KEY TAKE-OUTS:
- Contributory Negligence is where a person’s actions, omissions or carelessness made their injury or injuries worse.
- A person who is found to be contributorily negligent can still receive compensation for their injury in some cases.
- If a person is injured while intoxicated or while committing a crime, their level of contributory negligence, if any, will be affected.
What is Contributory Negligence?
If you are injured in an accident and make a claim for compensation against another party, the other party may claim you were ‘contributorily negligent’ to sustaining your injuries. This means that your actions, whether it be by way of carelessness, an act or omission, contributed to your injury. If you are contributorily negligent, this means that you were partially, or mostly, at fault for your injury and that the other party, to which the claim is being brought against, cannot be 100% liable for your injury or any claimed compensation.
How is Contributory Negligence Proven?
The Civil Liability Act 2002 (NSW) (‘CLA’) stipulates that to prove contributory negligence, it must be shown that the injured person failed to take precautions that a reasonable person would have taken to avoid their injury.
The test of whether a person has been contributorily negligent is whether a reasonable person, in the plaintiff’s position, would have taken precautions against the risk of harm to himself or herself.
In determining whether a person has been contributorily negligent, the following factors (amongst others) are relevant:
- The probability that harm would occur if care was not taken;
- The likely seriousness of the harm;
- The burden of taking precautions to avoid harm; and
- The social utility of the risk-creating activity in which the injured person was engaged.
Further to the above, whether an injured person has been contributorily negligent according to the above criteria listed at 1 to 3 must be determined based on what the injured person knew or ought to have known at the date on which the injury occurred.
The court will be satisfied as to whether a person was contributorily negligent on the balance of probabilities i.e. more likely than not.
How Does Contributory Negligence Affect a Claim for Compensation?
If a defendant is successful in proving the injured person contributed to their injuries, liability for the injury will be reduced according to the degree of contributory negligence. This means that any compensation payable to the injured person will also be reduced.
Generally, this is provided for as a percentage. For example, if an injured person is found to be 10% contributorily negligent to the cause of their injuries, the defendant will be found to be 90% liable for the cause of the injury.
Monetary compensation is then ordinarily reduced in proportion to the percentages of liability and contributory negligence. Continuing the above example, if the injured person made a claim for $100,000.00 and was found to be 10% contributorily negligent, the damages awarded would be reduced by 10%, that being by $10,00.00.
If it is found that the injured person’s contributory negligence is 100%, the defendant will not be held liable and no compensation will be paid to the injured person.
In some areas of injury compensation, however, a claim is unable to be brought if the injured person was more than 61% contributorily negligent, such as a common law damages claim for a motor vehicle accident.
Can a Child be Contributorily Negligent?
Children above the age of five years can be found contributorily negligent.
The standard of care for a child alleged to have been contributorily negligent is what another reasonable child of the same age as the injured child would have been expected to do. This applies the same ‘reasonable test’ principle as detailed above.
The case of McHale v Watson [1966] HCA 13; (1966) 115 CLR 199 (7 March 1966) demonstrates this principle. In this case, three young children were playing together when one of the children threw a sharp metal rod at another child causing permanent blindness. The children were all 12 years old at the time of the incident. The High Court of Australia found that the child who threw the rod could not be held contributorily negligent, as a child of the same age would not have foreseen the consequences of their actions, nor did the child intend to cause harm.
Intoxication, Criminal Activity and Contributory Negligence
In NSW the CLA states where an injured person is intoxicated at the time of their injury, unless intoxication was not self-induced, they are at least 25% contributorily negligent. This also applies to underage drinkers. But no damages are to be awarded where damage or injury to the person is unlikely to have occurred if the injured party had not been intoxicated. In regard to criminal activity that caused the plaintiff’s injury, it will be up to the court to determine the amount of compensation a plaintiff will receive.
An Example of Contributory Negligence
James leaves a bar after celebrating the end of the football season with his friends. He is intoxicated but gets in his car to drive home. He crashes his car into Joshua’s car which is parked illegally on the side of the road. Joshua is injured in the crash and sues James.
The matter proceeds to Court where it is found that, as his car was parked illegally, Joshua contributed to his injury. The Judge found Joshua 20% contributory negligent, and Joshua’s claim for compensation was reduced to 80% of the initially claimed amount.
For More Info
If you have been injured, the personal injury team at Coutts can help you. We deal with a variety of cases, including those where injured persons are partially at fault. For assistance with your compensation matter, please reach out to our experienced team to receive high-quality legal advice tailored to your situation.
The names and examples used in this blog are fictional and do not relate to actual or real-life persons. This blog is merely general and non-specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever to this blog, including all or any reliance on this blog or use or application of this blog by you.
