In some accidents, the victim is wholly blameless. For example, a pedestrian who is negligently run down while using a pedestrian crossing will (save in the most unusual of circumstances) will bear no responsibility for his or her loss. However, it is often the case that a victim will shoulder some of the blame for the accident. For instance, a passenger who is injured in a car accident might have failed to wear a seatbelt, an injured employee might have been injured while ignoring the directions of his or her employer, or a person who sustained injuries as a result of diving into shallow water might have failed first to ascertain the depth.

The doctrine of illegality

Victim fault is often one of the most significant issues in play in many cases, and the law takes account of victim fault in several ways. First, where the victim’s fault constitutes an illegal act, the doctrine of illegality might be triggered. When that doctrine applies, the claim will usually fail entirely. It is important to note that relatively serious wrongdoing by the victim is required before the illegality doctrine will be engaged. Trivial breaches of the law will not suffice.

The duty of care element

Secondly, the victim fault might be such that no duty of care arises. If no duty of care is owed, compensation cannot be recovered in what is known as the tort of negligence, which is the primary legal basis via which compensation is recovered in respect of personal injuries. A duty of care is an element of that cause of action. However, it is relatively rare for victim fault to negate the existence of a duty of care (an example where victim fault prevented a duty of care from arising is Mulligan v Coffs Harbour City Council).

The contributory negligence doctrine

Thirdly, and most importantly as a matter of practice, victim fault might be taken into consideration via what is known as the doctrine of contributory negligence. This rule applies when both of the following two conditions are satisfied: (1) the injured person must have failed to take reasonable care for his or her own safely; and (2) the failure to take care must be causally linked to his or her injury. It is convenient to look at both of these points in a little bit more detail.

A failure to take care will be unreasonable when the victim took less care than the reasonable hypothetical person would have taken in the same position. Thus, an accident victim will usually be found to have taken insufficient care where he or she accepts a ride from a driver whom he or she knew (or ought to have known) was intoxicated, runs across the road without checking for oncoming traffic (especially if this happens at night-time where the victim is wearing dark clothes), or drives in excess of the speed limit.

However, a failure to take reasonable care that is causally unrelated to the victim’s loss is irrelevant. Suppose that an accident victim drives with defective brake lights. That is very likely to amount to a failure to take reasonable care. But if the victim is injured in a head-on collision, that failure will be irrelevant. The contributory negligence doctrine will not apply in this situation.

If the doctrine of contributory negligence applies, the usual result is that the amount of compensation payable will be partially reduced. How is the amount of the reduction determined? It works as follows. The courts compare the victim’s responsibility for the damage suffered and the guilty party’s responsibility as percentages. For example, a victim might be 40% responsible and a negligent driver 60% responsible (the percentages will always add up to 100%) for the loss. In this event, the victim will recover 60% of the value of his loss. How do the courts assign percentages of responsibility? This is done in a rough and ready way (although in some situations the courts need to take account of statutory guidelines that limit their discretion in this regard). Judges proceed based on common sense and drawing on their experience. One study regarding the way in which judges reduce damages on the basis of the contributory negligence doctrine is available here.

Practice points

Thorough preparation of a claim can diminish the prospects that the contributory negligence doctrine will apply. Such preparation can also assist in reducing the amount of responsibility assigned to the victim where the doctrine is engaged. It will often be desirable for the victim’s lawyer to visit the scene of the accident and to take photographs of it. Detailed statements should also be taken from the accident victim and any witnesses. This should be done as soon as is practicable after the accident.

If you have been injured in an accident and you think you may have been partially to blame, you may still be entitled to compensation. To arrange a free no-obligation assessment of your claim, contact Stacks Goudkamp on 1800 25 1800, or alternatively make an online enquiry.

Written by Dr James Goudkamp

James Goudkamp is an Associate Professor of Law at the University of Oxford. He is the author of numerous books about personal injury compensation.