Contributory negligence occurs where an injured person (plaintiff) is found to have contributed to their personal injury in some way through their own negligence.  

Insurance companies, persons or organisations that are being sued for compensation (defendant), may try to use the defence of contributory negligence. They may do so by arguing the plaintiff is partially or completely to blame for their injury and in consequence, their compensation payment should be reduced by a certain amount or not be paid at all. 

If you believe your compensation claim may be affected by the defence of contributory negligence, we strongly recommend you seek advice from an experienced personal injury lawyer.  

What is contributory negligence? 

A plaintiff may be found to have contributed to their injury if they fail to demonstrate care for their own safety.  

Contributory negligence can either be used as a partial or full defence resulting in compensation either being reduced by a percentage or not paid at all. If the defendant intends to use contributory negligence as a full defence, they must prove the plaintiff was fully responsible for their injury and therefore the defendant did not breach their duty of care owed to the plaintiff and is not liable to pay any damages.  

A partial contributory negligence finding is often given as a percentage of the plaintiff’s fault. For example, contributory negligence of 20% means 20% of the plaintiff’s injuries were caused by the plaintiff’s own negligence. Therefore, the remaining 80% responsibility for negligence remains with the defendant.  

Who must prove contributory negligence? 

The onus is on the defendant to prove either full or partial contributory negligence. 

A defendant needs to demonstrate that the plaintiff failed to take the standard of care a reasonable person would have taken in the same position. If the defendant is successful in proving contributory negligence, the court will determine the extent the plaintiff’s actions are responsible for their injuries. 

This is best demonstrated by the following examples. 

Example 1 

If a defendant can successfully prove that a plaintiff was not wearing their seatbelt when they were ejected from a car in a motor vehicle accident, the plaintiff will be held partially responsible for their injuries, as if they had been wearing their seatbelt, they would not have been ejected from the car and sustained such extensive injuries.  

Example 2 

A plaintiff slips and breaks their ankle after walking through a clearly signposted wet floor that had not yet been mopped up by restaurant staff. The defendant may argue that the plaintiff should be bear some responsibility for their injury as they clearly ignored the “wet floor” sign and continued to walk through the wet surface.  

Example 3 

A plaintiff working on a construction site fails to consistently wear their ear plugs despite their employer’s requirements, advice, and placement of warning signs to wear ear plugs. It is also discovered that the construction site’s noise levels had been exceeding the maximum amount of decibels for extended periods of time. The plaintiff suffers a partial amount of hearing loss in both ears. In this case, the defendant can argue that had the plaintiff worn their ear plugs as required, they would have suffered a lesser amount of hearing loss. 

Defendants such as major insurance companies, will often use contributory negligence as a defence. This can be intimidating and overwhelming for plaintiffs, this should not however prevent a plaintiff from pursuing a claim for compensation. If you find yourself in this situation, we recommend you seek legal advice as soon as possible.  

Other defences that automatically reduce liability of a defendant 

There are various laws that include provisions which automatically reduce liability of a defendant in certain circumstances. An example is section 48 of the Civil Liability Act 2003 (Qld), which imposes a 25% reduction of liability where there is evidence that the plaintiff was intoxicated at the time they sustained their injury or injuries. 

Further, if evidence can be shown that the plaintiff’s injury or injuries were sustained while they were engaged in criminal activities, a court has the discretion to not award any damages for negligence, so long as doing so would not be unfair to the plaintiff.   

It is best to seek legal advice immediately if the above scenarios may apply to your situation.  

Conclusion 

The defence of contributory negligence may seem like a simple notion at first, however it can at times become a complex area of law, more so for plaintiffs who are dealing with defendant insurance companies who are claiming that a plaintiff is partially or completely to blame for their injury. It is after all, in the best interest of the defendant to not make any or reduced compensation payments. This is why we recommend you seek legal advice from an experienced personal injury lawyer if you find yourself in this position.  

If you or someone you know wants more information or needs help or advice, please contact us on (08) 8155 5322 or email [email protected].