Davies v Swan Motor Co [1949]: A Legal Case Summary

Case name & citation: Davies v Swan Motor Co [1949] 2 KB 291

The case of Davies v Swan Motor Co [1949] addresses the principle of contributory negligence within tort law.

Brief facts of the case

The plaintiff, Davies, was standing on the offside step of a dust lorry, which was traveling along a narrow road. This placed him in a hazardous position. A bus, driven by the defendant’s employee, attempted to overtake the lorry, resulting in a collision that caused Davies’ death.

Issue that arose

What must be shown to establish contributory negligence?

Decision of the Court in Davies v Swan Motor Co

The Court of Appeal held that both the bus driver and the driver of the dust lorry were negligent and jointly liable for the collision. However, it also found that Davies had contributed to the accident through his own negligence, specifically by standing in a dangerous position on the side of the lorry.

The Court held that Davies was one-fifth responsible for the incident due to his negligence. His decision to stand on the steps of the lorry was deemed a lack of reasonable care for his own safety, contributing to the circumstances that led to the accident.

The case applied the Law Reform (Contributory Negligence) Act 1945, which allows for a reduction in damages awarded to a plaintiff if they are found to have contributed to their own injury.

Judicial commentary

Bucknill LJ stated that when evaluating contributory negligence, it is not necessary for the plaintiff’s negligence to constitute a breach of duty towards the defendant. Instead, it suffices to demonstrate that the plaintiff failed to exercise reasonable care for their own safety.

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Bankstown Foundry Pty Ltd v Braistina [1986]: A Quick Summary

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Bankstown Foundry Pty Ltd v Braistina [1986]: A Quick Summary

Case name & citation: Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301

Court: High Court of Australia
Judges: Mason, Wilson, Brennan, Deane and Dawson JJ.
Date: 13 May 1986
Area of law: Negligence; Duty of care; Safe system of work; Contributory negligence

What is the case about?

The case revolves around a workplace injury sustained by Mr. Braistina who worked as a machinist for Bankstown Foundry Pty. Ltd. He had extensive experience in the metal trades, having worked in Yugoslavia and Australia. On December 5, 1979, while engaged in drilling holes in cast iron pipes weighing about sixty pounds each, he suffered a cervical spine injury that led to a disc lesion.

Case Facts (Bankstown Foundry Pty Ltd v Braistina)

Work Process: Mr. Braistina was required to lift pipes from a pallet, position them on a drilling machine, and stack them after drilling.

Injury: The injury occurred after approximately three hours of work and after handling about 115 pipes. Mr. Braistina used a different lifting method than instructed, which involved directly inserting the pipe into the machine rather than lowering one end to the ground first.

Foreman’s Evidence: The employer’s foreman had previously spoken to Mr. Braistina on proper lifting techniques and noted that he had observed deviations from this method.

Use of Hoist: A mechanical hoist was also available for lifting the heavier pipes, but the respondent claimed he had sought permission to use it for the four-inch pipes, which the foreman denied. However, the foreman testified that he had not received any complaints from the respondent regarding the weight of the pipes and had instructed employees to use the hoist if they felt the pipes were too heavy.

Trial Court Findings

The trial judge found the employer liable for negligence, emphasizing that a safe work system should have mandated the exclusive use of the mechanical hoist to eliminate risks associated with lifting heavy pipes. The judge ruled that while Mr. Braistina was partly at fault (10% contributory negligence) for not adhering to the proper method, the employer failed to enforce safety protocols adequately. The employer should have mandated the use of the hoist.

Appeal

The Court of Appeal upheld the trial judge’s decision, concluding that:

The employer had a duty to provide a safe system of work and to enforce it.
The finding of contributory negligence was not contested by Mr. Braistina.

High Court Considerations in Bankstown Foundry Pty Ltd v Braistina

Duty of Care: The High Court emphasized that employers must take reasonable care to provide a safe working environment, particularly in light of modern safety standards.

Risk Assessment: The Court noted that the risk of injury from lifting and twisting movements was foreseeable and that the employer’s failure to require the use of the hoist was a breach of their duty.

Standard of Care: The High Court clarified that while the traditional reasonable care standard applies, recent decisions reflect a growing expectation for employers to adopt stringent safety measures to prevent workplace injuries.

Conclusion

The High Court ultimately dismissed the appeal, reinforcing the findings of the trial court and the Court of Appeal.

The judgment affirmed that reasonable care in an employer’s duty extends to implementing effective safety measures, particularly when risks are foreseeable and can be mitigated through practical means.

Quote from the case (Bankstown Foundry Pty Ltd v Braistina)

“The fact that finally establishes the liability of the appellant is the ready availability of the hoist, providing an alternative means of handling the pipes which would have eliminated any risk whatsoever. There was no undue expense or difficulty occasioned to the appellant in prescribing its use. Once it is accepted that such use would eliminate the risk of injury, it necessarily follows that a prudent employer exercising reasonable care would require that it be used, at least for those parts of the process where otherwise it would be necessary to engage in a full lift of a pipe.”

(By Mason, Wilson and Dawson JJ.)

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https://jade.io/article/67267

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Revill v Newbery [1996]: A Case Summary

Case name & citation: Revill v Newbery [1996] QB 567; [1996] 1 All ER 291; [1996] 2 WLR 239

Court and jurisdiction: Court of Appeal (Civil Division), England and Wales
Decided on: 02 November 1995
The bench of judges: Neill LJ, Evans LJ, Millett LJ
Area of law: Occupier’s liability; Negligence; Trespass to land; Contributory negligence

What does the case deal with?

Revill v Newbery [1996] deals with issues related to trespass and self-defense. To what extent can force be used to protect one’s property?

Facts of Revill v Newbery

Newbery, a 76-year-old pensioner, was the owner of an allotment shed. There were previous break-ins in his shed so he decided to sleep in it to protect from intruders.

One night, a man named Revill accompanied by Grainger, attempted to break into the shed. With a view to frighten them away, Newbery used his 12-bore shotgun and fired a shot through a hole in the shed’s door. In doing so, he hit Revill and caused him serious injuries.

Criminal proceedings were initiated. Revill admitted he attempted to burgle the shed and was prosecuted accordingly. Newbery was charged with wounding offenses but was subsequently acquitted.

However, Revill brought civil actions against Newbery. He sued him for negligence and breach of duty under the Occupiers’ Liability Act 1984. He sought damages for the injuries suffered as a result of the gunshot fired by Newbery.

Defense of ex turpi causa

Newbery took the defense of the doctrine of ex turpi causa non oritur actio which means that no legal action can be founded on an immoral or illegal act. He claimed that since Revill attempted to burgle his shed, he shouldn’t be allowed to bring an action against him.

In addition, Newbery also contended that even if Revill were allowed to bring an action, his damages should be reduced by two-thirds. He was contributorily negligent for his injuries as he attempted to break-in the shed in the first place.

That is, his own actions were illegal and had contributed to the resultant injuries.

Issue

The main issue in this case was whether Newbery had a duty to prevent harm to trespassers like Revill and whether that duty was breached.

Court’s judgment in Revill v Newbery

In the first instance, the judge ruled in favor of Revill but reduced the amount of damages on account of contributory negligence.

The judge found that Newbery was negligent and that his actions fell below the standard of care that a reasonable person would exercise in similar circumstances. He had used violence in excess of reasonable or justifiable limits.

Newbery appealed.

The Court of Appeal considered the case in connection with s.1(3)(b) of the Occupiers’ Liability Act 1984.

Lord Justice Neill pointed out that Newbery had not just fired a warning shot in the air to frighten the intruders. Instead, he fired a gunshot at a horizontal level where people in the vicinity could easily be hurt.

Even though Newbery couldn’t see who was behind the door, he believed that someone was there and took direct action to injure them.

Further, the defense of ex turpi causa was rejected. Newbery’s liability for negligence should not be absolved merely because Revill himself had engaged in an illegal act (burglary). Under Section 1 of the Occupiers’ Liability Act 1984, an occupier cannot treat a trespasser as an outlaw. This means that an occupier owes a duty to a trespasser to ensure that the trespasser does not suffer injury while on the premises.

Hence, the Court of Appeal dismissed the appeal.

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Hackshaw v Shaw [1984]: A Case Summary

Case name & citation: Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614

The concerned Court: High Court of Australia
Decided on: 11 December 1984
The bench of judges: Gibbs C.J., Murphy, Wilson, Deane and Dawson JJ.
Area of law: Negligence; Occupier’s liability; Duty of care; Trespass to land; Contributory negligence

What is the case about?

Hackshaw v Shaw [1984] is a tort law case that revolved around issues of negligence, trespass, and duty of care. It dealt with the question of whether an occupier of property can be held liable for causing an injury, though unknowingly, to a trespasser.

Facts of the case (Hackshaw v Shaw)

The defendant, Shaw, was the owner of a farm located at Korong Vale in Victoria. There was a petrol tank at the farm which was installed for refuelling any motor vehicles used on the farm. On many occasions, it was found that the petrol was stolen at night. Therefore, Shaw decided to lie in wait near the petrol tank to catch the thieves the next time.

One night, Cox, who was driving a stolen car, went to the defendant’s farm. He was accompanied by a sixteen-year-old girl, Hackshaw – the plaintiff. Cox turned off the headlights and began to steal petrol.

Shaw, not knowing that Hackshaw was in the car, fired two warning shots with his rifle at the vehicle. Unfortunately, Hackshaw was hit who was in the front seat of the car.

As a result, Hackshaw sued Shaw seeking compensation for her injuries.

Issues raised

The main issue that laid before the Court, in this case, was whether Shaw could be held liable for the injuries sustained by Hackshaw.

Did Shaw owe a duty of care to Hackshaw despite the fact that she trespassed on his land?

Was there a breach of duty when Shaw fired at the car?

Did Hackshaw contribute to her injuries by trespassing on the land?

Judgment of the Court in Hackshaw v Shaw

The Court decided that Shaw owed a duty of care to Hackshaw to avoid injuring her with his rifle. He should have reasonably foreseen the possibility of a passenger in the car and that firing the rifle at the car was an unreasonable and negligent action.

However, it was also found that since Hackshaw accompanied Cox in entering Shaw’s property without authorization, she had contributed to the injury.

Quotes from the case

Deane J. said as under:

“All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant’s occupation of premises and the manner of the plaintiff’s entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A prerequisite of any such duty is that there be the necessary degree of proximity of relationship.

The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member. The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk.

Where the visitor is lawfully upon the land, the mere relationship between occupier on the one hand and invitee or licensee on the other will of itself suffice to give rise to a duty on the part of the occupier to take reasonable care to avoid a foreseeable risk of injury to him or her. When the visitor is on the land as a trespasser, the mere relationship of occupier and trespasser which the trespasser has imposed upon the occupier will not satisfy the requirement of proximity. Something more will be required.

The additional factor or combination of factors which may, as a matter of law, supply the requisite degree of proximity or give rise to a reasonably foreseeable risk of relevant injury are incapable of being exhaustively defined or identified. At the least they will include either knowledge of the actual or likely presence of a trespasser or reasonable foreseeability of a real risk of such presence.”

Refer full text of the case here: https://jade.io/article/67169

Conclusion

The given case clarifies that it is possible in legal contexts that an occupier of property can owe a duty of care to a trespasser. This duty arises if it can be established that it was reasonably foreseeable that the trespasser could be injured due to the negligent actions of the occupier.

Therefore, it can be said that in certain circumstances, a duty of care may be owed to individuals who commit the illegal act of trespass. Occupiers/owners may still have a duty to exercise reasonable care to prevent harm to trespassers if it is foreseeable that their actions could cause harm. Nevertheless, the existence and extent of duty shall depend on specific case facts, circumstances, legal standards, and precedents.

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A Summary of March v Stramare (E & MH) Pty Ltd (1991)

March v Stramare (E & MH) Pty Ltd (1991) is a famous tort law case that highlighted the complexity of the ‘but for’ test in determining causation. It concerns the issue of finding the material cause of an injury if there are multiple causes contributing to it.

Case name & citation:	March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506; (1991) 99 ALR 423
Court:	High Court of Australia
Decided on:	24 April 1991
The bench of judges:	Mason CJ, Deane, Toohey, Gaudron and McHugh JJ.
Area of law:	Negligence, causation, the ‘but for’ test

Facts of the case (March v Stramare)

Outside their fruit and vegetable market, the defendants had parked their truck in the center of a six-lane road. The truck was stationed there to be loaded with bins of fruit and vegetables. The street was illuminated, and the trucks’ hazard lights were turned on. The plaintiff, who was driving too quickly and under the influence of alcohol, collided with the rear of the parked truck. The plaintiff sustained injuries and filed a lawsuit against the defendant, stating that his injuries were caused by the defendant’s negligence in parking the truck in the center of the road.

Issue

Whose negligence had caused injury to the plaintiff? Was it because of the defendant’s negligence or the plaintiff’s own carelessness in driving? How can the ‘but for’ test be applied?

Initial judgment

In the first instance, the trial judge apportioned liability between the two parties as 70% (plaintiff) and 30% (defendant). The decision was appealed to the Full Court of the Supreme Court of South Australia where it was held that the plaintiff’s injuries were entirely as a result of his own negligence. The case was disputed again and was heard before the High Court.

What is the ‘but for’ test?

The ‘but for’ test is a universal legal test used by courts to establish a causal link between the actions of the defendant and the injury suffered by the claimant. While the ‘but for’ test is the fundamental rule, it has no application when there are several causes of an accident.

The essence lies in establishing a causal link between the defendant’s negligent conduct and the claimant’s injury where it can be demonstrated that the claimant would not have suffered injury had the defendant’s negligence not been a factor; that is, the injury would not have occurred ‘but for’ the negligence of the defendant.

Judgment of High Court in March v Stramare

The High Court upheld the trial judge’s decision.

The Court found that the concept of causation can be difficult and an event can be influenced by a number of causes that produce it. For example, if the truck had not been parked in the middle of the road, the accident would have been averted. Conversely, had the plaintiff not been driving the vehicle at an excessive speed, the accident would also have been prevented.

In March v Stramare (E & MH) Pty Ltd, the High Court ruled that the ‘but for’ test is not the exclusive way to determine causation. The High Court pointed out that the test is ineffective in situations where there are multiple causes of damage, each of which is sufficient to bring the damage.

Therefore, Chief Justice Mason suggested using common sense principles and value judgments based on public policy considerations to resolve the issue.

It was concluded that both the defendant and the plaintiff had acted negligently, and their respective negligence had played a role in causing injuries to the plaintiff. The damages to which the plaintiff was entitled were reduced by 70% to account for his own negligence.

Reasoning behind the decision – Multiple causes

The ‘but for’ test is challenging to apply when the claimant’s injury stems from multiple causes or when there are intervening acts between the defendant’s negligence and the claimant’s injury. In such cases, applying the ‘but for’ test may result in the unwanted outcome that none of the acts is the cause of the damage.

To put it differently, if the courts employed the ‘but for’ test, they would find that none of the acts were the direct cause of the loss suffered by the claimant because the same injury would have occurred without one or the other.

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Imbree v McNeilly (2008): A Detailed Summary

Imbree v McNeilly (2008) is a tort law case on the negligence of a learner driver. It is concerned with issues related to the duty of care owed by a learner driver to their supervisor and whether the standard has to be judged according to a reasonably competent driver or whether it can consider inexperience.

Case name & citation: Imbree v McNeilly and Another [2008] HCA 40; (2008) 248 ALR 647; (2008) 236 CLR 510

The concerned Court: High Court of Australia

Decided on: 28 August 2008

The bench of judges: Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ

Area of law: Negligence; duty of care; standard of care; contributory negligence

Given below are the case facts and decision:

Driver’s Age and Experience (Imbree v McNeilly)

Paul Imbree and Jesse McNeilly were on a 4WD trip in the Northern Territory along with others. Imbree was aware that McNeilly was 16 years and 5 months old, had limited driving experience, and did not possess a driving license or learner’s permit.

Driving Rotation

At various times throughout the journey, Imbree allowed both his own son and McNeilly to drive the four-wheel-drive station wagon for 30-40 minute intervals. On one occasion, Imbree permitted McNeilly to drive on a gravel road. Imbree sat in the front passenger seat, next to McNeilly.

Accident facts

McNeilly and Imbree were driving along when they noticed a piece of tyre on the road. McNeilly attempted to avoid the tyre by steering to the right. Imbree yelled at McNeilly to slow down, but he didn’t. When the vehicle reached the far right-hand side of the road, McNeilly suddenly made a sharp left turn and accelerated. As a result, the vehicle rolled over. The accident caused Imbree to sustain spinal injuries that left him tetraplegic.

Initial Trial (Imbree v McNeilly)

Imbree filed a negligence claim against McNeilly. The primary judge applied Cook v Cook (1986) 68 ALR 353 at first instance in the Supreme Court of New South Wales. He ruled in favor of Imbree on the grounds that McNeilly had driven carelessly, beyond what could be attributed solely to his inexperience in attempting to avoid the tyre. Damages of over $9.5 million were awarded to Imbree. However, the primary judge reduced Imbree’s damages by 30% due to contributory negligence on his part. He had failed to provide proper instructions to McNeilly not to suddenly change direction or speed up.

Court of Appeal

McNeilly filed an appeal with the New South Wales Court of Appeal. The Court of Appeal upheld the trial judge’s finding by a 2-1 vote, but each member of the majority had a different take on why McNeilly’s actions violated the modified standard of care he owed to Imbree. In addition, the Court of Appeal also found that Imbree’s damages should be reduced by two-thirds for contributory negligence. Imbree and McNeilly both appealed the decision of the Court of Appeal to the High Court.

The issue in Imbree v McNeilly

The legal issue in this case was whether McNeilly owed a modified standard of care to his supervisor (Imbree) because of lack of experience, or whether the standard of care remained the same as that is expected of a reasonable driver.

Was the judgment given in Cook v Cook, which suggested a modified standard of care for learners, still valid?

The decision of the High Court

On August 28, 2008, a majority of the High Court ruled that McNeilly owed Imbree the same standard of care as that was expected of a reasonable driver. This standard of care was not modified by the level of driver’s experience or whether they were licensed.

Further, the High Court held that even though Imbree was aware of McNeilly’s inexperience, it was insufficient to justify the adoption of a modified standard of care. The issue may be relevant to the question of contributory negligence though, it did not change the standard of care owed by McNeilly.

It was further confirmed that the trial judge correctly assessed Imbree’s contributory negligence at 30%.

Overruling Cook v Cook

In reaching its decision, the High Court reversed its previous judgment in Cook v Cook (1986).

That case established a precedent regarding the modified standard of care owed by a learner driver. But in the given case of Imbree v McNeilly, the modified standard of care established in Cook v Cook was overturned.

It clarified that in situations involving a supervisor-pupil relationship, the standard of care owed by an inexperienced or unlicensed driver is no longer adjusted to account for the driver’s inexperience. It remains the same as that is expected of a reasonable driver to avoid injury.

An unlicensed or learner driver owes the same objective standard of care to others (including supervisors) as that of a licensed driver. There is no longer a distinct or diminished standard owed by a learner driver to their supervisor or others.

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Cook v Cook (1986): A Case Summary

In this blog post, we are covering a summary of the case of Cook v Cook (1986). The case is about negligence where an inexperienced driver, encouraged by a passenger who was aware of the driver’s lack of skill, drove negligently, leading to an accident.

Given below are the case details:

Case name & citation:	Cook v Cook [1986] HCA 73; (1986) 162 CLR 376; (1986) 68 ALR 353
The concerned Court:	High Court of Australia
Decided on:	02 December 1986
The bench of judges:	Mason, Wilson, Brennan, Deane and Dawson JJ.
Area of law:	Negligence; duty of care; standard of care

Facts of the case (Cook v Cook)

The defendant, Margaret Cook, did not have and had never had a driver’s license or learner’s permit, and she was inexperienced as a driver. Irene Cook, the plaintiff, who was Margaret’s relative by marriage, was well aware of this.

During a family gathering, Margaret and Irene decided to drive to a nearby shop. MC told IC on the way that she planned to apply for a learner’s permit the next day. In response, IC stopped the car, got out, and encouraged MC to start driving immediately. MC refused at first, but with more encouragement from IC, she began to drive.

While driving through an intersection, MC purposefully accelerated and steered the car off the road to avoid hitting a parked car. This resulted in the car colliding with a concrete electricity post, causing injuries to IC.

Legal action

IC sued MC for damages based on negligence. Initially, the claim of IC was dismissed by the trial judge. The trial judge’s decision was reversed on appeal to the Full Court of the Supreme Court of South Australia, finding MC to be negligent. However, IC’s damages were reduced by 70% due to contributory negligence. MC filed an appeal in the High Court.

What was the issue?

The primary legal issue, in this case, revolves around a driver’s duty of care owed to a passenger. The question is whether the duty of care requires a driver to exercise the amount of competence and care that could reasonably be expected of a skilled and experienced driver, even if both the driver and the passenger are aware that the driver lacks the essential skills and experience.

The decision of the Court

The High Court unanimously held on December 2, 1986, that MC had been negligent and dismissed the appeal. However, there were differing opinions among the justices regarding the standard of care owed by the driver to the passenger.

Majority Opinion in Cook v Cook

The majority held that the standard of care owed by a driver to a passenger can be modified in special and exceptional circumstances. In this case, considering the trial judge’s findings that MC was inexperienced and had not obtained a learner’s permit (and this was known to both parties), IC was not an unwilling passenger and had encouraged MC to drive, and their relationship was similar to that of an instructor and pupil, the majority concluded that there were special circumstances justifying a modified standard of care. This means that MC should be judged against the standard expected of an inexperienced and unqualified driver. That is, the standard of care should be modified from what is expected of a reasonably competent and experienced driver.

However, despite the modified standard, the majority found that MC’s action of accelerating off the road to avoid a parked car was carelessness beyond what could be attributed solely to inexperience. That is, it constituted a breach of the duty of care even within the context of her lack of experience.

Summing up the case

The decision in “Cook v Cook” (1986) established the principle that in special and exceptional circumstances, the standard of care owed by a driver to a passenger can be modified from the usual standard expected of a reasonably competent and experienced driver. This means that the standard of care may be adjusted to take into account the specific circumstances, characteristics, and relationship between the driver and the passenger.

Note:

One might note that this decision was overturned in the case of Imbree v McNeilly (2008).

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Wheeler v Copas [1981]: A Quick Summary

Case name & citation: Wheeler v Copas [1981] 3 All ER 405

Jurisdiction: England and Wales
Year of the case: 1981
The learned judge: Chapman J
Area of law: Occupier’s liability; contributory negligence

What is the case about?

Wheeler v Copas [1981] is a tort law case that dealt with the question of whether a “ladder” can satisfy the definition of “premises” in order to constitute liability under the Occupiers’ Liability Act 1957. Further, it dealt with the duty of a person to supply appropriate materials to the contractors for the construction.

Facts of the case (Wheeler v Copas)

A farmer engaged a firm of bricklayers for the purpose of building a house on his farm. He contracted for labour only and undertook to provide the required materials and equipment. The plaintiff was a partner in the bricklaying company. For carrying out the work, he needed a ladder and selected one of the ladders from the farm. While using it, the ladder collapsed and the plaintiff was injured. He sued the defendant (farmer) for damages for personal injury on the basis that the defendant was liable under the Occupiers’ Liability Act 1957.

What was the issue here?

In this case, the legal issue was whether the defendant owed the plaintiff a duty of care. If this could be shown, it was critical to determine the extent to which each of the parties had contributed to the negligence and accident.

Judgment of the Court in Wheeler v Copas

The judge decided that the farmer was not liable under the Occupiers’ Liability Act 1957 since even though the Act covers moveable structures, such as vessels, vehicles and aircraft, and that it could apply to a ladder, the defendant could not be deemed to be an “occupier”. This is so because he had handed over the ladder to the contractors; it was no longer under his control.

After this, the court considered that the defendant still owed a duty of care. He was negligent as he did not provide suitable equipment for the job and failed to equip the plaintiff with an adequate ladder. But this liability was limited due to the fact that the plaintiff should have recognized the problem with the ladder before beginning his work. Hence, he contributed to the negligence.

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Owens v Brimmell [1977]: A Quick Summary

Case name & citation: Owens v Brimmell [1977] QB 859; [1977] 2 WLR 943

Jurisdiction: England and Wales

The learned judge: Watkins J

Area of law: Contributory negligence

What does the case deal with?

This is a UK tort law case that says that courts may find a passenger contributorily negligent when taking a lift with someone who is drunk.

Facts of the case (Owens v Brimmell)

The claimant and his friend were drinking together in a pub and they each consumed about nine pints of beer, before getting into the friend’s car. While the friend was driving home, they were involved in an accident. The car moved off the road and struck a lamppost. The claimant suffered serious injuries including brain damage and fractured bones. As a result, he sued for negligence.

Further, the defendant tried to take the defense of contributory negligence on two grounds. He claimed that the claimant was contributorily negligent firstly because he did not wear a seat belt and secondly because he failed to foresee that the driver’s ability to drive was impaired by alcohol.

Issue

Was the defendant liable for damages?

Could the claimant be held guilty of contributory negligence?

Judgment of the Court in Owens v Brimmell

The court determined that the claimant was entitled to compensation. However, because the claimant got into a car with someone he knew was drunk and unable to drive properly, it was determined that the claimant had contributed to his injuries, and as a result, the amount of compensation he received was reduced by 20%.

Even if the claimant was himself too drunk at the time to know how drunk the driver was, he was still contributorily negligent. This was due to the fact that the claimant and the defendant were out together on a pub crawl, and the claimant must have been aware of the possible consequences.

As far as wearing a seat belt was concerned, the defendant was unable to prove that doing so would have lessened the extent and degree of injury. As a result, the defendant’s claim that the plaintiff was contributorily negligent because he did not wear a seat belt was found to be unconvincing.

Quotes from the case

Watkins J said:

“Thus, it appears to me that there is widespread and weighty authority for the proposition that a passenger may be guilty of contributory negligence if he rides with the driver of a car whom he knows has consumed alcohol in such a quantity as is likely to impair to a dangerous degree that driver’s capacity to drive properly and safely. So may a passenger be guilty of contributory negligence if he, knowing that he is going to be driven in a car by his companion later, accompanies him on a bout of drinking which has the effect of robbing the passenger of clear thought and perception and diminishes the driver’s capacity to drive properly and carefully.”

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