Category

Negligence

What is Contributory Negligence?

In many personal injury claims, the facts are clear-cut.  One person is injured as a result of the fault of another person. If the person who caused the injury was careless or reckless, it may be legally classified as negligence. The person at fault must compensate the injured person for their losses.

But what happens if the person who got hurt also did something that contributed to the accident? This is where the legal concept of contributory negligence comes into play.

A complete or partial defence

The defendant will often raise the issue of contributory negligence and allege that the injured party was partially or largely responsible for the accident.

Let’s consider the following scenarios:

  1. A group of university students is playing Frisbee in a small park, and one of them throws the disc a bit too hard. Another student chases it onto the road without checking for oncoming traffic and is hit by a speeding car. The student, who sustains a broken leg and other injuries, sues the driver.

Here, the driver and student are both negligent. So the only issue for the court to decide is the extent to which the student’s negligence contributed to his injuries. This will determine how much compensation is awarded.

  1. A group of university students is playing Frisbee in a small park near a busy road. One of them throws the disc a bit too hard and his friend chases it onto the road without checking for oncoming traffic. The student who chases the Frisbee is hit by a car and sustains a broken leg and other injuries. However, the driver did not have time to avoid the student.

In these circumstances, the student who chased the Frisbee is entirely at fault. Therefore, the driver has no liability in connection with the accident.

Percentage of fault

The court will determine the extent of the contributory negligence by assessing the percentage liability of each party.  For example, in the first scenario detailed above, a court might determine that the injured student was 25% responsible and driver 75% responsible.  Accordingly, the damages payable would be reduced by 25%.

How compensation is awarded when there is a finding of contributory negligence

Before the introduction of the Law Reform (Miscellaneous Provisions) Act 1965, an injured party that was guilty of contributory negligence would be prevented from obtaining any compensation.

Since that time, the amount of compensation awarded is usually reduced by the same percentage as the plaintiff’s negligence. In other words, if a court assesses a plaintiff’s contributory negligence at 40%, the compensation awarded reflects a 40% reduction; if a court assesses the plaintiff’s contributory negligence at 50%, the compensation awarded is half of what would have otherwise been awarded, and so forth.

However, it is important to note that the specific rules addressing liability for contributory negligence are now detailed in each Australian state or territory’s relevant legislation.

Proving contributory negligence

Contributory negligence is a defence and therefore it is up to the defendant to prove that the plaintiff was partly to blame for the injuries that were suffered.  That is, the defendant must prove that the plaintiff failed to take reasonable precautions that would be exercised by anybody else in the same circumstances.  The defendant must prove that it was more likely than not that the injured party failed to take those precautions.

Criminal conduct and contributory negligence

All of this is well and good, but what happens if someone was injured while they were intoxicated? Or worse yet, what happens if they were the injured driver in a drink driving accident that also injured someone else?

In NSW, the answers to both questions can be found in the Civil Liability Act 2002 (CLA). It allows for a presumption of contributory negligence in any situation where an injured plaintiff was intoxicated. The act stipulates that compensation awarded should automatically reflect a 25% reduction, or a greater percentage determined by the court to be appropriate in the circumstances of the case, such as a drink driving matter.

In general, if someone gets hurt whilst committing a crime, a court can refuse to award any compensation whatsoever. However, if the court deems that too harsh, it also has the discretion to award some compensation.

Kids and contributory negligence

Earlier, we discussed a scenario in which a university student contributed to his own injury by running onto the street without looking. But what would happen if a young child did the same thing with the same outcome?

Children can be guilty of contributory negligence.  The law requires an assessment of what actions a person in the plaintiff’s circumstances, should have taken.  Therefore, the court will not usually find that a young child is guilty of contributory negligence.

If there is a finding of contributory negligence, any reduction of compensation is based on the child’s awareness and understanding of the situation, and how his or her actions contributed to it. In this context, it is important to note that a child of a certain age is expected to have the same awareness and understanding of a situation and his or her actions, as peers in the same age group.

If you have questions or concerns, we are here to help

If you were involved in an accident and have questions or concerns about contributory negligence, getting the right legal advice is critical. Contact us for a consultation and assessment to see if or how contributory negligence may affect your case today on 1800 517 329 or info@bpclaw.com.au

When is an accident partially your fault? Contact BPC Lawyers.

When is an accident partially your fault?

Contributory Negligence

Where the Court considers that the defendant has breached its duty of care to an injured plaintiff but that the injured plaintiff was partly responsible for the injuries, damages payable will be reduced in accordance with the proportionate of liability of each party.  

The Courts have historically understood however that the assessment involves more than a comparison of culpability and that the whole conduct of each party must be considered. The leading case is Podrebersek –v- Australian Iron & Steel Pty Limited in which the court said: 

An apportionment between the plaintiff and the defendant of their respective share in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man … and the relative importance of the act of the parties in causing the damage … it is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.”  

Subsequently, the Court of Appeal in Talbot-Butt –v- Holloway said: 

“The culpability of the plaintiff and the defendant must take proper account of the fact that … the plaintiff’s conduct posed no danger to anyone but herself, while the defendant who was driving (the vehicle) … was in charge of a machine that was capable of doing great damage to any human being who got in its way.”  

As a result, the Courts have generally taken the view that a pedestrian who departed from the reasonable standard of care was less culpable than the driver whose departure may have been of equal measure because of the damage which could be inflicted by the car.  

Justice Baston however has considered the doctrine of contributory negligence in view of the Civil Liability Act 2002. The Court in Cosmidas noted that because the legislation required a consideration of the probability that harm would occur if care were not taken, the culpability of each party is no different merely because that party was in a position to cause greater harm.  

Subsequently, the Court of Appeal appears, at least in one instance, to have returned to the pre-Cosmidas approach and it remains to be seen whether in fact the Civil Liability Act has had an impact on the manner in which contributory negligence is to be assessed. 

Scott Hall-Johnston 

BPC