O’Connell v Jackson

A claimant may be contributorily negligent where an unreasonable failure to take a safety precaution increases the gravity of injuries, even though it does not contribute to the accident itself. The question is whether the claimant ought reasonably to have foreseen harm to himself and failed to act as a reasonable and prudent person, taking account of possible carelessness by others.

Where the precaution would have reduced only part of the resulting injury, the reduction must reflect the claimant’s responsibility for that additional harm. If precise division is impossible, the court may make a broad percentage assessment of the whole damages.

The plaintiff suffered severe head injuries when his moped collided with the defendant’s car. The defendant admitted negligence. Payne J awarded £7,097.13 without any reduction for contributory negligence, although he found that a crash helmet would probably have reduced the gravity of the head injuries.

The defendant appealed from the Liverpool Assizes. He abandoned his challenge to the amount of damages and argued only that the plaintiff’s failure to wear a crash helmet amounted to contributory negligence. The central issues were whether an omission which aggravated injury, but did not cause the collision, fell within contributory negligence and, if so, what reduction was just and equitable.

1. Appeal allowed unanimously. Edmund Davies LJ delivered the judgment of the court. The plaintiff’s failure to wear a crash helmet constituted contributory negligence, and the damages were reduced by 15 per cent.

2. Under sections 1(1) and 4 of the Law Reform (Contributory Negligence) Act 1945, responsibility for damage includes responsibility for personal injury. A claimant’s damages may therefore be reduced where his fault increased the nature or extent of his injuries, although it did not contribute to the occurrence of the accident.

3. The court adopted the test in Jones v Livox. Contributory negligence requires foreseeability of harm to oneself. A person is at fault if he ought reasonably to have foreseen that failure to act as a reasonable and prudent person might result in injury, taking account of the possibility that others may be careless. A moped rider travelling in a busy traffic area ought reasonably to foresee both the possibility of an accident and the risk of greater injury without a helmet.

4. Paragraph 24 of the Highway Code advised riders of motorcycles, scooters and mopeds always to wear safety helmets. By section 74 of the Road Traffic Act 1960, that advice could tend to establish or negative liability. The defendant did not have to prove that the latest Code was available to, or had been read by, the plaintiff. The Code stated sensible practice generally accepted by road users. The plaintiff’s own evidence also established that he knew he ought to wear a helmet.

5. Hilder v Associated Portland Cement Co was materially different because there had been no relevant Code advice and the evidence did not establish that a helmet would have prevented the fatal fracture. MacDonnell et al v Kaiser was also distinguishable because the effectiveness of seat-belts was then considered speculative and controversial. Here, the medical evidence solidly established that a helmet probably would have reduced the head injury.

6. Apportionment required a broad approach. The defendant remained wholly responsible for injuries that would have occurred even with a helmet and substantially responsible for the additional injuries caused by the absence of one. As the evidence did not permit those components to be measured and separately apportioned by blameworthiness and causative potency, the court assessed the plaintiff’s responsibility as 15 per cent of the whole. The order below was varied accordingly, with costs of the appeal awarded to the defendant.

1. Court of Appeal: The defendant’s appeal was allowed. The damages and associated figures in the order were reduced by 15 per cent, with costs of the appeal.

2. Liverpool Assizes: Payne J awarded the plaintiff £7,097.13 on the basis of full liability. He found that a crash helmet probably would have reduced the gravity of the head injuries but acquitted the plaintiff of contributory negligence.