A doctrine of common law, 'contributory negligence' describes the failure of an injured person making a personal injury claim, the claimant, to take appropriate actions to reduce their risk of injury.
Contributory negligence leads to the Court to treat the claimant as being partly responsible for the injury they have sustained. In short, the claimant's own actions contributed to the severity of their injuries.
An example of contributory negligence
A common example contributory negligence occurs when a person chooses not wear a seatbelt and is subsequently injured in a road accident.
By not wearing a seatbelt, they may have not contributed towards the accident, but they have contributed towards their injuries. The claimant is likely to have sustained more serious injuries than if they had worn a belt.
Contributory negligence allows for the sharing of liability between the claimant and the defendant.
If contributory negligence is established, blame will be apportioned between the two parties by the Courts. For example, if the Court finds that the claimant was 25 percent responsible for the accident, the same percentage will be deducted from the claimant's compensation award.
The legal context
The principle of contributory negligence exists as a defence to the tort of negligence.
A tort is an act of wrongdoing that occurs when one party has breached a duty of care that they owe to another party, and that breach has caused the second party to suffer loss or harm.
In earlier common law, contributory negligence acted as a complete defence. If the injured party was proven to be partially at fault in any way, then the defendant could not be held liable and no compensation would be paid.
In 1945, the Law Reform (Contributory Negligence) Act came into force allowing for the apportionment of blame based on the judgement of the Courts.
How is contributory negligence applied in practice?
Once the defendant has admitted liability, they can then put forward an argument for contributory negligence. This argument will then be considered by the Courts.
In some cases, the Courts may also find contributory negligence even where it is not explicitly offered as a defence.
'just and equitable'
The Courts' guidelines for judgement are vague. The only requirement is that they must be ?just and equitable'.
Each claim that is made is carefully considered based on all the facts of that particular case. The outcome of two cases that occur even in similar circumstances can be different.
Factors such as age, experience and the situation of the two parties play a role in determining the apportionment of blame.
Once blame is apportioned, the percentage representing the claimant's portion of blame will be deducted from the final compensation award.
What kind of cases can it be applied to?
Contributory negligence can be argued in any case deciding liability.
Examples of claimants who may be found by the Courts to be partly responsible include:
- A employee injured when not using equipment correctly, but who has been properly trained
- A pedestrian injured in a road collision who crosses a road without looking
- A person injured using public transport but who is heavily intoxicated at the time
Conclusions regarding contributory negligence are drawn based on the available evidence.
The defence of contributory negligence is not available in the case of intentional or malicious wrongdoing on the part of the defendant.
If a claim has not yet gone to Court, and both parties agree the degree to which they were responsible for the claimant's injuries, compensation may be settled on the basis of a split liability agreement.
For more information regarding the issue of contributory negligence, or if you believe it may be a factor in your potential claim, call us on 0800 612 7456 to speak to an expert.
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