that the device, be it a seat belt or a crash helmet, 10 would have prevented or reduced the plaintiffs injuries, and secondly the unreasonableness of the plaintiffs ominission. The Supreme Court were of the opinion in Hamill that the type of accident would not have happened if she had been wearing a seat belt. She had been thrown forward and to the right onto the gear stick and fractured the 5th, 6th and 7th ribs on her right side and suffered a collapse of the lung. They held that a person who travels in the front scat of a car without wearing a seat belt must be held guilty of contributory negligence (subject to excusing circumstances) if the injuries in respect of which he sues were caused wholly or in part as a result of his failure to wear a scat belt. The court felt that the plaintiff could not but have been aware of the advisability of wearing a seat hell and the risks incurred if she failed to do so. But they concluded with this

Giving judgment in the Judicial Committee of the Privy Council Viscount Simon had this to say of the defence of contributory negligence: "all that is necessary to establish . . . is to prove to the satisfaction of the jury that the injured party did not, in his own interest, take reasonable care of himself and contributed, by this want of care, to his own injury. For when contributory negligence is set up as a shield against the obligation to satisfy the whole of the plaintiffs claim, the principle involved is that, where a man (sic) is part author of his own injury, he cannot call on the other party to compensate him in full . . Doubt has been raised elsewhere 2 about the relationship between the concepts of contributory negligence and mitigation of damages. Specifically whether contributory negligence extends to failure to take precautions which would not have prevented the accident but would have rendered the injuries less severe. Hicks has pointed out that 19th century decisions on contributory negligence show that where the plaintiffs conduct did not contribute to the occurrence of damage, but only increased its extent, it was not contributory negligence. 3 This is understandable in the light of the then existing rule that a plaintiff who was contributorily negligent failed in his action; and that this does not represent the position today is made clear by Section 34 (1) of the Civil Liability Act 1961 which states that 'where . . . it is proved that the damage suffered by the plaintiff was caused partly by the negligence or want of care of the plaintiff . . . and partly by the wrong of the defendant, the damages recovered in respect of the said wrong shall be reduced by such amount as the court thinks just and equitable . . .' The distinction drawn above was however raised in argument before the Superme Court in Hamill v. Oliver, (Supreme Court, 24 June 1977 — unreported. Ref. 34/1976). The plaintiff was a passenger in a car which was involved in a collision with the defendant's car. The defendant admitted negligence but sought to have a question on contributory negligence left to the jury on the ground that, at the time of the accident, the plaintiff was not wearing a seat belt, even though one was fitted in the car for use by the front seat passenger. The trial judge refused to allow this in the absence of evidence that the accident would not have happened if the plaintiff had been wearing a scat belt. The Supreme Court 4 unanimously overruled him. The English and Commonwealth courts had already had an opportunity to consider this and a considerable body of ease law had developed. The leading case is undoubtedly Froom r. Butcher 5 and was approved by the Supreme Court here. A strong court of appeal 6 had held that the question to be asked was, 'what was the cause of damage?' anc' confirmed both the trial judge's finding that failure to wear a seat belt was contributory negligence an

"As the accident was caused by the negligent driving of the defendant and as the injuries resulted only to a minor extent by reason of the failure to wear a scat belt thv jury should be directed that in the apportionment of degrees of fault between plaintifT and defendant much the greater attribution of fault should he held to fall on the defendant as the person primarily responsible for the plaintiffs injuries"."

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