Often in compensation claims, whilst a defendant or an insurer might accept they were primarily to blame for the accident/a person’s injuries, they will often also argue that a person contributed to the accident and/or that some act or omission on their part has made their injuries worse.
In legal terminology, if you are injured due to someone else’s negligence but you are found to have contributed to the occurrence of your injuries in some way, this is called contributory negligence.
In order to help you understand how contributory negligence works in practice, it helps to use an example. Let’s say you are driving along the street and a car coming from a side street fails to stop or give way to you and slams straight in to the side of your car. In these circumstances the law will ordinarily hold the other driver as being 100% responsible for the accident, and their insurance company 100% liable to pay you compensation.
However, what if, for example, you were not wearing a seatbelt at the time you were hit and this results in you being thrown out of your seat and sustaining an injury which is far more serious than that which you would have sustained had you been properly restrained? In a case such as this, it might be open to a court to find that you were partially to blame for the severity of your injuries – that is, that you are guilty of contributory negligence.
Other examples of contributory negligence include where a pedestrian fails to look before walking on to the road, walks against a red light or close to a pedestrian crossing but not on it, where a cyclist fails to wear a helmet, an employee who fails to wear particular safety equipment and so on.
So what happens when an injured person is found to be guilty of contributory negligence?
A finding of contributory negligence does not mean a person is not entitled to compensation. However, what it does mean is that the compensation they receive will be reduced by the same amount as their contribution to the accident/their injuries.
Therefore, to use an example again, if you are involved in an accident and it is found the other person is primarily to blame for the accident (we call this primary negligence), but you are found to have contributed to your injuries by 25% (for example, by not wearing a seatbelt), your lawyer or a judge will first make an assessment of the amount of compensation you would be entitled to receive if the other party was completely at fault. Once this figure has been worked out, 25% will then be deducted from this amount, in recognition of your contribution to the accident.
The lawyers at Stacks Goudkamp have significant experiencing in dealing with cases where contributory negligence is alleged and ensuring that we obtain evidence and prepare our cases such that the percentage of our client’s contribution is kept to a minimum and their compensation award at a maximum.
If you have been injured in an accident and are partially to blame, you may still be entitled to compensation. You can contact Stacks Goudkamp on 1800 25 1800 or by making an online enquiry, to obtain friendly advice about your circumstances from one of our compensation experts.
Written by Ruth Hudson.
Ruth Hudson is a Practice Group Leader at Stacks Goudkamp. She has experience acting for clients in a variety of areas, including motor vehicle claims, public liability claims and professional negligence claims. Ruth also represents victims of sexual abuse and refugees who have been mistreated whilst in mandatory immigration detention.