(57) He gives the example, based on US cases, that a victim of crime, suing a defendant for negligently failing to safeguard against such risks, cannot be said to have been contributorily negligent for walking in a dangerous area.
The child was held not to be contributorily negligent. However, Goudkamp argues that the child was clearly negligent in failing to pause before proceeding to cross despite being aware of the truck, and concludes on this basis that the case supports a wider policy that parties enjoying a right of way under road rules are exempt from contributory negligence because these rules take precedence.
(131) In determining whether she had been contributorily negligent in failing to stop and look before crossing the road, the Court asked whether a five-year-old child could be expected to do so.
The law (prior to the Ipp Report) may well have concluded that she was not contributorily negligent. But if the plaintiff injured another worker or visitor to the premises in nearly identical circumstances, so that her conduct was judged qua defendant, (140) it is highly unlikely that 'mere inadvertence' would ever be an excuse.
Of course, if the dissenting view is correct, then the effect of the equivalence provisions is greatly diminished, since a plaintiff s 'share in the responsibility' may be all but erased notwithstanding the conclusion that she is contributorily negligent. Nevertheless, we believe that the dissenting view is to be preferred, for two reasons in particular.
More recently, see, eg, Grills (n 27), in which a police officer was held not to have been contributorily negligent when his motorbike hit an unexpected boom gate when travelling at 10-15 km/h above the speed limit, while responding to an urgent situation.
Further, the court held that Marlene could not be found contributorily negligent in her decision to choose bilateral mastectomy as opposed to periodic mammograms, which would have involved no disfiguring surgery.
In response, the defendant asserted that the patient was contributorily negligent in failing to read a printed consent form, which he signed before the surgery.
Thus, where a patient has no duty in the informed consent context, we cannot see how the patient can be contributorily negligent." (19) The court also held that the physician's "affirmative" duty may not be fulfilled merely by having the patient sign a printed informed consent form because "a signed consent form is not a substitute for the required disclosure by a physician." (20)
The trial court ruled as a matter of law that the defendant was not negligent and that the plaintiff was contributorily negligent
. Nonetheless, the Virginia Supreme Court found that the defendant had not met her burden of overcoming the presumption and, therefore, was unable to establish that the plaintiff could have been contributorily negligent