All Posts By

Heidi Norville

Motor accident claims in Sydney

Can I Still Claim Compensation in a Road Accident Matter If I Was to Blame?

It is a well-established legal principle that you can seek compensation for injuries sustained in a motor vehicle accident when: a) someone else was negligent; and b) that negligence caused or contributed to the accident. But what if you were also partially to blame? When your own carelessness is a factor in a road accident, it is legally classified as contributory negligence. Here’s what you need to know about claiming compensation in this situation.

Types of contributory negligence

What usually happens in a road accident/personal injury case is that the injured party’s lawyer must provide evidence that the person at fault was careless or reckless (negligent), and that that person’s negligence caused or was a significant factor in the accident. If the lawyer is successful, compensation will be awarded accordingly.

However, the responsible party’s insurance company or lawyer may argue that their client is not entirely to blame. Depending on the circumstances, they may allege that:

  1. the injured party’s actions (or lack of actions) also contributed to the accident; or
  2. the claimant’s actions (or lack thereof) contributed to the severity of his or her injuries.

Both are accusations of contributory negligence. In either case, the lawyer who makes these claims must provide sufficient proof that the injured party’s action or inaction meets the legal standard to qualify as negligence.

A (hypothetical) case in point

This is a tricky concept, even for some legal professionals and insurance providers. So to simplify, let’s consider the following scenario:

‘Jane’ is driving on a narrow road near a city park when her mobile phone rings, distracting her. Although she only takes her eyes off the road for a split second, the car veers toward the roadside, where ‘Sally’ is jogging. Jane quickly realises she can’t get around Sally because of oncoming traffic so she frantically slams on the brakes and sounds the horn. But Sally is wearing earbuds, and is oblivious to the danger until it is too late. She sustains a broken leg and numerous cuts and bruises on her hands and arms when the car knocks her to the ground.

After he evaluates the circumstances, Jane’s lawyer alleges that Sally contributed to the accident by jogging on the side of the road rather than the footpath. He also alleges that she would have heard the car and taken evasive action to minimise her injuries if she hadn’t been wearing earbuds.

The calculation of contributory negligence and how it affects compensation

When there is enough proof to substantiate an allegation of contributory negligence, the court must decide how much each person’s actions or inaction contributed to the accident. Most of the time, courts assign percentages when making these decisions. In a situation such as the one we just detailed, the court may find that each party is equally negligent. Specifically, it may find that Jane is negligent because she was distracted by her mobile phone, and Sally is negligent because she was wearing earbuds while running near the road.

Because the court makes a finding of 50 per cent contributory negligence, Sally’s compensation is reduced accordingly. In other words, an award of $50,000 with no finding of contributory negligence is now reduced to $25,000.

Mandatory reductions for contributory negligence

All of that notwithstanding, there are certain circumstances in which there are mandatory reductions for contributory negligence. Under the Civil Liability Act 2002 (CLA) a plaintiff who was intoxicated when they were hurt has engaged in contributory negligence. Accordingly, the amount of compensation claimed is automatically reduced by 25 per cent. In any such case involving a motor vehicle and intoxication, the mandatory reduction is 50 per cent.  Case law provides further precedent, for example by establishing that even where someone’s failure to wear a helmet has not affected the extent of their injuries, a deduction anywhere between 5% and 25% must be applied.

On a similar note, a court is not obligated to award any compensation to someone injured whilst committing a crime. In fact, sections 52-54 of the CLA make it highly unlikely that the claimant will recover damages.  Having said that, if the court assessing the circumstances determines the lack of any compensation would be too harsh, it has the discretion to award some compensation.

Contact experienced contributory negligence lawyers to learn more

If you or a loved one has been injured in a road accident and you have been accused of contributory negligence, you need proper advice from a qualified lawyer. Depending on your situation, a finding of contributory negligence can drastically affect the compensation you can receive. We have the experience needed to assess your circumstances and help you get the compensation you deserve. Contact us today on 02 8280 6900 or info@bpclaw.com.au for a free case consultation.

Contributory Negligence

What is Contributory Negligence in a Personal Injury Claim?

If you are the victim of an accident and make a claim for compensation against another party, ‘contributory negligence’ is the law’s way of describing whether your own actions played a role at all in causing the injury you sustained. Essentially, the defendant accused of negligence can in turn claim that your negligence contributed to that injury, thereby attempting to reduce the damages you might be able to claim from the negligent party. This is different to saying that you had, for example, a pre-existing condition which predisposed you to the accident-related injury; that would not affect fault. It’s negligence on your part that they have to prove, that is, some failure to have regard for your own safety.

To bring a claim in negligence, you must prove that your injury was the result of the defendant’s actions. For a defendant, the burden of proof falls on them to establish contributory negligence ‘on the balance of probabilities’ (meaning something is more likely than not).

Types of contributory negligence

There are generally two types of contributory negligence that can arise:

  • matters regarding the circumstances of the accident;
  • matters regarding the extent and nature of the injury/ies suffered by the claimant/plaintiff.

Some circumstances invoke a strict obligation on the relevant court or tribunal to make a finding of contributory negligence against the injured person, for example, failing to wear a seatbelt.

Example of contributory negligence

To provide an example of contributory negligence, a common scenario is that of a pedestrian crossing a road before checking to see that there are no cars coming. The pedestrian is then hit by a car and files a compensation claim against the driver of the car. The driver, or their Compulsory Third Party Insurance (CTP insurer), can then claim that the pedestrian had stepped out onto the road in front of them and there was no way of avoiding the collision. By proving this, the driver can prove that the pedestrian was contributorily negligent.

The importance of the facts surrounding the accident are absolutely crucial, as these can determine the success or failure of a claim. No situation is ever the same, therefore the facts need to be carefully considered. For example, the defendant in the scenario above might state that the fault belongs entirely to the pedestrian, whereas the pedestrian might argue that although he was at fault for attempting to cross the road without first looking, there was sufficient amount of time for the driver to avoid the collision. Perhaps the driver was speeding? Perhaps the driver was distracted by his mobile phone? The scenarios are endless, which demonstrates why each fact needs to be carefully considered in a negligence/contributory negligence claim.

Negligence in NSW and amounts of available compensation

The approach the court uses to determine contributory negligence in negligence situations is expressed as percentages. To provide an example of this by using the scenario above, the court might distribute equal responsibility between the driver and the pedestrian, therefore stating that each party contributed to the accident by 50%. The amount of compensation the claimant would otherwise have been entitled to is then reduced by 50%.

In this way, you can win a claim and still be found contributorily negligent. If you are found 100% contributorily negligent, you have for most intents and purposes lost the case.

Intoxication and criminal activity

A scenario where the injured person was also intoxicated or involved in a criminal activity at the time of the accident is governed by specific rules.

With intoxication, it is stated in the Civil Liability Act 2002 (NSW) that if a plaintiff is found to be intoxicated at the time that the accident occurred, the plaintiff is adjudged to have contributed to their own injuries and the compensation available to them will be decreased by a total of 25%. Similarly, in scenarios involving both intoxication and a motor vehicle, the available compensation is reduced by 50% instead of 25%.

With criminal activity, it is up to the discretion of the court as to whether they decide to award any damages at all to the plaintiff, if he or she sustained an injury while participating in illegal or criminal activity. If it is felt that this is too unfair, they may choose to award a smaller amount of compensation.

Conclusion

If you’ve been involved in an accident, seek legal advice. A legal professional, who has had exposure to a variety of factual circumstances and judges’ decisions, will be able to help you determine whether you are entitled to claim compensation and whether the amount might be reduced because of contributory negligence on your behalf.

types of personal injury compensation

What Types of Personal Injury Qualify for Compensation?

Over recent years, the number of Australian citizens who find themselves seeking hospitalisation for personal injury has been steadily rising. In fact, the Australian Institute of Health and Welfare reports that the number of hospital visits has increased over the past few decades. Likewise, personal injury claims have risen, making it imperative that everyone have a basic understanding of what personal injury law will cover and how to file a claim. If you or a loved one have suffered serious harm from the wrongful or negligent actions of another, you may be able to receive compensation through a personal injury claim.

Types of personal injury claims: Personal injury claims are the most commonly handled compensation claim and they cover a wide variety of accidents ranging from motor vehicle injuries, public slip and falls, negligence, on-the-job injuries, and more.

  1. Motor vehicle: Extremely common, personal injury claims arising from motor vehicle accidents happen daily. These claims involve all manner of vehicles, including cars, buses, trucks, motorcycles, mopeds, and may involve drivers, passengers, or pedestrians. When involved in a motor vehicle accident, you should contact the police, report to your insurance agency, and seek medical attention right away in order to best support both your claim and your health moving forward.
  2. Workers’ compensation: Provided to employees, workers’ compensation exists to protect workers from hazards in the workplace and prevent employer negligence by maintaining safety practices. You may be able to receive workers’ compensation if you are injured in the course of your employment or whilst present on the work site. It is important to remember that you are free to file a workers’ compensation claim without fear of reprisal, as that is a right secured to you by law. You should note that workers are able to file claims for immediate injuries as well as long term injuries including: diseases, aggravated pre-existing conditions, injuries sustained whilst travelling for work, and injuries sustained whilst receiving treatment for another work injury.
  3. Medical negligence: Often a source of very serious injuries, medical negligence occurs when a medical professional fails to act with the same level of care a reasonable medical professional would under the same circumstances. Because of the high level of training they receive and the importance of their profession, medical practitioners are held to a higher standard of care than the average citizen. Misdiagnosis, failing to appropriately inform a patient of potential risks, incorrectly prescribing medicine, incorrectly performing a procedure, and incorrectly interpreting medical results can all give rise to a claim for medical negligence.
  4. Public liability: A broad area of personal injury law, public liability covers a range of injuries. From slip-and-falls at the supermarket to psychological injuries, you may have the foundation of a claim if your injury was caused by the negligence of another. If the owner or proprietor of a public space has failed to expend the right amount of care to protect the safety of their customers, they will likely be held responsible.

Most important to know is that there are strict time limits to bring any type of claim, ranging from 28 days to three years.

If you or someone you know has any questions regarding a recent injury or possible personal injury claim, please do not hesitate to contact our Compensation Lawyers Sydney today. They will have the experience, training and legal savvy to advocate for you and ensure you receive the compensation you deserve.

social media and injury claim

Social Media and Your Injury Claim

In the United States, suspects arrested in criminal cases are constantly warned that anything they say may be used against them in a court of law. In Australia, lawyers are now warning plaintiffs that anything they post on social media can and will be used against them by defendants and insurance providers in personal injury, worker’s compensation and other types of compensation cases.

These issues were to the fore recently in Foong v Ghaly, McLellan [2017] NSWDC 303. In this case, the plaintiff sought $20,665,550 in compensation for physical and psychiatric injuries sustained in two separate motor vehicle crashes she was involved in within a period of six months.

The plaintiff – who represented herself in the matter – argued that the injuries stemming from the accidents precluded her from working and sought compensation for economic loss. She also claimed that she required help because the injuries hindered her ability to do routine household chores and sought compensation for home care.

Finally, she argued against the use of her social media posts at trial, claiming they were “irrelevant and should not be tendered”. The judge disagreed and permitted their use for the following reasons:

  • the use of material posted on social media as evidence in civil and criminal matters is now considered routine;
  • relevant laws do not include any special provisions for use of such material, nor do they require that an opponent be advised they will be used;
  • this type of material is often proffered in personal injury cases when there is doubt about the claimant’s credibility and/or the extent of the injuries he or she is claiming.

The judge also allowed the material to be tendered because he couldn’t find any legal precedent for the exclusion of social media pages from personal injury cases. However, there is growing legal precedent for the inclusion of such material.

In the end the judge’s reasoning was well founded because the plaintiff’s social media posts did not support her claims. In fact, the judge found that the plaintiff’s “lack of credibility was overwhelming” and dismissed her claim that the injuries rendered her unable to work, based on some of her social media posts.

In the end, her award was just $1,250 in each case – $1,000 in each claim for past wage loss and $250 in each claim for future medical expenses.

Lawyers advise this is a cautionary tale not only for people seeking compensation in New South Wales, but elsewhere as well. This is because insurance providers – many of which have their own investigators – have learned what type of information to look for on various social media platforms. Something you post without a second thought could turn out to be incriminating evidence used at trial.

You should also be aware that your posts aren’t the only ones subject to scrutiny. Once they gain access to your social media pages, insurers will note your connections on each platform. They’ll then review any posts those people make about you. A seemingly innocuous comment such as, “it was great to see you at the family barbecue last week”, or photos of you at the family barbecue on someone else’s timeline, could be used as evidence against you in a case where you are seeking compensation as a result of, for example, the psychological impact of your accident/injuries on your desire to socialise (or lack thereof).

As we have seen, insurers will use material sourced from your social media and related accounts not only to prove that you weren’t as badly hurt as you claimed, but also to show that you are still capable of working, and the like. This is largely because, as the judge opined in Digby v The Compass Institute Inc & Anor [2015] QSC 308 (‘Digby’), Facebook is akin to a “modern day diary,” and “therefore most likely disclosable by the plaintiff”.

Digby is widely recognised as “the first to involve an order by the Court for a plaintiff in a personal injury claim to provide a copy of all material contained in their Facebook account to the defendant insurer.

Nevertheless, the Digby case appears to have opened Pandora’s box.  As a result, if you are a plaintiff in a compensation case, you should exercise caution when using social media or refrain from using it at all until the matter has been resolved.

You should also be truthful, thorough and accurate when reporting a work-related or personal injury, especially if you plan to seek legal recourse. Although it may seem beneficial to embellish the ways in which the injury has affected your life, it is crucial that you refrain from doing so as this is rarely the case.

This is an emerging area of the law where new developments are likely to surface. If you have any questions about the use of social media in connection with personal injuries, or how it may affect your case, contact our Sydney Compensation Lawyers today.