‘Contributory negligence’ is a legal principle that applies to some personal injury claims. When a person (the Claimant) suffers injury in an accident they believe wasn’t their fault, they may bring a personal injury claim against the person or organisation they allege to have been at fault for the accident (the Defendant).
Sometimes, the Defendant’s insurance company or their solicitors will respond by accepting that the Defendant was to blame for the accident to a certain extent. However, they may also, in response, allege the Claimant was partly to blame for the extent of the injuries they suffered. In other words, they allege contributory negligence on the Claimant’s part.
An allegation of contributory negligence does not prevent the Claimant from bringing a successful personal injury claim; however, if contributory negligence gets proved, it will reduce the amount of compensation they receive.
Here, we explain more about contributory negligence, how it works in practice, and its potential impact on the Claimant’s personal injury compensation.
What is contributory negligence?
When you ask an experienced personal injury solicitors firm, such as Mooneerams, to handle your claim, they will contact the other person involved in the accident, informing them you intend to make a claim. The insurers or solicitors of that person will respond in one of three ways:
- Take full responsibility.
- Deny any responsibility whatsoever.
- Accept that they were to blame for the incident, but argue that your actions contributed to the outcome, too. In other words, they allege ‘contributory negligence’.
Give me some examples of contributory negligence
Considering some real-life situations to which contributory negligence applies helps us understand how it works.
Here are a few examples:
- A Claimant got injured in a road traffic accident whilst not wearing a seatbelt. The fact that they weren’t wearing a seatbelt did not cause the accident, but it might have contributed to the severity of their injuries. If that were the case, the court would reduce the size of damages it awards to account for their contributory negligence.
- A pedestrian walks in front of a car that is going too fast. Here, the court might decide the pedestrian had been partly to blame for the accident because they hadn’t looked carefully enough before crossing the road.
- An employee suffered an eye injury in an accident at work while using what turned out to be defective machinery. The employer had provided safety goggles, but the employee either decided or forgot to use them. The employer would be responsible for not providing safe machinery for the employee to work on. On the other hand, the employee might be partly to blame for the extent of the injury suffered because they failed to use the safety equipment their employer supplied them with.
How does contributory negligence work in practice?
Section 1 (1) of the Law Reform (Contributory Negligence ) Act 1945 outlines how ‘contributory negligence’ works. We’ve paraphrased this section to try and make it easier to read than the original text:
“If someone suffers harm due to a combination of their own fault and another person’s fault, they can still claim compensation. However, the amount they receive may be reduced based on their level of responsibility for the incident. The court will decide what’s a fair amount to award them by considering how much the person claiming compensation contributed to their own harm.”
Contributory negligence has no bearing on primary liability for the accident. That rests with the Defendant. It is only relevant to the question of quantum, i.e., how much compensation a Claimant is entitled to.
Insurance companies use contributory negligence as a tactic to try to reduce the level of compensation they have to pay. However, raising it as an argument is one thing; they still have to prove the allegation of contributory negligence against the Claimant.
It is up to the Defendant/the insurers to prove contributory negligence by showing:
- The Claimant did not take reasonable care of their own safety;
- Their failure contributed to their injury, and
- The harm they suffered was reasonably foreseeable.
If the Defendant raises contributory negligence, they will propose a percentage split. For example, they might say that the Claimant and the Defendant were equally responsible for what happened, so they will argue for a 50/50 split.
In other cases, they might suggest the Claimant was 25% responsible, so they put forward an offer on quantum based on a 75/25 split.
There are many case law precedents in the form of previously decided cases that help lawyers and judges decide whether contributory negligence is applicable in a given case and, if so, the percentage that should apply.
How do Mooneerams respond to an allegation of contributory negligence against one of their clients?
At Mooneerams, when dealing with a case in which contributory negligence is an issue, we begin by assessing the evidence forwarded by the Defendant in support of their assertions that our client was partly to blame for the incident.
If we think the Defendant’s position has merit, based mainly on medical and other evidence, we’ll consider whether the proposed percentage split is reasonable. If we don’t believe it is, we’ll suggest a counteroffer based on a lesser split. Often, we’ll be able to agree on an appropriate percentage without going to trial, although cases can still go to court for the judge to make a ruling.
This is more likely to happen when the overall amount of damages in question is significant. In catastrophic or serious injury claims, where compensation runs into the many thousands or even millions of pounds, a few per cent less in the compensation award to a seriously injured Claimant can prove very costly, especially where the cost of future care, rehabilitation and other expensive care items formed part of the Claimant’s Schedule of Damages.
As stated, it is up to the Defendant to prove contributory negligence, and we always hold them to the highest burden of proof. Just because they allege contributory negligence doesn’t always mean they can prove it.
How does contributory negligence affect personal injury compensation?
An award of personal injury compensation is intended to put the Claimant back in the position they would have been in had the accident not occurred. The award includes an amount for pain, suffering, and loss of amenity (quality of life) and an amount to cover any financial losses incurred, such as loss of earnings.
Where the judge accepts that the Claimant was partly responsible for their accident, they might reduce the compensation by the percentage for which the Claimant was to blame.
Take, for example, the case of someone injured in a road traffic accident who wasn’t wearing a seatbelt. The judge would not reduce their compensation if the evidence showed that they would still have been injured to the same extent even if they had been wearing a seatbelt.
If the Defendant’s solicitors prove that the Claimant’s contributory negligence in not wearing a seatbelt made their injuries worse, the usual reduction is 15%. In cases where wearing a seatbelt would have prevented the injury entirely or significantly reduced its severity, the typical reduction is 25%.
What does this mean for my personal injury claim?
Contributory negligence only applies if you were partly to blame for your accident. If you weren’t, your solicitor must reject any defence put forward on that basis and argue for 100% of your compensation.
If the evidence establishes that you were partly to blame, you can – and should – still make a personal injury claim, even though you know your compensation may be based on less than 100% liability in your favour to reflect your contributory negligence.
If you are thinking of making a personal injury claim but are worried about the possibility of contributory negligence being raised by the Defendant, get in touch with Mooneerams.
We’ve decades of experience handling personal injury claims for Claimants where the Defendant solicitors have raised contributory negligence, and often, we still get a 100% settlement in our client’s favour.
Call us on 029 2048 3615 or request a call back by sending us your details using the form on this page.
