CONTRIBUTORY NEGLIGENCE: THE SECOND PLAINTIFF

AuthorRonald Davies
DOIhttp://doi.org/10.1111/j.1468-2230.1950.tb00163.x
Publication Date01 Apr 1950
CONTRIBUTORY NEGLIGENCE
:
THE
SECOND PLAINTIFF
WHAT
is the position of
a
second plaintiff-husband, master or
parent-suing for damages arising out of an act of negligence
committed against the first plaintiff-wife, servant or child-who
has been guilty of contributory negligence
?
In
Mallett
v.
Ditnlt
[1940] 2
K.B.
180
a married woman
was injured through the negligence of the defendant. In an action
for damages brought by her and her husband she was found guilty
of some contributory negligence and the damages awarded to her
were, accordingly, reduced under the Law Reform (Contributory
Negligence) Act,
1945,
s.
1
(1).
In respect of the special damages
claimed by the husband for medical and household expenses,
Hilbery
J.
held that the husband’s cause of action was personal to
him and distinct from the claim made by his wife, and
it
was not
defeated by the fact that she was guilty of contributory negligence;
as
the contributory negligence was the fault of the wife and the
husband had not been at fault in making his own claim
in
respect
of
the damage which he had suffered the husband was not a person
who had suffered damage ‘as the result partly of his own fault’
within the meaning of the Act of
1945;
and therefore he was
entitled to recover in full the damages claimed.
Similar questions have been decided in the opposite way in
Canada. In
Knowlton
v.
Hydro Electric Power ‘Commission
of
Ontario
(1925)
58
O.L.R. 80-a case in the High Court of Ontari-
a
wife and her husband sued in respect of an injury done to her
by the defendants’ negligence. The wife was held to be guilty of
contributory negligence, and her damages
and those
of
her husband
were reduced under the Contributory Negligence Act,
1924.
The
intricacies of that statute need not detain us, for the ground
for
the decision was stated to
be
that under the law as
it
stood before
the passing
of
that Act the action of the husband must have
suffered the same fate aR an action by the wife brought at that
time, that is,
it
must have been dismissed.
McKittrick
v.
Byers
(1925)
58
O.L.R.
158,
decided
in
the Court
of Appeal for Ontario, reinforces this view. This was an action by
an infant and her father to recover damages for her injury caused
by the defendant’s negligence. As the cause of action arose before
the passing; of the
1924
statute, the contributory negligence of the
daughter was held to defeat her claim. It was further held that
the father’s claim was thereby defeated also.
Yachuk
v.
Oliver
Blah
Co.,
Iitd.
119491
A.C.
886
is
a Canadian
cage which was recently before the Privy Council. Here a
boy
of
218

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