Even when a claim is successful, a claimant can be found partially to blame for his or her own injuries and this is known by lawyers as ‘contributory negligence’. If the Court makes a finding of contributory negligence, it will make a percentage deduction in the amount the Defendant is ordered to pay according to what the Court feels is just. In some cases, this can be a substantial proportion of the claimant’s damages.
So, when can a defendant successfully argue contributory negligence?
The Defendant has the burden of proving contributory negligence and must prove:
When considering this, the Court will take into account the ‘blameworthiness’ of each party and the degree to which each party caused the injury.
Contributory negligence can be a complex issue, but a simple illustration of this is in cases involving a road traffic collision in which the claimant has failed to wear a seatbelt:
If the Claimant would have not suffered injury at all if he or she had worn a seatbelt, the Court will deduct 25% for contributory negligence. If the injury would have been reduced but the claimant would have still suffered some injury as a result of the accident, the deduction would be 15%. If the claimant not wearing a seatbelt would have made no difference at all, no deduction for contributory negligence will be made.
In this example, the Defendant still has to bear the lion’s share of the blame for the accident. Motor vehicles are dangerous machines which, when driven negligently, can kill. It is not always the case but, most of the time, a negligent driver of a motor vehicle will be found mostly to blame (if not entirely to blame) for an accident because whether someone is slightly injured, seriously injured or killed is down to chance. However, if the Claimant would not have suffered such serious injury or any injury at all if it had they been wearing a seatbelt, they should bear some of the responsibility.
Whether wearing a seatbelt would have made any difference to the Claimant’s injuries is usually a matter for medical expert evidence and sometimes, in more serious cases, specialist expert evidence such as accident reconstruction evidence.
Contributory negligence applies to all areas of personal injury law, not just road traffic collisions. This includes public liability claims, employers’ liability claims and even industrial disease claims such as asbestosis and Hand Arm Vibration Syndrome.
Defendants can argue contributory negligence even if they admit fault in full initially. During court proceedings, contributory negligence is pleaded by defendants in most cases (whether there are reasonable grounds or not), particularly in larger value cases because a reduction for contributory negligence can result in a substantial saving for them. This is something that must be considered at the outset of each case and kept under consideration throughout when gathering evidence and advising client.
Unfortunately, we see many instances where lawyers at other firms treat the issue as secondary and do not give sufficient attention to the issue, potentially costing their client a substantial deduction from their damages and leaving them disappointed with the outcome.
If you have had an accident, it is vital that you get the right legal advice from the outset. At Wards Solicitors, our Accident and Injury team can help. For a free initial meeting and advice, contact Associate Solicitor Richard Green on 01275 858515 or email@example.com, or get in touch with one of our Accident and Injury team solicitors.