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Injury - Who is to Blame?

One of the things which determine the eventual payout in personal injury claims is the degree to which the injured person is to blame for the injury that befell them. This principle is called 'contributory negligence'. It also applies where an injury happens as a result of an accident which is partly the fault of a third party who negligently fails to comply with a duty of care, which may be statutory, owed to another person.

You may think that it is self-evident that if you are injured in a road accident because you were unaware of a danger that was not signposted, the local council (who are responsible for putting the warning signs on roads) should shoulder some of the blame.

A case which was fought all the way to the House of Lords has recently been decided. It involved a woman who was severely injured when her car collided with a double-decker bus on a stretch of road known to be dangerous and which had been the scene of previous accidents. The council had allowed a previous 'Slow' marking on the road to wear away and an 'Uneven Road' sign at the edge of the road was not fully visible due to overhanging foliage.

On the face of it, it might seem that the council should share the blame for the accident. However, the Lords ruled that councils do not have a duty of care to place markings on the road or to erect signs to warn of dangers. Their duty is to maintain the road in a safe condition, which is quite another thing.

This ruling may appear unfair, but it follows a number of similar cases which have included injuries suffered due to ice on roads, poor signage and so on.

On the other hand, it seems reasonable that the passenger in a car who knowingly puts themselves at risk can expect to have any damages they receive reduced. A woman who allowed her boyfriend to drive her car without insurance and who then failed to make known to him her clear and unequivocal wish to get out of the car, when he began driving dangerously, was very seriously injured. She had also not been wearing a seatbelt. Rather surprisingly, the judge awarded her damages against her boyfriend with only a 15 per cent deduction for her contributory negligence.

Being uninsured, her boyfriend was unable to pay the very substantial settlement. The woman pursued a claim against the Motor Insurers' Bureau, which would have been liable had it been decided that she had not consented to being a passenger in the car at the time the accident happened. The court's finding was that, despite her request to her boyfriend that he stop the car, it was not a forceful enough protest to amount to an 'unequivocal repudiation'. She had consented to be a passenger when she got into the car and that consent had not been withdrawn. Her claim for damages failed.

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