(CMR) All users of the road owe a duty of care to other road users. For a claim to be successful one must show that the other road user acted in a way that breached that duty of care and that (s)he suffered loss as a result.
But what happens when both parties are at fault? The injured party (Plaintiff) would first need to prove negligence against a Defendant. The Defendant can then argue that even if he is found to be negligent, the Plaintiff contributed to his/her own injuries.
The Plaintiff’s claim would still be successful, but damages would be reduced based on how much the Plaintiff contributed to his/her injuries. The Courts must assess each case on its specific facts (unless the parties are able to come to an agreement) and decide how to apportion blame as between the parties.
An interesting case came before the Courts in Cayman in 2008, namely: Bodden v. Solomon (2004-05 CILR 397) which involved a male pedestrian and the driver of a car.
The facts were as follows: the Plaintiff was walking along Crewe Road with his brother. They were on their way to work. His brother was walking on the shoulder. The Plaintiff was walking along the road surface, approximately one foot on the road, with his back to approaching traffic.
The driver approached from behind the Plaintiff and admitted that he first saw the two pedestrians from about 400 feet away. The road was wide enough for the driver to pass the Plaintiff without having to cross onto the opposite side of the road.
As the driver approached the pedestrian he claimed that a dragon fly suddenly flew into his car. The driver’s evidence was that he was distracted by the dragonfly and as a result collided into the Plaintiff, causing catastrophic injuries.
The Defendant argued that the accident was not his fault and that it was an inevitable accident and as such, he should not be negligent.
The Court did not accept the Defendant’s argument as when the dragonfly entered the vehicle, the driver had ample time to stop and pull over without hitting the Plaintiff. As such, the Court found that despite being distracted by the dragonfly the Defendant driver was still negligent.
The Defendant then argued that the Plaintiff contributed to the collision by walking on the road surface, rather than walking on the shoulder with his brother and by walking with his back to traffic. This argument was successful in part and the Court held that the Plaintiff had been negligent walking on the road surface when there was space on the shoulder and by walking without facing traffic.
As a result of that finding, the Court determined that the Plaintiff was contributorily negligent in the amount of 20%. As a result the Defendant was only required to pay 80% of the losses suffered by the Plaintiff.
The case stands as a cautionary tale for both drivers and pedestrians to ensure that at all times they take proper care for both themselves and other road users.
Recover Personal Injury Lawyers has over 50 years’ experience in dealing with personal injury claims resulting from a negligence. If you feel that you have suffered loss and it was someone else’s fault, please call us for a free consultation. We will discuss what happened with you and decide whether to proceed with your case on a “No Win, No Fee” basis. You can be confident in our determination to see your case through to a successful conclusion.
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