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GAZETTE
JULY-AUGUST 1979
Seatbelts, crash helmets and
contributory negligence
ANTHONY KERR
Hamill
r.
Oliver
|Supreme Courtl - unreported. 24/6/1977 (34/1976).
Giving judgment in the Judicial Committee of the Privy
Council Viscount Simon had this to say of the defence of
contributory negligence: "all that is necessary to establish
. . . is to prove to the satisfaction of the jury that the
injured party did not, in his own interest, take reasonable
care of himself and contributed, by this want of care, to
his own injury. For when contributory negligence is set up
as a shield against the obligation to satisfy the whole of
the plaintiffs claim, the principle involved is that, where a
man (sic) is part author of his own injury, he cannot call
on the other party to compensate him in full . .
Doubt
has been raised elsewhere
2
about the relationship between
the concepts of contributory negligence and mitigation of
damages. Specifically whether contributory negligence
extends to failure to take precautions which would not
have prevented the accident but would have rendered the
injuries less severe. Hicks has pointed out that 19th
century decisions on contributory negligence show that
where the plaintiffs conduct did not contribute to the
occurrence of damage, but only increased its extent, it
was not contributory negligence.
3
This is understandable
in the light of the then existing rule that a plaintiff who
was contributorily negligent failed in his action; and that
this does not represent the position today is made clear by
Section 34 (1) of the Civil Liability Act 1961 which states
that 'where . . . it is proved that the
damage
suffered by
the plaintiff was caused partly by the negligence or want
of care of the plaintiff . . . and partly by the wrong of the
defendant, the damages recovered in respect of the said
wrong shall be reduced by such amount as the court
thinks just and equitable . . .' The distinction drawn above
was however raised in argument before the Superme
Court in
Hamill
v.
Oliver,
(Supreme Court, 24 June 1977
— unreported. Ref. 34/1976).
The plaintiff was a passenger in a car which was
involved in a collision with the defendant's car. The
defendant admitted negligence but sought to have a
question on contributory negligence left to the jury on the
ground that, at the time of the accident, the plaintiff was
not wearing a seat belt, even though one was fitted in the
car for use by the front seat passenger. The trial judge
refused to allow this in the absence of evidence that the
accident
would not have happened if the plaintiff had been
wearing a scat belt. The Supreme Court
4
unanimously
overruled him.
The English and Commonwealth courts had already
had an opportunity to consider this and a considerable
body of ease law had developed. The leading case is
undoubtedly
Froom
r.
Butcher
5
and was approved by the
Supreme Court here. A strong court of appeal
6
had held
that the question to be asked was, 'what was the cause of
damage?' anc' confirmed both the trial judge's finding that
failure to wear a seat belt was contributory negligence an<J,
his subsequent decision to reduce the damages by 20%.
Prior to
Froom v. Butcher
there had been a number of
conflicting first instance decisions.
7
In both
Hamill
and
Froom
the passenger was in no
way to blame for the accident, which was caused solely
by the defendant's negligent driving, and it is somewhat
understandable that judges are reluctant to allow the
defendant to say "well you should have been wearing a
seat belt". This is apparent from the judgment of
O'Connor J. in
Smith v. Blackburn
1
where he says "the
idea that the insurers of a grossly negligent driver should
he relieved in any degree from paying what is proper
compensation for injuries is an idea that offends ordinary
decency". However the idea that once a defendant has
been negligent he is liable automatically to all the damage
caused is no longer part of the common law. As Millner
points out: "The conclusion that once some carelessness is
shown, some behaviour falling below the standard of a
reasonable person, then liability follows to whomsoever is
injured and in whatsoever respect expresses a penal
principle. The enquiry into reasonableness as a basis of
liability to make compensation for harm suffered by the
particular plaintiff and to this extent it is a genuine
enquiry into blameworthiness"
8
This applies as much as to the plaintiff as it does to the
defendant; this is why the important question is what was
the cause of the damage, not the accident. This was
always the approach in the Admiralty Court which did
apportion liability before 1961.
9
Once this is clear a defendant must then first show that
the device, be it a seat belt or a crash helmet,
10
would
have prevented or reduced the plaintiffs injuries, and
secondly the unreasonableness of the plaintiffs
ominission.
The Supreme Court were of the opinion in
Hamill
that the
type of accident would not
have happened if she had been wearing a seat
belt. She had
been thrown forward and to
the right onto the gear stick and fractured the 5th, 6th
and 7th ribs on her right side and suffered a collapse of
the lung. They held that a person who travels in the front
scat of a car without wearing a seat belt must be held
guilty of contributory negligence (subject to excusing
circumstances) if the injuries in respect of which he sues
were caused wholly or in part as a result of his failure to
wear a scat belt. The court felt that the plaintiff could not
but have been aware of the advisability of wearing a seat
hell and the risks incurred if she failed to do so. But they
concluded with this
"As the accident was caused by the negligent
driving of the defendant and as the injuries resulted
only to a minor extent by reason of the failure to
wear a scat belt thv jury should be directed that in
the apportionment of degrees of fault between
plaintifT and defendant much the greater attribution
of fault should he held to fall on the defendant as the
person primarily responsible for the plaintiffs
injuries"."
122