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Personal injury law is complicated. Usually, where someone else is at fault for an accident, victims have a right to seek compensation. According to the Law Society, over 3 million people are injured in accidents each year.
In many cases, though, determining who is to blame is complicated. Imagine someone is hit by a car when crossing the road. It seems reasonable to pass blame to the driver of the car. Right? Yes, but, what if that person crossed the road without looking and while chatting on their phone? Is the accident partly their fault?
That is where contributory negligence comes in. In simple terms, it’s a way for the courts to fairly award damages where the claimant may have contributed to his or her own injuries. Let’s take a look at personal injury claims (the process), exactly what contributory negligence is and how it can affect personal injury claims.
The process for personal injury claims
If you have had an accident or injury, you may be able to make a personal injury claim and receive compensation from the person/people or company who you believe is responsible for your injuries. It is important that you seek professional advice. See here for useful information about personal injuries from Citizens Advice. It is advisable you seek legal advice as soon as possible after the accident. Your solicitor will help you with your claim.
Your legal representative will send a claim letter to the person or company you believe to be responsible for the accident and your injuries. The letter will detail your injury and your account of what happened. You are known as the claimant.
The person who caused the injury is known as the defendant. The defendant has to reply within a set time. You will need to see a specialist as compensation will be based on medical evidence. A medical expert’s report will determine how the injuries affect you now and how they will affect you in the future.
Your solicitor will advise you how much they think the claim is worth and will ask you what you are prepared to accept. Your claim may be able to be settled outside of court. If you can’t settle for a fair amount or if the defendant feels you are in some way to blame, the case will need to go to court.
What is contributory negligence?
Contributory negligence is based on the concept that in some cases the claimant is partially at fault or a contributor to the accident which caused their injuries. So, while the claimant may not have been responsible for the accident, they may have contributed in some ways to the extent of the injuries they suffered.
When it is proven that the claimant’s own negligence contributed to injuries, damage or loss, the amount a defendant is required to pay in compensation can be significantly reduced. Apportioning blame can make a big difference to compensation claims.
In common law, contributory negligence used to act as a complete defence. However, under the Law Reform (Contributory Negligence) Act 1945, contributory negligence operates as a partial defence whereby the courts can apportion loss between the parties. Contributory negligence is most common in road traffic accidents and accidents at work.
Here are some examples where the claimant has grounds for a personal injury claim, but may have exacerbated the injuries sustained as a direct result of their own action (or inaction):
- A car passenger who wasn’t wearing a seat belt at the time of a road accident
- A motor cyclist who fails to wear a helmet and is injured in a traffic accident
- A construction worker not wearing the correct safety gear (even though it was provided)
- A pedestrian running out in the road without looking (though drivers have a duty of care to drive in a way that allows them to perform an emergency stop)
- Performing dangerous duties at work without having had enough sleep
- Injuries from using equipment at work but without adhering to proper training advice
- Failing to check the depth of a swimming pool before diving into it
Why is contributory negligence important?
If you are making a claim for personal injury, contributory negligence could affect the compensation you receive. A court will assess the blameworthiness of each party and set the amount of compensation to what they think is just and equitable. The level of compensation awarded will depend on the levels of liability. So, for example, if the claimant is seen to be 10% liable for the accident, the sum awarded will be reduced by 10%.
Case study: Badger v Ministry of Defence (2005)
In the case between Beryl Badger and the Ministry of Defence (MoD), Mrs Badger sought damages following the death of her husband from lung cancer after his exposure to asbestos while working for the MOD. However, the defendant argued that the deceased had continued to smoke, even though he knew the risks.
Damages were reduced by 20% , as Mr Badger’s smoking was seen to be a contributory factor in the reason for his death. For further examples of cases where contributory negligence applied, see here.
Peter Wallace has been an advocate for mental health awareness for years. He holds a master’s degree in counselling from the University of Edinburgh.
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