ripe red apples on grassy ground

The High Court in Belfast recently held a pedestrian who failed to wear a high-visibility jacket, one-third liable for the injuries he sustained in a road traffic accident. 

Background

The plaintiff apple grower incorporated Longmeadow Cider Limited in 2014.  

One evening in November 2015, he was asked by a lorry driver friend to assist with a delivery to a nearby farm. The friend’s lorry subsequently stopped down the road and at an angle to reverse into a yard across the carriageway. The Plaintiff, who was wearing dark-coloured clothing, got out of the cab’s passenger side to direct the driver, walking past the front of the lorry, which had its hazard lights flashing, and along the nearside in the carriageway.  

Meanwhile, the Defendant, who was driving along the road in the same direction, slowed in response to the warning signals on the road but did not take any action in relation to his speed on observing the lorry over the brow of the hill. His vehicle then struck the Plaintiff.  

Judgment

This was a breach of the duty of care which the Defendant owed to other road users:

[The lorry] was not merely parked but was partially blocking the lane in which the Defendant was driving. As such, the Defendant ought to have slowed down further and, if necessary, stopped to ascertain what precisely the lorry was doing and allow it to proceed. The Defendant could have brought his vehicle to a halt well before the lorry. Instead, the Defendant’s evidence was that he took no precautions whatsoever in response to the presence of the lorry once he was over the brow of the hill. 

Liability

Section 2 of the Law Reform (Miscellaneous Provisions) Act (Northern Ireland) 1948 states:

Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons …the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage 

A defendant must establish three things on the balance of probabilities in order to succeed in a plea of contributory negligence: 

(i) That the claimant was at fault. 

(ii) That the fault was causative of the relevant injury. 

(iii) That it would be just and equitable for the damages to be reduced. 

Mr Justice Humphreys held:

[the Plaintiff’s] failure to wear a high-visibility jacket was blameworthy and, on balance, this caused or contributed to his injuries …he failed to pay sufficient attention to the oncoming vehicle driven by the Defendant, despite having a view of some 40 yards back to the brow of the hill. In these circumstances, I have determined that it would be just and equitable to reduce the damages payable to the Plaintiff by one third.

Quantum: General Damages

The Plaintiff suffered serious and debilitating injuries as a result of the accident. He sustained a fracture of the C2 vertebra of his neck with associated dissection of the left vertebral artery. He also suffered a fracture of the left tibia and fibula, a scalp haematoma with abrasions, a fracture of the right first rib and psychological trauma.

Applying The Guidelines for the Assessment of General Damages in Northern Ireland (5th Edition) (‘the Green Book’), Humphreys J concluded:

… the global sum of £100,000 represents a fair assessment of the general damages in this case.

Quantum: The Cost of Care

The Court divined the following principles from case law:

(i) The care or attendance in question must be ‘over and above’ that which would be given anyway in the course of normal family life

(ii) The question to be asked, in assessing damages is what is reasonable for this Plaintiff to pay those who have cared for him as a reward for what has been done 

(iii) Benefits paid to a carer by way of carer’s allowance should be deducted from the cost of past care to ensure no double recovery 

(iv) A percentage discount should be applied to the commercial rate in respect of non-commercial care 

(v) The cost of hospital visits arising out of normal family affection are not recoverable – there must be some service provided which is not provided by the hospital 

Applied to the instant case:

Having considered the medical evidence and heard the witnesses, I have concluded that a reasonable allowance, averaged across that period, is 4 hours’ care per day. I calculate this as being 728 hours’ care. There was no dispute in relation to the hourly rate proposed …of £8.56 and I propose to make a 25% deduction from that figure to represent the fact the care was provided by the Plaintiff’s wife. Accordingly, the proper award for the cost of care in this case is £4,674. 

Quantum: Loss of Business Profits 

In the case of persons who are self-employed, a court must look at the turnover of the business prior to the subject accident and make an assessment as to how this has been impacted by the inability of the Plaintiff to work as a result of his injuries.

There was simply no evidence before the court of any adverse impact on the business of Long Meadow Cider Limited and I make no award of damages in that regard.

The Plaintiff’s financial loss was assessed at £73,000.

Quantum: Additional Travel Cost and Loss of Services 

The Court awarded £1500 in this regard.

Conclusion 

The total amount of damages in this case is therefore £179,674 and when the reduction for contributory negligence is applied, there will be judgment for the Plaintiff in the sum of £119,783.

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By Paul Sullivan FRSA

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