O'Connell v Jackson
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RUSSELL,LORD JUSTICE EDMUND DAVIES |
| Judgment Date | 07 July 1971 |
| Judgment citation (vLex) | [1971] EWCA Civ J0707-4 |
| Docket Number | 1969 O. No.8005 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 July 1971 |
[1971] EWCA Civ J0707-4
Lord Justice Russell
Lord Justice Edmund Davies and
Lord Justice Cairns
In The Supreme Court of Judicature
Court of Appeal
(Civil Division)
(On appeal from Mr. Justice Payne sitting at Liverpool)
Mr. Godfrey Heilpern, Q.C. and Mr. A. Logan Petch (instructed by Mr. Harry Smith, Manchester) appeared on behalf of the Appellant.
Miss Rose Heilbron, Q. C. and Mr. Gerald Crowe (instructed by Mr. W. H. Thompson, Manchester) appeared on behalf of the Respondent.
I will ask Lord Justice Edmund Davies to give the judgment of the Court.
By these proceedings the defendant appeals from the judgment of Mr. Justice Payne, who awarded the plaintiff £7,097.13 at the Liverpool Assizes last November. The action was brought in respect of a road accident which occurred in January, 1969, when the plaintiff's moped collided with the defendant's motor car. Negligence was originally denied, but was admitted at the trial. The notice of appeal raised two points: (1) that the learned trial Judge was wrong in acquitting the plaintiff of contributory negligence, and (2) that the damages awarded were excessive. Before us, however, the latter point was abandoned, and the sole ground of appeal now relied upon is that the failure of the plaintiff to wear a crash helmet should, in all the circumstances, have been held to constitute contributory negligence and ought accordingly to have led to a reduction in his compensation below that which the Judge awarded on the basis of full liability.
The relevant facts can be shortly stated. The plaintiff, a marine fitter aged 47 employed at the Cammell Laird works in Birkenhead, was an experienced motorist. Six months before his accident he bought a moped, that is, a pedal-cycle with a small engine. This he used about three times weekly to do the four-mile journey between his home at Wallasey and his place of work. On January 25th, 1969, the defendant motorist was emerging from a minor road into the major road upon which the plaintiff was travelling, stopped at the junction, but then negligently moved forward. The result was that the plaintiff's moped, approaching from the defendants right at about 20 miles per hour, struck the car's offside bumper and went off at a tangent. The plaintiff was flung over his handlebars and his head came into heavy collision with the roadway.
The resultant injuries were of a general nature, but forpresent purposes it is sufficient to say that by far the most significant was the severe and extensive fracturing of the plaintiff's skull, extending from the right parietal region into the frontal bone and across the frontal sinuses into the anterior cranial fossa on the opposite side, The medical witnesses called for both sides expressed in various ways their views regarding the likelihood of such an injury being prevented had the plaintiff been wearing a crash helmet at the time of the accident. The defendant's medical witness said that "a crash helmet would have given him considerable protection and diminished the degree of head injury". One of the plaintiff's medical witnesses expressed the view that "the chance of his fracturing his skull would have been very much less…; indeed he might not have sustained frontal fractures"; and the other said, "I think there is very good reason to believe that a crash helmet would have cushioned the blow to the head, and the injury would consequently have been less serious". On that evidence, the Judge arrived at the finding (which is not challenged) that, while wearing a crash helmet would not have prevented or diminished the risk of the collision occurring, it "would probably have reduced the gravity of his head injuries".
No comparable case was cited to us where, although the conduct of the plaintiff in no way contributed to the accident itself, his act or omission could be said to have contributed to the nature or extent of the injuries he sustained as a result of the accident. But Miss Heilbron did not contest that if, as a result of his contributory negligence, a plaintiff suffers greater injury than he would otherwise have sustained, his entitlement to compensation should reflect that fact. In our judgment, Miss Heilbron was right in not challenging that proposition. Section 4 of the Law Reform (Contributory Negligence) Act, 1945, defining "damage" asincluding "loss of life and personal injury", provides by Section 1(1) that, "Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, … the damages recoverable in respect thereof shall be reduced to such an extent as the Court thinks just and equitable having regard to the claimant's share in the responsibility for the damage".
The first question, accordingly, is whether this plaintiff was guilty of contributory negligence. In Jones v. Livox (1952 2 Queen's Bench 608) Lord Justice Denning, as he then was, said, "Just as actionable negligence requires the foreseeability of harm to others, so contributory negligence requires the foreseeability of harm to oneself. A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might be hurt himself; and in his reckonings he must take into account the possibility of others being careless". Respectfully adopting this test, it seems clear that the plaintiff, travelling through what we were informed is a busy traffic area, ought reasonably to have foreseen the possibility of his being involved in an accident even though he himself drove with the greatest care.
But ought he also to have been mindful of the possibility that were he, riding his moped, involved in an accident, he could well sustain greater hurt if he failed to wear a crash helmet? The learned Judge answered that question in the negative and so absolved the plaintiff from contributory negligence. For the defendant it is submitted on two grounds that this finding is erroneous. Reliance is first placed upon the provisions of the Highway Code which, in accordance with the Road Traffic Act, 1960, Section 74, "….may in any proceedings (whether civil...
To continue reading
Request your trial
- Freeborn v Thomas (Note)
- Drage v Smith
- McGee v Francis Shaw & Company Ltd
- Sukatno v Lee Seng Kee