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:
- the injured party’s actions (or lack of actions) also contributed to the accident; or
- 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 BPC lawyers today on (02) 8280 6900 or info@bpclaw.com.au for a free case consultation.