What is contributory negligence in a personal injury claim?
Contributory negligence is the term used in a personal injury claim where the actions of an injured person have contributed to their injury occurring.
Is There An Example Of Contributory Negligence In A Personal Injury Claim?
If you are crossing a road and are hit by a car, but you did not look before crossing, and you then brought a motor accident claim against the driver who hit you, then that driver or their CTP Insurer will no doubt be claiming that you stepped out in front of them, and they had no time to avoid the collision.
They would be alleging that your actions contributed to the accident occurring, or, in other words, they will be alleging contributory negligence.
A claim of contributory negligence is usually referred to in percentages
That is, the percentage the injured person's actions contributed to the accident occurring. A claim of contributory negligence can be made by up to 100% by a defendant.
A claim of 100% contributory negligence would mean the defendant alleges that the plaintiff's accident and resultant injuries were totally as a result of the plaintiff's own actions.
This defence is also termed "volenti non fit injuria", or voluntary assumption of risk.
The circumstances of the accident in question are vitally important
For instance, looking at the situation where the pedestrian steps out in front of a motor vehicle on a highway, the driver of the vehicle may claim that the fault of the accident rests fully with the pedestrian for stepping out in front of the vehicle.
Whether an allegation of contributory negligence would succeed or not would depend on the circumstances of the accident in question.
Even in cases where there seems to be significant risk taking on the part of a plaintiff, there can still be grounds for a successful personal injury claim.
Even If Your Actions Contributed To An Accident, Doesn't Mean You Don't Have A Claim
Continuing with our example, as in the case of the pedestrian, just because they stepped out onto the highway without looking, does not mean that there is no personal injury claim for the pedestrian to pursue for their injuries sustained in the accident.
It may be that the driver of the vehicle had more than sufficient time to see the pedestrian when he stepped onto the roadway.
Continuing with our example, this could a mean they were not keeping a proper lookout.
And if they had been, he would have seen the pedestrian and have stopped his vehicle in time, or he would have been able to safely swerve to avoid the collision with the pedestrian.
Court may apportion responsibility for the accident between the parties
Further, if the driver had been paying proper attention, then he may have stopped the car sufficiently that the injuries sustained would have been much less severe.
In such case, the Court may apportion responsibility for the accident between the parties, they may also find that the driver and pedestrian each contributed equally toward the accident occurring.
In such case, the apportionment of contributory negligence against the pedestrian may be 50%.
How will contributory negligence affect the amount of compensation I will receive for my injuries?
What does contributory negligence mean to the amount of compensation the plaintiff is entitled to receive for their injuries?
When there is a finding that a plaintiff has been contributorily negligent for their injuries, this then results in a reduction in the plaintiff's gross damages to the extent of that contribution.
If the apportionment of fault or "liability" May Result In Reducing Plaintiff's Damages
For instance, in the case of the pedestrian, if the apportionment of fault for the accident, or "liability" as it is more commonly termed in personal injury claims, was made at 50/50 as referred to above, then this would result in the plaintiff's damages for their injuries from the accident being reduced by 50%.
So, for example, if the pedestrian was awarded damages for his injuries of say $500,000, then those damages would be reduced to $250,000 because of the contributory negligence of 50% found against him.
Mandatory reductions apply where intoxication or criminal activity contributes to injuries
In some cases, there are statutory provisions imposing mandatory reductions for contributory negligence.
Under the Civil Liability Act 2003 (CLA), there are mandatory reductions for cases where the plaintiff's intoxication has contributed to their injuries occurring.
Or where they have relied on the care or skill of another person who is intoxicated and they have sustained injury.
The reduction in such cases, if found, is a mandatory 25%.
What Happens If Intoxication & A Motor Vehicle Was Involved?
If it is the case that a motor vehicle was involved, then the mandatory reduction is increased to 50% (see Sections 46 to 49 of the CLA).
There are also restrictions on claiming compensation and damages in cases where a person has been injured whilst in the course of a criminal act.
In such cases, a Court can find that no award should be made, but where the Court considers it would be unfair not to award the injured person damages, then it does have a discretion to do so.
Mandatory Reduction For Contributory Negligence
Once again however, if Court decides that the plaintiff should receive damages despite the contribution of their criminal behaviour, then there is a mandatory reduction for contributory negligence of at least 25% that must be applied.
The Civil Liability Act 2003 (CLA), upon its enactment in 2003, also introduced total defences to injury compensation claims.
This is where the injuries have been sustained whilst participating in a dangerous recreational activity or as a result of an obvious risk.
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