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Contributory Negligence as the injured Pedestrian?

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  • 11-11-2019 11:45am
    #1
    MinnieMinx
    Registered Users Posts: 232 ✭✭


    My husband was clipped by a car door mirror whilst walking along a narrow rural road last week. Door mirror left hanging off.
    The driver admitted they didn’t see him because the sun was low in the sky around 9am in the morning.
    I think they were driving too fast because if the sun was blinding, surely you’d reduce your speed?
    Speed limit in this section is 50kph as its within 100 yards of a rural school. They were definitely travelling in excess of this speed but we don’t have proof of this. There are no pavements on either side of the road.

    Can their insurance company argue contributory negligence because:
    1. He had chosen to walk knowing there is no pavement.
    2. He wasn’t wearing a high viz vest. (even though it’s daylight)

    Husband checked by ambulance at scene but thankfully only minor bruising and whiplash. Also damage to clothing and broken watch.


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    #2
    Witcher
    Registered Users Posts: 14,436 ✭✭✭✭Witcher


    MinnieMinx wrote: »
    My husband was clipped by a car door mirror whilst walking along a narrow rural road last week. Door mirror left hanging off.
    The driver admitted they didn’t see him because the sun was low in the sky around 9am in the morning.
    I think they were driving too fast because if the sun was blinding, surely you’d reduce your speed?
    Speed limit in this section is 50kph as its within 100 yards of a rural school. They were definitely travelling in excess of this speed but we don’t have proof of this. There are no pavements on either side of the road.

    Can their insurance company argue contributory negligence because:
    1. He had chosen to walk knowing there is no pavement.
    2. He wasn’t wearing a high viz vest. (even though it’s daylight)

    Husband checked by ambulance at scene but thankfully only minor bruising and whiplash. Also damage to clothing and broken watch.

    So which is it? And how do you know either way?


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    #3
    MinnieMinx
    Registered Users Posts: 232 ✭✭MinnieMinx


    I think they were driving too fast for the road conditions/low sun
    AND they were driving in excess of the speed limit.

    It’s a straight-ish road and a slight incline and the driver didn’t slow down as they were approaching the school. The speed limit for the rest of the road is 80kph and I think they were driving around this speed.


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    #4
    NUTLEY BOY
    Registered Users Posts: 2,344 ✭✭✭NUTLEY BOY


    The insurers could try and argue contributory negligence.
    Establishing contributory negligence on the evidence is their problem.
    Given what happened IMHO the contributory negligence argument here is thin but arguable.

    The concept of contributory negligence is that a person has by their conduct shown a want or lack of care for their own safety and thus contributed to the causation element of the accident.


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    #5
    Claw Hammer
    Registered Users Posts: 6,160 ✭✭✭Claw Hammer


    Contributory negligence is not a complete defence. A motorist hitting a slow moving pedestrian is most unlikely to get above a 10% discount. No insurance company would run a case hoping to make something of it.


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    #6
    vixdname
    Registered Users Posts: 1,151 ✭✭✭vixdname


    Off course.........Whiplash....chaaaa chiiiiinnng


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    #7
    Robbo
    Moderators, Social & Fun Moderators, Society & Culture Moderators Posts: 10,555 Mod ✭✭✭✭Robbo


    vixdname wrote: »
    Off course.........Whiplash....chaaaa chiiiiinnng
    Moderation: Post something like this again and there'll be an infraction in it for you.


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    #8
    jimmycrackcorm
    Registered Users Posts: 14,329 ✭✭✭✭jimmycrackcorm


    There is no point trying to argue that the driver was speeding as you have zero proud and no way of establishing it either. I also don't see how a reduced speed would have prevented the collision.

    Contributory negligence will come into effect if he was hit from behind by not walking on the side of the road facing oncoming traffic, or it might be questioned why he didn't see that the incoming car was so close that he couldn't move out of the way.


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    #9
    ittakestwo
    Registered Users Posts: 1,642 ✭✭✭ittakestwo


    I think the driver would be happy just to pay for the car mirror themselves and not hear from your husband again.

    However if you are hoping to make a claim of whiplash. You say the car mirror hits your husbands hand when he is walking on the road. How do you get whiplash from that? Doesn't your kneck need to be jolted to get whiplash? Cant see how you could get whiplash if walking with both feet on ground and an object clips your hand.


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    #10
    jelutong
    Registered Users Posts: 1,152 ✭✭✭jelutong


    How can the driver be anything but 100% in the wrong?


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    #11
    Claw Hammer
    Registered Users Posts: 6,160 ✭✭✭Claw Hammer


    jimmycrackcorm wrote: »
    There is no point trying to argue that the driver was speeding as you have zero proud and no way of establishing it either. I also don't see how a reduced speed would have prevented the collision.

    Contributory negligence will come into effect if he was hit from behind by not walking on the side of the road facing oncoming traffic, or it might be questioned why he didn't see that the incoming car was so close that he couldn't move out of the way.

    Drivers are supposed to see what is in front of them. No insurance company will try that nonsense on about walking on the wrong side of the road.


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    #12
    Fieldsman
    Registered Users Posts: 146 ✭✭Fieldsman


    The big question is What side of the road was the pedestrian walking. If he was walking on the left he was asking for trouble


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    #13
    Seth Brundle
    Moderators, Politics Moderators Posts: 38,855 Mod ✭✭✭✭Seth Brundle


    Fieldsman wrote: »
    The big question is What side of the road was the pedestrian walking. If he was walking on the left he was asking for trouble
    As it was a narrow country road, the driver should have been able to stop within their field of vision regardless of which side of the road the obstacle was on. The OPs OH may have stood still to allow the car to pass for all we know.


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    #14
    jelutong
    Registered Users Posts: 1,152 ✭✭✭jelutong


    Fieldsman wrote: »
    The big question is What side of the road was the pedestrian walking. If he was walking on the left he was asking for trouble

    Sometimes walking facing oncoming traffic can be suicidal.


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    #15
    Claw Hammer
    Registered Users Posts: 6,160 ✭✭✭Claw Hammer


    jelutong wrote: »
    Sometimes walking facing oncoming traffic can be suicidal.

    That is why drivers are expected to be careful.


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    #16
    Fieldsman
    Registered Users Posts: 146 ✭✭Fieldsman


    Jelutong walking on the right side is correct, on the left is known as the suicidal side


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    #17
    Wesser
    Registered Users Posts: 1,813 ✭✭✭Wesser


    How on earth can you have whiplash if a mirror hits you at ..waist level???

    Whiplash is neck pain caused by rapid acceleration followed by deceleration. Not consistent with being hit in tje waist by a car.

    The fact you put in the term whiplash makes the whole rest of your post unreliable.


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    #18
    uck51js9zml2yt
    Closed Accounts Posts: 18,268 ✭✭✭✭uck51js9zml2yt


    Wesser wrote: »
    How on earth can you have whiplash if a mirror hits you at ..waist level???

    Whiplash is neck pain caused by rapid acceleration followed by deceleration. Not consistent with being hit in tje waist by a car.

    The fact you put in the term whiplash makes the whole rest of your post unreliable.

    You're assuming he was average height.

    I'm sorry:)


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    #19
    Wesser
    Registered Users Posts: 1,813 ✭✭✭Wesser


    Thats correct. I am assuming that. Also OP said his watch was damaged.


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    #20
    jelutong
    Registered Users Posts: 1,152 ✭✭✭jelutong


    Fieldsman wrote: »
    Jelutong walking on the right side is correct, on the left is known as the suicidal side

    I’m well aware of that. Try walking facing oncoming traffic on a blind right hand bend sometime. Can be very dangerous.


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    #21
    Skatedude
    Registered Users Posts: 2,674 ✭✭✭Skatedude


    jelutong wrote: »
    I’m well aware of that. Try walking facing oncoming traffic on a blind right hand bend sometime. Can be very dangerous.

    Try walking facing away from oncoming traffic on a blind bend, can be even more dangerous.


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    #22
    NUTLEY BOY
    Registered Users Posts: 2,344 ✭✭✭NUTLEY BOY


    Before leaping to conclusions about whether it could or could not be whiplash people would need to know the complete medical history of the mechanism of causation of injury first.
    I don't think that we have that evidence before us.


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    #23
    TheBoyConor
    Closed Accounts Posts: 3,292 ✭✭✭TheBoyConor


    The only thing I can think of that a defence could argue for on contributary negligence is that your husband walked on the roadside instead of the footpath on the other side if there was one. It was daylight so a hi-vis would not be necessary. if that were the case then everyone walking everywhere would need a hi vis top. nonsense.
    I think a solid contributrary negligence accusation would be more like he was drunk out in the middle of the road wearing black clothes in the middle of the night or ran across on a blind corner without looking with headphones in his ears or something else silly like that.

    I think you are safe from any finding of CN. It would be a very flimsy argument.

    Either way, a pedestrian was hit by a motorist. That is only going to go one way. Expect a nice big payout.


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    #24
    Seth Brundle
    Moderators, Politics Moderators Posts: 38,855 Mod ✭✭✭✭Seth Brundle


    TheBoyConor wrote: »
    It was daylight so a hi-vis would not be necessary. if that were the case then everyone walking everywhere would need a hi vis top. nonsense.
    Indeed it is nonsense which may explain why the muppets in the RSA tweeted this crap for people walking along a road in the daytime...

    DEYlQQPXgAAJ2LS?format=jpg


    https://twitter.com/RSAIreland/status/950744996847734784


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    #25
    MinnieMinx
    Registered Users Posts: 232 ✭✭MinnieMinx


    I’ve no idea why from what was written, someone has assumed only his hand was hit? Husband was hit hard, thrown off his feet and landed on his back midway in the ditch and the road. An ambulance was called and a first responder attended.

    He was walking in the direction of traffic because there’s an incline and a bend ahead and it would be suicidal to walk on the other side facing the traffic because the traffic wouldn’t see you until they had come around the bend and be more or less on top of you.

    Someone suggested that as he wasn’t wearing a high viz vest and walking not facing the traffic, the driver could argue he wasn’t 100% responsible. I just felt that was an unreasonable defence and wanted some other opinions.

    Guards are still to formally interview husband after doing initial interview at the accident scene.

    It could have been far more serious but he was incredibly lucky to be able to walk away.


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    #26
    TheBoyConor
    Closed Accounts Posts: 3,292 ✭✭✭TheBoyConor


    It is an unreasonable defence.

    A motorist struck a pedestrian. open and shut case. once that fact is established the insurance company and the courts will hardly be interested in any further details. They will just decide on how much to pay out. And you can expect to do very very well out of it.


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    #27
    Spook_ie
    Registered Users Posts: 10,896 ✭✭✭✭Spook_ie


    TheBoyConor wrote: »
    It is an unreasonable defence.

    A motorist struck a pedestrian. open and shut case. once that fact is established the insurance company and the courts will hardly be interested in any further details. They will just decide on how much to pay out. And you can expect to do very very well out of it.

    Don't think it's an unreasonable defence at all, CN is looking to see if there were contributing factors to an incident, they may reduce the injury payout but rarely ( if at all) is anything 100% CN, they may decide that there was 5% CN and reduce a payout by 5% or whatever amount a court decides based on the evidence presented.

    https://www.personalinjuryireland.ie/contributory-negligence-for-injury-compensation-claims/


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    #28
    TheBoyConor
    Closed Accounts Posts: 3,292 ✭✭✭TheBoyConor


    That is true I guess. I think the point I'm trying to make is that in this scenario she has described, CN is not something she should spend much time worrying about. The husband was walking down the road in broad daylight, as he was entitled to do. He wasn't particularly neglectful as in being drunk, out in the middle of the road late at night etc.
    The driver didn't take enough care to account for the possibility that there might be a pedestrian around the bend.

    Any CN, if there is any at all, will be of a minor degree (ie he didn't wear hi vis - but would this have changed things or is it a reasonable measure that any normal person would do).

    The court would be very much biased in favour of the more vulnerable road user - ie the pedestrian. This is because they stand to loose more and are more vulnerable. The motorist has insurance and they are pretty much insulated from liability by the insurance. So a court will generally favour giving the injured party more money rather than less.

    Similar in cases of workplace injury - even if the employer had done everthing 100% by the book, all procedures, training etc was impeccable and a worker gets injured and it is through their own fault. Court will still tend towards finding the employer negligent and making an award to the injured as it is considered that the person was injured in the course of their work, it really should not have happened, the employer is insured and stands to loose little whereas the injured stands to loose a lot/be left with an injury and they deserve "something" at least. Therefore they are bisased towards he who is more vulnerable.


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    #29
    MinnieMinx
    Registered Users Posts: 232 ✭✭MinnieMinx


    Update in this case for anyone who searches the forum for a similar scenario in the future…

    The driver chose to plead ‘not guilty’ to the charge of careless driving so a case was eventually heard in the local court. The solicitor for the defence did try to argue that:

    1. DH should have worn a high viz vest
    2. DH should have walked on the other side of the road towards oncoming traffic
    3. The flashing lights before the school weren’t working so there was inadequate warning of the hazards.


    1. The judge didn’t accept any of these arguments for obvious reasons and the driver (who gave a pathetic sob story complete with hysterical crying) was found guilty of careless driving but only fined €100 (!!) and given 6 penalty points as that’s the basic tarif in this offence.

    In my humble opinion the Garda should have the authority to give on the spot fines in cases like this, as it would have saved €€€ in delayed and unnecessary court costs.



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    #30
    Witcher
    Registered Users Posts: 14,436 ✭✭✭✭Witcher


    https://www.boards.ie/discussion/comment/117869182#Comment_117869182

    It would make no difference if an FCPN could have been issued straight away...they wouldn't have paid the FCPN and it would have gone to court anyway. It would have taken up even more time that way.



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    #31
    Billgirlylegs
    Registered Users Posts: 494 ✭✭Billgirlylegs


    https://www.boards.ie/discussion/comment/117869182#Comment_117869182

    It is incredible the sheer hard neck of some people.

    But why only a fine of €100.00 and Penalty Points though. Open and shut case of driving without due care and attention, and knocked the pedestrian into the middle of next week.

    Hope your husband is ok.



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