What is "contributory negligence"?

Sometimes, it is obvious who causes an accident. Other times, liability is not so clear-cut. "Contributory negligence" may apply whenever an injured person's own negligence contributes to their accident or injury. 

A common example is of a driver who refuses to wear a seatbelt. Not wearing the seatbelt does not cause the road traffic accident, but it does cause the driver to suffer more serious injury than he would have sustained had he followed the correct safety precautions. In this scenario, the driver may be found to be partly responsible for his injuries. His compensation may be reduced to an amount that would have been awarded for a more minor injury assuming a seatbelt had been worn.

Where "contributory negligence" applies, the Court may reduce the compensation by an amount that reflects the part the claimant played in the accident.

Accidents at work and contributory negligence

Employees are expected to take reasonable care for their own safety at work and to follow the health and safety instruction given by their employer. Where an employee fails to co-operate, they may be found to be partly responsible for their injuries.

Suppose, for example, that a worker fails to wear the safety equipment provided by his employer. The worker is involved in a ladder accident that occurs for reasons unconnected to the safety gear, and the employer is found to be liable for the accident.

However, medical evidence suggests that the failure to wear the protective equipment resulted in more serious injury than might have been expected. The employer (or, more likely, the employer's insurance company and solicitor) puts forward a defence for contributory negligence.

The defence is essentially arguing that, while the employer should have to pay some compensation, the amount should reflect the lesser injury that would have occurred if the supplied protective gear had been worn.

If the Court accepts the argument, the Court will attempt to apportion blame between the employer and the employee based on the part that each of them played in the accident. For example, the Court may decide that the employer was 80 percent responsible for the accident, and the employee contributed by 20 percent.

The same 20 percent would be deducted from the Claimant's compensation award.

How do the Courts apportion blame? 

Under The Law Reform (Contributory Negligence) Act 1945, judges must reduce the Claimant's damages "to such extent as the Court thinks just and equitable having regard to the Claimant's share in the responsibility for the damage." 

Factors such as the age, experience and credentials of the Claimant may be taken into account, as well as their specific conduct. In general, the more irresponsible the behaviour, the greater the share of blame. 

While every case is different, the Courts historically have been reluctant to apportion a high degree of blame to employees. Health and safety legislation is designed to protect workers from their own misjudgement, inattentiveness and carelessness. Imposing too high a standard of care on employees might undermine the effect of the legislation, particularly in industries where it is simple for an error to be made, and for a small lapse to have very serious consequences.

Examples include accidents involving dangerous machinery and accidents on construction sites.

Does contributory negligence have to be decided by the Courts?

You do not have to go to Court to decide the issue of contributory negligence. Where both parties agree that the Claimant is, to some degree, the author of his own misfortune, then they can agree the percentage of blame in an out-of-court settlement.

The settlement would take the form of a "split liability agreement" whereby the Claimant receives the agreed proportion of their claim.