Commentary - Motor case payouts depend on contributory negligence

In recent motoring cases involving issues of contributory negligence, the issue of inevitability of ...

In recent motoring cases involving issues of contributory negligence, the issue of inevitability of a collision has been considered by the courts.

In the case of Jukes v Etti (2006), it was held that a pedestrian was 40% contributory negligent as he had crossed the road when it was unsafe to do so, even though the motorist had not kept a reasonable lookout.

Similarly, the case of Ehrari v Curry (2006) shows an even more robust stance where a motorist could only be held 30% responsible for the injuries to a child who ran into a busy road without looking.

The court had some sympathy to a motorist caught in an unavoidable situation with a careless pedestrian but was less sympathetic in a similar situation between a motorist and motorcyclist, as shown in Davis v Schrogin (2006).

A driver attempting a U-turn in a line of queuing traffic could not have avoided the collision with a motorcyclist who was overtaking. Despite there being five-car lengths between the driver and the motorcyclist when the driver commenced his manoeuvre, the court held that there was no basis of contributory negligence on the part of the motorcyclist, as the motorcyclist had no chance of avoiding the collision.

When considering contributory negligence in motor cases, the courts are assessing the degree to which the accident could have been avoided. In recent cases, this has favoured the motorist in a collision with a careless pedestrian. However, apportionment of blame and contributory negligence must turn on the facts of each individual case.

- These law reports are contributed by national law firm Berrymans Lace Mawer (www.blm-law.com).

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