A research on contributory negligence

1. 1 | P a g e M K N J O K I
MICHAEL K NJOKI
17ZAD102736
ASSIGNMENT: RLLB 103
LECTURER: MRS. MELISA MUINDI

2. 2 | P a g e M K N J O K I
This case raises two key pertinent issues that are to be determined by the court. The first one
being on whether Speedster is to be held fully liable for the cause of the accident though he
admits he is liable and lastly being whether Njuguna is entitled to any damages in the suit that he
is instituting. Generally, we ought to know that the main reason for a civil case is to seek remedy
from in which the court in its discretion is to determine if you are entitled to it or not. Remedies
in a civil case as explained by Eliot & Quinn1 are either by way of damages or injunctions’.
Elizabeth expounds damages by wording them as, “a sum of money awarded by a court as
compensation for tort or breach of contract.” 2
On whether Speedster is to be held fully liable after admitting the liability on his part, the court
should assess to determine the element of contributory negligence from both the plaintiff and the
defendant, guided by the case of Froom v Butcher3 where the facts of the case are similar to this
in that the Claimant was injured in a car accident due to the negligence of the Defendant. The
Claimant was not wearing a seat belt. There was disagreement as to the apportionment of loss
under the Law Reform (Contributory Negligence) Act 1945. 4 It would be taken into
consideration that the accident was caused by the negligence and recklessness of the speedster in
going above the maximum speed limit prescribed by the law.5 From this he is to be held liable
for breach of statutory duty which led to the accident. But this should mean that the is solely to
be accountable for this but Njuguna also played part in it.
Contributory negligence is worded as, where any person suffers damage partly of his own fault
or 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 extent as the court thinks just and equitable having regard to the
Claimant’s share in the responsibility for the damage in the Law Reform Act Kenya. 6 It needs to
be noted that the relevant contribution of the Claimant is to the damage, not merely to the
accident that causes the damage. This distinction is most obvious when considering accidents
involving a failure to use protective equipment, where in this case Njuguna failed to put on his
seat belt. The issue of deduction for a driver or passenger who suffers injuries that would have
been avoided or at least would have been less serious had they been wearing a seatbelt is an area
of continuing dispute. In Froom v Butcher,7 the driver of a vehicle was not wearing his seatbelt
and suffered head and chest injuries in a collision caused by the Defendant’s negligence. Lord
Denning in the Court of Appeal stated that “whenever there is an accident, the negligent driver
must bear by far the greater share of responsibility.” Following from the deductions and analysis
of the given scenario, it is to be noted that Njuguna would have incurred less or would have
1 Catherine Elliott & Frances Quinn, Tort Law ( 8th Ed) ( Longman Publishers, June 15, 2011)
2 Elizabeth A. Martin, Oxford Dictionary of Law ( 5th Ed)( Oxford University Press)
3 Froom v Butcher [1976] 1QB 286
4< http://www.e-lawresources.co.uk/Froom-v-Butcher.php> Assessed on May 25th , 2017
5 Traffic Act, CAP 403 – Laws of Kenya s. 42( 1)
6 Borrowed from s.1 of the Law Reform ( Contributory Negligence) Act 1945 – U.K
7 Ibid 3, [1976] QB 286

3. 3 | P a g e M K N J O K I
avoided the injuries that he had such as broken rib, bruises on his chest and more so the
abrasions that he got on his head. The comments of Lord Denning were obiter (the Court of
Appeal finding no reason to depart from the Judge’s assessment of contributory negligence on
the facts of the case at 20%) and in any event were expressed in terms of suggested deductions
rather establishing any firm rules. Nevertheless, they have generally been treated as firm
guidance in the determination and assessment of damages.
On whether Njuguna is entitled to damages, the court being guided by the discussed case of
Froom v Butcher and how the trial judge, HHJ in Jones v Wilkins8 who considered himself
bound by the decision of in Froom v Butcher to apportion liability 75% to the Defendant and
25% to the Part 20 Defendants in which case it serves as to persuade the Kenyan court. When the
same matter was appealed, Keene LJ giving the judgment of the Court, stated that the trial Judge
could not “be faulted for having described himself as „bound‟ by the decision in Froom v
Butcher…it is clear from his judgment that he was prepared to and did consider the extent to
which the figure of 25% suggested by Lord Denning had been exceeded during the 23 years
since that decision, so as to see how readily the Courts have been prepared to treat that figure as
merely a guideline for the great majority of cases and how readily one should make an exception
to it. The fact is that there has been no reported case of which counsel are aware where a
passenger’s failure to wear a seat belt has resulted in a finding of more than 25% contributory
negligence.” The same position was upheld in the case of Gawler v Raettig9 where the court was
of the opinion, “Whilst I accept that public awareness of the vital importance of wearing seat
belts has increased markedly since 1975, it appears to me that judicial awareness, both in Froom
and in the numerous cases which followed it, of the dangers of not doing so is clear. The public
costs consequences of failing to belt up are self-evident. That being so, I do not accept that in this
respect public policy calls for a review of the approach laid down in Froom.” Gray J’s obiter in
reviewing Lord Denning’s judgment. From the above we’ve got to understand that Njuguna can
claim and is entitled to damages, but due to contributory negligence where he is held one fifth
liable for the cause of the accident, it results to the compensation being low than anticipated for.
In conclusion, its notable from the case provided that, a finding of contributory negligence has
no effect on how damages are calculated, only on the reduction (if any) to be made to the total as
calculated. This principle, established in Kelly v Stockport Corporation,10 was re-affirmed in
Sowden v Lodge where Pill LJ, applying Kelly, put it this way: “Damages are to be reduced
having regarded only to the "claimant's share in the responsibility for the damage". That assumes
an assessment of the sum recoverable prior to any reduction for contributory negligence.
Subsection 1(2) points strongly in the same direction. The reduction takes account of share of
responsibility for the damage but not how the damages are likely to be spent.”11 This is to say
that even though Speedster argument is legit, it wouldn’t hold water as Njuguna is legally
8 Jones v Wilkins [2001] PIQR P12,
9 Gawler v Raettig [2007] EWCA Civ 1560
10 Kelly v Stockport Corporation [1949] 1 All ER 893,
11 Sowden v Lodge [2004] EWCA Civ 1370.

4. 4 | P a g e M K N J O K I
entitled fully for damages but shall be quantum med to the discretion of the court. Not forgetting
the test on foreseeability test suggested by Justice Abban of Ghanaian Court of appeal in
Bradford v Robinson Rentals where he suggested that, “the accident that occurred is a type
which should have been foreseeable by a reasonable careful person…” 12
REFERENCES:
Catherine Elliott & Frances Quinn, Tort Law ( 8th Ed) ( Longman Publishers, June 15, 2011)
Chris Turner, Unlocking Torts, (2nd Ed) (Routledge Publishers) ( June 25, 2004)
Elizabeth A. Martin, Oxford Dictionary of Law ( 5th Ed)( Oxford University Press)
http://www.jtighana.org/new/links/papers/ASSESSMENT%20OF%20DAMAGES%20-
Justice%20Yaw%20Appau.pdf Assessed on March 15, 2017
http://www.byromstreet.com/news/wp-content/uploads/2011/04/Contributory-negligence-in-
Personal-Injury-and-Clinical-Negligence.pdf Assessed on June 26,2017
http://www.e-lawresources.co.uk/Froom-v-Butcher.php Assessed on May 25th , 2017
Cases & Statutes
Froom v Butcher [1976] 1QB 286
Jones v Wilkins [2001] PIQR P12,
Gawler v Raettig [2007] EWCA Civ 1560
Kelly v Stockport Corporation [1949] 1 All ER 893,
Sowden v Lodge [2004] EWCA Civ 1370
Bradford v Robinson Rentals Ltd [1967] 1 WLR 337; [1967] 1ALLER 267
Traffic Act, CAP 403 – Laws of Kenya s. 42( 1)
Borrowed from s.1 of the Law Reform ( Contributory Negligence) Act 1945 – U.K
12 Bradford v Robinson RentalsLtd [1967] 1 WLR 337; [1967] 1ALLER 267