Contributory negligence is a legal term used as a defence to suggest for example in a personal injury claim the person who is injured is also partly to blame.
Proving liability (or who is to blame) in personal injury claims is always the first ‘hurdle’ to overcome. This means proving that the Defendant is to blame for the accident.
After a Defendant is notified of a claim they have a period of time to investigate the allegations and then respond confirming their position on this issue. They can respond in one of three ways:
- They could admit that they are fully at fault for the accident
- They could deny that they are at fault for the accident
- They could admit that they are partially at fault for the accident but also allege that the Claimant is also partly to blame – these allegations are known as allegations of contributory negligence.
Why does a defendant allege contributory negligence in personal injury cases?
In cases where contributory negligence is alleged, the Defendant will propose a split in liability. This is usually expressed in percentage terms; for example if they allege that both parties are equally to blame they will accept 50% liability. Alternatively, in cases where the Defendant is largely to blame but not completely they could accept 75% or 80% of the liability. A split can be proposed in favour of either party so it would also be possible to have a case where the Claimant bears more of the responsibility than the Defendant.
Allegations like this can arise out of many different situations; even when the circumstances of an accident appear straight forward contributory negligence could still be an issue if the Defendants feel that the Claimant has failed to take sufficient care for their own safety and this has contributed to the accident.
Examples of Contributory Negligence
When a pedestrian is hit by a car when crossing the road. Although, on the face of it, it would appear the driver is to blame for not seeing the pedestrian in the road a Defendant could argue that the pedestrian is partly to blame for not looking properly before stepping out or choosing to cross in an unsafe place.
Other potential situations which could prompt allegations of contributory negligence are if the Claimant was under the influence of alcohol at the time of the accident or, in some cases, where the Claimant was rushing or wearing inappropriate footwear.
How does contributory negligence effect your compensation amount?
In cases where contributory negligence is successfully argued, the compensation a Claimant is awarded is reduced by the same degree that they are found to be at fault. So if a Claimant is found to be 40% at fault, their compensation is reduced by 40% to reflect this.
If any allegations of contributory are made, the Defendant will have to provide evidence to support them. This evidence would then be reviewed and assessed by a Claimant’s solicitor who can advise them on whether the proposed split is reasonable or whether a more favourable split should be put forward. If the parties are unable to resolve the issue between themselves, it would ultimately by down to a Judge at Court to review the evidence and decide what (if any) split in liability is appropriate.
Given the potential impact that a successful argument of contributory negligence could have on an injured party’s compensation, it is crucial that a Claimant seeks advice from a specialist personal injury solicitor who can advise them on the issues and make sure that an appropriate split is agreed.