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254 NEGLIGENCE: CAUSATION AND CONTRIBUTORY NEGLICENCE

circumstances'': the law certainly does not require the claimant to procee<j on his way like a timorous fugitive constantly looking over his shoulq_er tor threats from others.⁷ For example, it is not the law that a pedestrian i_s guilty of contributory negligence if he crosses the road without using _<lri "authorised" Crossing.⁸

As with any other aspect of the law of negligence the standard of care demanded may be adjusted to meet changing conditions¹'; for example, j_n Froam v. Bułclur¹⁰ the Court of Appeal held that non-use of a car seat belt generally constituted contributory negligence some seven years before Parliament madę the wearing of belts compulsory.¹¹ Now that there is legislation requiring belts to be worn the correctness of this decision becomes even morę obvious, though the incidence of criminal liability and contributory negligence may not be entirely coterminous.¹²

Dilemma produced by negligence

6.45 Where the defendant's negligence has put the claimant in a dilemma, the defendant cannot escape liability if the claimant, in the agony of the moment, tries to save himself by choosing a course of conduct which proves to be the wrong one, provided the claimant acted in a reasonable apprehension of danger and the method by which he tried to avoid it was a reasonable one.¹³ If those conditions are satisfied he committed no

^ntributory negligence.^{1 2 3} A famous illustration of the principle is lones v. Poi/ce,'* where the claimant was a passenger on the top of the defendant's ^ch and, owing to the breaking of a defective coupling rein, the coach _waS in imminent peril of being overturned. The claimant, seeing this,

. _mped f^rom >^[ and broke his leg. In fact, the coach was not upset. Lord Ellenborough C.J. directed the jury that if the claimant acted as a reasonable and prudent man would have done, he was entitled to recover, although he had selected the morę perilous of the two alternatives with which he was confronted by the defendant's negligence and the jury gave _a yerdict for the claimant. But where all that the claimant is threatened with is mere personal inconvenience of a trifling kind, he is not entitled to run a considerable risk in order to get rid of it; so, for example, where the door of a railway-carriage was so ill-secured that it kept flying open, but the claimant could avoid the draught by sitting elsewhere, it would be his own fault if he fell out in trying to shut it (after several earlier unsuecessful attempts) while the train was in motion.¹'’

Children

While it is not possible to specify an age below which. as a matter of 6.46 law, a child cannot be guilty of contributory negligence,⁴ the age of the child is a circumstance which must be considered in deciding whether it has been guilty of contributory negligence.⁵ In Yachuk v. Oliver Blnis Co.

Ud, Y,⁶ a boy aged nine years, bought from O. B. Co. some gasoline, falsely stating that his mother wanted it for her car. In fact, he used it to play with, and, in doing so, was badly bumt by it. It was held by the Judicial Committee that O. B. Co. were negligent in supplying gasoline to so young a boy and that Y had not been guilty of contributory negligence for he neither knew nor could be expected to know the properties of gasoline. Although Lord Denning M.R. said that a child should not be found guilty of contributory negligence "unless he or she is blame-worthy",⁷ it is not thought that the characteristics of the particular child other than its age are to be considered. The question is whether an "ordinary" child of the claimant's age—not a "paragon of prudence" nor

1

The rule is eijually jpplicable in (avour of the defendant where therr is contributory negligence on the part of the claimant which has forced the dilemma upon him instead ot upon the claimant: Swadling V. Cooper 119311 A.C. 1 at 9; Mcluun v. Ml (1932) 147 LT. 262 at 263.

2

”(1816) 1 Stark. 493; The BwyII Casllc (1879) 4 l’.D 219; Umtnl States of America r. Laint Lme Ud |1924|

A.C. 286; Admiralty Commissbners p. S..Y Volute (1922) 1 A.C. 129 at 136; Sm/crs t». Harlow U.D.C. 119581 I W.L.R. 623.

3

'"Adams p. L & Y. Ku (1869) L R. 4 C.P. 739. cf. Sut/ers v. Harlow U.D.C. |1958| 1 W.L.R. 623.

4

”cf. Gotiglt v. Titanic I19(>6| 1 W.L.R. 1387 at 1390, per Lord Denning M.R. and Ducharmc r* Darie* |1984|

1 W.W.R. 699. "The descending linę measuring reasonable expectation of care rapidly approaches zero the age diminishes, but the linę is apparently asymptotic”: Bcasley v. Marshall (1977) 17 S.AS.R. 456 ^at 459, per Bright J.; in South Australia a reduction has been madę against a child as young as 6: Bt/c V. Bałeś (1989) 51 5 A.S R. 67.

5

'"A comparison of Jones v. Latarence ! 1969] 3 All E.R. 267 with McKinnel r. While, 1971 S.L.T. (Notes) 61 _t suggests that standards may be morę sevea* north ot the boaler.

6

^ 119491 A.C. 386; French v. Sunshine łluliifną Canip (Htn/lmy Islaiul) Ltti (1963) 107 S.J. 595.

7

Gough v. Thonte, above at 1390 Jones v. Lmpnrnce, above, refers to the need for culpable want of care by the child for his own safetY.