NOTES OF CASES
| Published date | 01 September 1972 |
| DOI | http://doi.org/10.1111/j.1468-2230.1972.tb02364.x |
| Date | 01 September 1972 |
NOTES
OF
CASES
THE
COST
OF
RIDING BARE-HEADED
IN
O’Connell
v.
Jackson,‘
the Court of Appeal was given another
opportunity to consider the circumstances in which
a
plaintiff’s
failure to take steps to safeguard himself against injury might be
regarded as contributory negligence. The plaintiff was injured when
his moped came into collision with the car which the defendant was
driving negligently.
It
was not suggested that the plaintiff could
have avoided the collision: but, as he was not wearing
a
crash
helmet, he suffered greater physical injury than he might otherwise
have done. The trial judge found that the plaintiff was not guilty
of contributory negligence, and the defendant appealed to the Court
OF
Appeal.
In delivering the judgment
of
the Court of Appeal, Edmund
Davies
L.J.
commented:
“
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.’’
The court had therefore to decide whether the Law Reform (Con-
tributory Negligence) Act governed situations of this type.3
It
was
accepted that the language of that Act was wide enough to cover
both the present situation, in which any negligence on the plaintiff’s
part affected the extent of his injuries, as well as the more usual
situation where the plaintiff’s action had contributed to the causation
of the accident.
The court went on to decide whether the conduct of the plaintiff
could, in fact, be deemed negligence, and for this purpose adopted
the test laid down by Denning
L.J.
in
Jones
v.
Livox Quarries
Ltd.4
It
seemed clear that the plaintiff, travelling through a busy traffic
area, ought reasonably to have foreseen the possibility of being
involved in an accident, even though he drove with the greatest
care. The further question then arose as to whether the plaintiff
1
[l97Q]
1
Q.B.
2VO;
[1971]
3
W.L.R.
463.
3
he wording of the governing section
(8.
1
(1)
)
of the Act
is:
“
Where anv
19711
3
W.L.R. at
p.
465.
person
suffe&
damage
as theresult partly of
his
own
fault and partly of thk
fault of any other persons or persons
. . .
the
damages
recoverable in respect
thereof shall be reduced
to
such extent as the court thinks just and equitable
having regard to the claimant’s share in the responsibility for the
damage.
. .
.”
4
[1952]
2
Q.B.
608,
615:
‘‘
Just as actionable negligence requires the fore-
seeability
of
harm to others,
so
contributory negligence requires the foresee-
ability 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.”
525
THE
MODERN
LAW
REVIEW
VOL.
36
526
ought, also, to have been mindful of the possibility that, were he
involved in an accident, he might well sustain greater hurt if he
failed to wear a crash helmet.5
It
was true that no use had been made of the power conferred
by the Road Traffic Act
1962
to require the wearing of protective
headgear in such cases as the present; but the same Act stated
that the provisions of the Highway Code:
“
. .
.
may
in
any pro-
ceedings (whether civil
or
criminal
. .
.)
be relied upon by any party
to the proceedings as tending to establish
or
to negative any liability
which is in question in those proceedings.” The latest edition of the
Highway Code contained the advice
8:
“
When on a motor cycle,
scooter
or
moped, always wear a safety helmet.”
The Court of Appeal concluded, therefore, that the responsibility
of
the plaintiff should
be
assessed at
15
per cent. and his damages
reduced accordingly.
It
is well known that road and employment accidents today
account
for
the major part of accident litigation.
It
is, therefore, of
interest to compare this decision with the attitude of the courts when
deciding employment cases; particularly as there is no shortage of
authority upon which to base a comparison, since
it
all too frequently
occurs that a worker is injured when failing to use protective equip-
ment. Such
a
comparison would seem to be relevant, even though
it must be made with some caution, since
it
has, on more than one
occasion,1o been judicially stated that there are dangers
in
applying,
to
employment cases, tests which have been used in traffic accidents.
These judicial reservations may have been expressed because the
courts have, in the past, purported to adopt a special standard when
considering whether a worker has shown a negligent disregard for
his own safety.” The justification in former times for taking
a
5
The trial judge had answered this question in the negative, but the Court of
6
6.
41.
7
s.
74
(5).
8
Rule 24 of the edition issued
as
a
result
of
a parliamentary resolution passed
in
December
1968.
The present case was distinguished from
Hilder
v.
Associated Portland Cement
Manufacturers Ltd.
[1961] 1
W.L.R.
1434
(where Ashworth
J.
had declined
to hold that the failure of
a
motor-cyclist
to
wear a crash helmet constituted
conttributory negligence) for, at that time, the Highway Code did not contain
the recommendation regarding
safety
helmets. Moreover, in
Hilder’s
case
(unlike the present case) the court had not been satisfied that the wearing
of the crash helmet would have prevented the plaintiff’s injury. Similarly,
in
MacDonnell
v.
Kaiser
(1968)
68
D.L.R. (24
104
(car safety. belts)
the
court had not been satisfied
as
to
the effectiveness of the equipment
in
reducing
the risk of injury.
10
e.g.
Lord Reid in
Stapley
v.
Gypsum Mines Ltd.
[1953]
A.C.
663, 681
and
Hodgson
L.J.
in
Jones
V.
Liuox Quarries Ltd.
[1952]
2
Q.B.
608, 619.
11
They have judged his conduct by asking whether he ha: exercised that degree
of
care which
. . .
an
ordinary prudent workman
. .
.
would have shown
in
t8he circumstances.
(Per
Lawrence
J.
in
Plower
v.
Ebbw
Vale
Steel,
Iron
&
Coal
Co.
Ltd.
[1934]
2
ILB.
132, 139.)
This well-known criterion was adopted
and explained
by
the House of Lords:
“
What is all important
is
to adapt
the
standard
of
what is negligence to the facts, and to give
due
regard to the
Appeal did not accept this finding.
SEPT.
1972
NOTES
OF
CASES
527
tolerant view of a worker’s conduct was, of course, that, if he were
found negligent, his claim would be defeated. The correctness of
this tolerance has never been denied, although the reason for it
ceased to exist in
1945
12:
it
is questionable, however, whether any
particularly lenient standard is nowadays applied where the worker’s
injury has occurred when he is not employing protective equipment.
A
more fundamental difference between road accidents and
industrial accidents is that, on the highway, the typical accident
situation is one in which both plaintiff and defendant are
active
parties at the time of the impact which causes the plaintiff’s injury;
whereas, in many industrial accidents, the employer has been
passive
rather than active. Employer’s liability is essentially an organisa-
tional responsibility
:
it
is responsibility for the introduction and
maintenance of safety standards. There are, of course, a large
number of accidents in which one workman’s actions cause
injury
to another person, and the question
of
the employer’s vicarious
liability is put in issue
13;
but, in many instances, the alleged
negligence of the employer consists in allowing the operation (within
his organisation) of a system under which
it
is possible for a worker
to conduct himself in such a way as to cause injury to himself. The
question, in such cases, is not whether the worker has been contribu-
torily negligent; it is whether there has been any primary negligence
on the part of the employer, in permitting the worker to operate
without a proper regard to his own safety.
In
such cases, the careful
worker would usually have avoided injury entirely.
The employer’s alleged negligence, in industrial accidents, may
consist in failure to provide a safe system of work, according to
the criteria of the common law: alternatively, it may consist in
the breach of statutory provisions. Both common law and statutory
standards must be considered in cases in which the worker’s injury
has been sustained through his failure to utilise protective
equipment.
There are, at common law, reported cases of accidents occurring
through failure to use protective equipment, in which the employer
has been held liable,I4 and others where there has been deemed to
have been no negligence at all,
on
the part of the emp10yer.l~ Each
actual conditions under which men work in
a
factory or mine, to the
long
hours
and the fatigue, to the slackening of attention which naturally comes
from constant repetition of the eame operation, to the noise and confusion in
which the man works, to
his
preoccupation,
in
what he
is
actually doing at the
cost perhaps
of
some inattention to his
own
safety.”
(Per
Lord Wright in
Caswell
v.
Powell Duflryn Associated Collieries Ltd.
[1939] 3
All E.R.
722,
739.)
12
The
year
of
the
enactment of the Law Reform (Contributory Negligence) Act.
1s
c.g. Stapley
v.
Gypsum Mines Ltd.
[1953]
A.C.
663;
I.C.I.
Ltd.
v.
Skatwell
14
c.g.
Croolcall
v.
Vickcrs-Armstrong Ltd.
[1955]
2
All E.R.
12;
Clifford
v.
15
e.g.
Woods
v.
Durable Suites Ltd.
[1953] 2
All E.R.
391;
QuaZcast
(
WoZoeT-
[1965]
A.C.
656.
Charles
H.
Challen
&
Son
Ltd.
[1951]
1
All E.R.
72.
hampton) Ltd.
v.
Haynes
[1959]
2
All
E.R.
38.
To continue reading
Request your trial