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. Here’s an example that explores some of the aspects of contributory negligence:

Scenario – A cyclist is cycling down a quiet suburban street. There are no parked cars. The street is narrow but the cyclist is keeping to the left hand side of the road. He is not wearing a bicycle helmet. There is a young child playing by the left hand side of the road, ahead of the cyclist. A vehicle comes up behind the cyclist. The driver of the vehicle attempts a passing maneuver but does not move over to the right to give the cyclist room. As a consequence, the vehicle collides heavily with the cyclist from behind. The cyclist is thrown onto the bonnet of the vehicle and then onto the surface of the road. The cyclist fractures both bones in his right lower leg (the tibia and fibula) as well as sustaining other superficial injuries.

The driver of the vehicle, on the basis of the above facts, was negligent in the circumstances. The cyclist will be entitled to compensation from the insurer of the vehicle for the injuries sustained in the accident.

The questions for discussion are:

  1. Was the cyclist contributory negligent?
  2. If the cyclist was contributory negligent, what is the percentage reduction of damages applied in these circumstances?

The pertinent facts

Suppose that the defendant driver in this case makes an allegation against the plaintiff cyclist that he was contributory negligent for the following two reasons:

  1. Failing to keep a proper lookout for other road users (i.e. the young child); and
  2. Failing to wear a bicycle helmet

Generally speaking, there are two ‘types’ of contributory negligence. The first of these are matters that go to the actual circumstances of the accident, and the second are matters that go to the nature and extent of the injury suffered by the injured plaintiff. The allegations listed above are, respectively, examples of each of the two types of contributory negligence.

The onus of proving contributory negligence lies with the party alleging it, that is, the defendant. The defendant must prove that the claimant was negligent, on the balance of probabilities, for the court to make a finding against the plaintiff of contributory negligence.

Keeping a proper lookout for other road users

This allegation goes solely to the actual circumstances of the accident. There can be no suggestion that any failure for the cyclist to keep a proper lookout affected the severity of the injury that he sustained in this accident.

The allegation that the cyclist did not keep a proper lookout for other road users in these circumstances is unlikely to be accepted by the court, in the author’s view.

Suppose it was true that the cyclist was not keeping a proper lookout for road users ahead of him. Perhaps there was a young child standing by the side of the road and the cyclist did not slow down in response to the presence of the child.

An argument could be made in these circumstances that the cyclist ought to have slowed down in response to the child. Certainly, if the child stepped out into the path of the cyclist, and the cyclist had not taken reasonable precautions in response to the hazard posed by the child, it could be argued that the cyclist would be negligent in that situation.

However, the cyclist does not have eyes in the back of his head. Whatever the cyclist was doing in terms of looking out for potential hazards in front of him, has absolutely no bearing whatsoever on the driver of the vehicle approaching him from behind. There is no relevant causal connection between the cyclist’s failure to watch out for hazards in front of him and the vehicle approaching him (and ultimately hitting him) from behind.

This allegation must fail.

Failure to wear a bicycle helmet

The failure to wear a bicycle helmet allegation obviously did not impact the circumstances of the accident itself. It may affect the injuries sustained by the cyclist. This is why the road rules mandate that a cyclist must wear a helmet, to protect the head from serious and potentially fatal injury.

As this is a motor vehicle accident, the cyclist will unquestionably fall foul of s 138 (2)(d) of the Motor Accidents Compensation Act 1999 (NSW). A finding of contributory negligence as against the claimant is mandatory in those circumstances.

However, that is not the end of the matter.

Section 138(3) of the Motor Accidents Compensation Act 1999 (NSW) is in the following terms:

“The damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case.”

In Nicholson v Nicholson (1994) NSWLR 308, the NSW Court of Appeal considered whether, if the action of the plaintiff which gives rise to a finding of contributory negligence made no material difference to the degree of injury sustained by the plaintiff (or indeed, to the circumstances of the accident), whether in those circumstances it was open to the court to determine that a 0% reduction of damages was “just and equitable in the circumstances”.

In the case of Nicholson, the court was specifically considering whether the failure of a passenger to wear a seatbelt could give rise to a finding of 0% when the evidence established that the plaintiff’s injuries would not have been less had he used a seatbelt.

Mahoney JA, made the following remarks [at 333]:

It is possible to envisage cases in which, though the plaintiff was not at the time of the accident wearing a seatbelt, that omission had nothing to do with the occurrence of the injury or the nature or extent of the loss…

The formula chosen for the purposes of s 74(3) (“such percentage as the court thinks just and equitable in the circumstances of the case”) differs from that ordinarily applicable in cases of contributory negligence under the general law (“having regard to the claimant’s share in the responsibility for the damage”). It may be that the former was used in place of the latter to enable the Court, in examples of the kinds to which I have referred, to recognize that, there being no contribution by the deemed contributory negligence, it would be unjust and inequitable to reduce damages otherwise recoverable.

In these circumstances, I see no reason why, within s 74, a plaintiff should not recover the whole of the loss suffered if the failure to wear a seatbelt contributed nothing to the accident or the loss suffered

[emphasis added]

Section 74, as referred to above, was the equivalent section in the former Motor Accidents Act as is now found in s 138 of the current legislation.

In simple terms, what the Court of Appeal decided in Nicholson was that if there is no connection between the contributory negligence and either the circumstances of the accident or the harm suffered, the appropriate course is to make a finding of contributory negligence but to reduce damages by 0% on the basis that any reduction in damages would be inequitable.

Such a finding is consistent with the terms of the Civil Liability Act, which has been enacted in the years since the Nicholson decision, and which partially applies to motor accident cases in New South Wales.

The cyclist is not contributory negligent simply by virtue of the fact he may have been ‘doing the wrong thing’, in the same way as the driver of the vehicle is not negligent for ‘doing the wrong thing’ unless the incorrect behavior actually caused or contributed to the damage suffered by the injured person.


In the view of the author, whilst the cyclist ought to have worn a helmet, and ought to have proceeded more cautiously past the young child playing at the roadside, neither of these facts would give rise to a reduction of the cyclist’s compensation on the basis of contributory negligence.

That’s because the cyclist proceeding past the child without proper caution made absolutely no difference to the circumstances of the accident, which was caused entirely as a consequence of the driver of the vehicle failing to successfully overtake the cyclist.

Whilst s 138(2)(d) of the Motor Accidents Compensation Act would mandate a ‘token’ finding of contributory negligence on the basis that the cyclist failed to wear a helmet, because there was no relevant connection between the failure to wear a helmet and the broken leg suffered by the cyclist, the Nicholson decision would make it clear that the just and equitable outcome in the circumstances is for there to be no reduction in damages. The cyclist’s injuries are not worse because he, perhaps foolishly (and contrary to the Road Rules) elected not to wear a helmet.

If you or somebody you care about has been involved in an accident, you may be entitled to compensation. For more information, and to arrange a free, no obligation assessment of your claim, please call Stacks Goudkamp on 1800 25 1800 or alternatively make an online enquiry.

Written by Brett Watts.

Brett Watts is an Associate in Tom Goudkamp’s Practice Group. Brett represents people who have been injured in a variety of accidents including motor vehicle claims and public liability claims.