Contributory negligence in road traffic accidents

The following PI & Clinical Negligence practice note provides comprehensive and up to date legal information covering:

  • Contributory negligence in road traffic accidents
  • Seat belts
  • Motorcycle crash helmets
  • Cycle helmets
  • Children
  • Pedestrians
  • Alcohol
  • Emergency vehicles

Contributory negligence in road traffic accidents

In some instances someone may suffer damage that results partly from their own fault and partly from the fault of someone else. A claim in respect of such damage is not defeated as a result of the claimant partially causing the damage themselves. Instead, the court reduces the damages recoverable according to the proportion of the claimant’s responsibility for the damage.

The prerequisite for contributory negligence is therefore causative fault on both sides. The court must apportion to fairly reflect respective responsibility. This can be subdivided into two parts:

  1. the comparative blameworthiness of the parties’ actions

  2. the comparative causal potency of the parties’ actions

A finding of contributory negligence will therefore depend on the facts of each case. The burden is on the defendant to prove:

  1. the claimant failed to take reasonable care for their own safety

  2. this contributed to the damage

  3. it was reasonably foreseeable that the claimant would suffer harm

The defendant should plead contributory negligence at the earliest opportunity (certainly in the defence) and set out how the claimant’s failure to take reasonable care contributed either to the cause of the accident or the injuries or both.

Set out below are the types of road traffic accidents where findings of contributory negligence are often found.

Seat belts

Rules 99 — 102 of the Highway Code require that all drivers and passengers wear

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