If you have been injured as a result of an accident due to someone else’s negligence you may be entitled to make a claim for compensation.
When a claim is submitted to the relevant insurance company, very often there is an allegation of contributory negligence made in response to the claim.
Contributory negligence is used as a defence by insurance companies and / or their legal representatives to allege that you were in some way, partly responsible for your own injuries. The relevant part of the law that addresses this issue is set out within the Law Reform (Contributory Negligence) Act 1945. An allegation of contributory negligence can only be used as a partial defence. This means that the person or organisation that owed the duty of care, or who is found to be at fault, is unable to escape from their responsibility and liability entirely where it can be proven that the accident was caused as a result of their negligence or error, even when it can be shown that you have also acted negligently. Contributory negligence applies to all areas of personal injury law.
The most common areas of personal injury law where an allegation of contributory negligence is made is in road traffic accidents. The Defendant has the onus of proving, on the balance of probabilities, that:
(1) the Claimant failed to take care of their own safety
(2) and that this contributed to their injury
Common examples of contributory negligence
The following are common examples of where the Claimant has contributed to their injuries and losses:
- failure to wear a seat belt in a car accident
- failure to wear a helmet
- failure to wear Personal Protective Equipment (provided)
- Crossing a road without having a proper look
- Consuming alcohol before driving
- Lack of proper training to use equipment
Who decides?
The Defendant will usually want to defend any claim against them. They may only offer what they consider to be a fair split on liability ie responsibility for the accident. Where the Claimant does not accept the split offered by the Defendant and the parties are unable to agree how much blame should be attributed to each, the matter will be decided by the Court, following careful consideration of all the evidence in the case.
How does contributory negligence affect the claim?
If the Claimant is found to be 10% responsible for their accident, the overall level of compensation awarded is reduced by 10%. The same ratio will apply to their claim for financial losses ie loss of earnings, medical expenses, travel expenses, etc.
For a Claimant to be successful in their claim, they must prove that the Defendant was at least 1% to blame for the accident. If the Claimant is found to be 50% to blame for their accident, they can only recover the equivalent of 50% of the overall value of their claim. It is therefore important for the Claimant to accept the least amount of responsibility for their accident if they were in some way partly responsible and equally as important that they seek legal advice if facing an allegation of contributory negligence.
Contributory negligence and medical care
It is not widely known that failing to seek appropriate medical treatment following your accident can lead the insurance company and the Court to say that the overall value of your claim for compensation should be reduced as you failed to mitigate your losses, particularly if your medical condition has deteriorated over time which could have been prevented had you visited your GP or hospital following your accident.
If you suffer an injury during the course of your employment, it is important that you notify another member of staff immediately about your injury as failure to do so can lead the insurance company and the Court to hold that you have contributed to your ongoing pain by failing to bring your injury to the attention of others within the work place.
If you or someone you know would like some more information about an allegation of contributory negligence or a personal injury claim in general, please do not hesitate to contact us on 0330 – 332 – 4844 or email: [email protected]