Can I still claim damages if the accident was partly my own fault?

Contributory negligence essentially means that any damages awarded will be reduced by such an extent as the court considers is “just and equitable”, taking into account the pursuer’s share in the responsibility for the damage sustained.

The concept of contributory negligence is enshrined in Section 1(1) of the Law Reform (Contributory Negligence) Act 1945, which states: "Where any person suffers damage as the result of his own fault and partly the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but 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 onus of proving that contributory negligence ought to apply will rest with the party defending the claim. In general, the decision is one based on the facts and circumstances of the case. Further, while the above section sets out the general concept of when contributory negligence will apply, it does not set out how the responsibility is to be apportioned between the parties.

The common law has generally defined two aspects of how to apportion the blame; namely the "causative potency" of each party, and the "relative blameworthiness".

The issue of contributory negligence has recently been considered in the 2022 Court of Session case of Sandra Cameron & Another v Ifeanyi Nwanko & Another [2022] CSOH 7.

On 8 April 2017, at approximately 11.50pm, the first pursuer was crossing a four-lane carriageway on North Hanover Street, Glasgow, when she was struck by a taxi driven by the first defender. She sustained serious injuries, with permanent consequences.

The defenders denied liability and contended that the accident was caused, or at least materially contributed to, by the fault of the first pursuer. The action came before Lord Tyre for a proof before answer restricted to liability.

Evidence was heard that the first pursuer had commenced crossing the road when a taxi, which had just proceeded through a set of green traffic lights to execute a right hand turn onto North Hanover Street, struck her, causing serious injury.

The critical factual issues that fell to be determined were, firstly, whether or not the taxi had been driving in the incorrect lane, as maintained by the pursuers, and secondly, whether or not the taxi had been driving at excessive speed when the collision occurred.

It was submitted on behalf of the pursuers, and not disputed by the defenders, that the duty of care incumbent upon the defender was to keep a good lookout; not to drive at excessive speed; and to adhere to the lane markings regulating the flow of traffic.

Evidence was given by attending police officers and by collision investigation experts. Lord Tyre concluded that, on balance, it was far more likely than not that the defender had cut the corner while executing the right-hand turn manoeuvre and so had been proceeding in the wrong lane, and that he had been driving at excessive speed.

In assessing the issue of contributory negligence, Lord Tyre referred to the case of Jackson v Murray SC (UKSC) 105. In that case, Lord Reed explained that when assessing contributory negligence it was necessary to take account of both the blameworthiness of the parties, and the causative potency of their acts. He regarded the potentially dangerous nature of a car being driven at speed as an element of blameworthiness, rather than causative potency. Lord Tyre held that the same would apply to a car being driven in the wrong lane.

As regards causative potency, Lord Reed contrasted the case of a pedestrian who steps directly into the path of car being driven at a reasonable speed (as in Ehrari v Curry [2007] EWCA Civ 120), where the more direct and immediate cause is the conduct of the pedestrian, with a case such as Eagle v Chambers [2004] RTR 115, in which a driver strikes a pedestrian who has been careless of her own safety but has been in his line of vision for long enough to have easily avoided her.

In the Cameron case, Lord Tyre held that the actions of both parties were of causative significance. Mr Nwankwo was driving in the wrong lane. Ms Cameron placed herself in a hazardous position by choosing to cross the road at a point where there was no protection from oncoming traffic, in circumstances where she should reasonably have been aware that it would be difficult to be seen by approaching drivers. Although there was some blameworthiness on the part of the pursuer, Lord Tyre considered that her blameworthiness was less than that of the pursuer in Jackson v Murray, who ran out from behind a stationary bus into the path of a car that was being driven in the correct carriageway, but at an excessive speed.

In the whole circumstances, the trial judge held that the defender was more blameworthy than the first pursuer. Contributory negligence was assessed at one third.

In summary, a claim can still be brought where the pursuer is partly, but not wholly, responsible for an accident giving rise to personal injury.

If you wish to discuss bringing a claim for damages in respect of an injury sustained, our team of personal injury solicitors is here to help.

Email Jacqueline Raitt
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