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.
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.