Pokemon NO!

‘What happens when more than one person isn’t looking where they’re going?’

Can you claim compensation if you were not paying attention when crossing the road?

As over-enthusiastic Pokemon GO players cause a reported spate of accidents around the world we ask, ‘What happens when more than one person isn’t looking where they’re going?’

Alongside the startling rise of Pokemon GO, with a reported 15 million downloads in its first week alone, it seems gamers engrossed in catching a Squirlte or a Pikachu, have been putting themselves in harm’s way.

Amazingly, it seems people have been playing whilst driving, leading to collisions with trees and even police cars.  Others have been hit while crossing the road, walking off cliffs, and falling down stairs.

Clearly grown adults have a responsibility to look after themselves, and if they come to grief because they aren’t concentrating then they only have themselves to blame. But what if they don’t? What if someone else has done something equally daft, or even dafter? What if the accident is caused by more than one person?

We’re not talking here about blaming Nintendo, the publishers of Pokemon. The game itself does include prominent warnings about users not putting themselves in danger, and being aware of their surroundings. Even without that warning, it is very unlikely a court, in this country at least, would be very receptive to a claim against Nintendo from someone who has clearly been the author of their own misfortune.

But what if someone was more directly involved in an accident, and more obviously blameworthy?  Imagine a Pokemon user, so engrossed in their game that they go to cross a road without looking, and they are hit by a car they didn’t notice. However, what if that car was driven by a drunk driver, or was going well over the speed limit?

One might think that the accident wouldn’t have happened had the gamer been paying attention, so if they end up hurt due to their own mistake or stupidity that’s their hard luck. Equally, if the accident would not have happened had the driver been sober, or driving within the speed limit, should they be able to get away with it, and can it really be said that their negligence has caused no damage?

When it comes to compensation claims, the courts have approached the issue using the concept of ‘contributory negligence’. In the example above, if the gamer sued the driver for compensation for their injuries, the claim would be successful because the driver was negligent and the injuries would not have happened had the driver not been negligent.  But because they would also not have happened had the gamer been paying attention, the gamer would be found negligent as well.

In such a case the gamer would win their case and recover damages, but the court would assess the percentage by which the gamer had contributed to their own injuries, and their damages would be reduced by that percentage.

In straightforward negligence claims the division of liability is usually on a common sense basis. The court assesses how negligent the conduct of each party has been (the claimant may have been only slightly outside the law, or at the other extreme may have been by far the most to blame), and to what extent the claimant’s injuries have made their injuries worse.

One issue that is regularly encountered is cases where injured motorist have not been wearing seat belts. In general, if wearing a seat belt would have made no difference to the injuries there is no deduction; if it would have made the injuries less severe the deduction is 15%; and if it would have prevented the injuries entirely the deduction is 25%. Remember that the defendant will have been the one that caused the accident, so will normally be the most to blame, even if the seat belt would have prevented any injury.

The situation can be a little different in cases where there are written rules and regulations, especially in cases of accidents at work. Health and safety legislation puts the onus on employers to make the workplace as safe as reasonably practicable, and are especially strict where the nature of the work is particularly hazardous.

As the law recognises that employers are the ones in the position of power and responsibility, they should take the lead in organising the workplace safely and making sure things are done properly. Employees on the other hand generally rely on their employers to train them and instruct them on how to do their jobs.

If the usual standards of contributory negligence applied to workplace claims it would have the effect of expecting employees to be equal partners with employers in directing how work should be done, and so blaming an employee for an accident too readily would have the effect of undermining the whole purpose of the health and safety law in question. To avoid this, where a health and safety law has been breached, generally only reckless behaviour by an employee will be enough to see a finding of contributory negligence against them.

If you have had an accident where you are not sure whether you can claim because you believe the accident may have been partly your fault, don’t discount it! We can advise on issues of contributory negligence, and can usually tell quickly whether you might have a claim worth pursuing, or on the other hand explain why it would be inadvisable to pursue things further.

For further information please contact the personal injury team on 01733 882800 or email Richard Moon directly at richard.moon@hcsolicitors.co.uk .


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This article has been prepared for general interest and information purposes only; it does not constitute legal advice and should not be relied on as such. While all possible care has been taken in the preparation of this article, no responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by the firm or the authors.