Contributory Negligence

Can you still claim compensation if you were partly at fault in a personal injury claim?

When it comes to an accident or injury, it’s not always just one person’s fault. You could be injured in a car accident that isn’t your fault, but your injury is compounded because you weren’t wearing a seatbelt. Or you can injure yourself in a fall at work, but contribute to it by failing to wear the required safety equipment. Maybe you’ve slipped and fallen after having a few drinks on the weekend.

In situations like these, another person or organisation might primarily be at fault. But Australian law recognises that responsibility for the accident isn’t always clear-cut. And where an injured person is partly responsible for their own loss, a court may reduce the amount of compensation they receive. This legal principle is known as contributory negligence.

What is contributory negligence

Contributory negligence is often used as a whole or partial defence to the tort of negligence. (A tort just means a civil wrong that causes someone harm, and it includes negligence.) 

Essentially, one person makes a claim of negligence because another person or an entity has a duty of care to them, and they’ve breached that duty of care. As a result, the person has suffered harm or injury. 

If they can show that the person who was injured somehow contributed to that injury, then the person or organisation that is being sued for negligence can raise the defence of contributory negligence. If the court accepts that defence, then any award given to the injured person can be reduced.

Contributory negligence test  

So how does a court decide whether an injured person contributed to their own injury?

Across Australia, contributory negligence is governed by state and territory legislation, although the exact wording varies between jurisdictions. In general, the court will ask whether the injured person took reasonable care for their own safety in the circumstances, and with the knowledge they had or ought to have had at the time. 

Because this is assessed using the standard of a ‘reasonable’ person, the court will look at what this imaginary person would have done if they had the same knowledge and were in the same situation as the injured person. 

If the court finds that the injured person failed to take reasonable care for their own safety and that failure contributed to the injury, they may be found to have been contributorily negligent.

Practical examples of contributory negligence

Contributory negligence can arise in many different situations. Some common examples include:

• A person injured in a car accident who was not wearing a seat belt.
• A person whose intoxication contributed to the injuries they sustained.
• A worker who is injured after failing to wear proper safety equipment or follow workplace safety procedures.
• A cyclist who fails to wear a helmet and suffers a head injury. 
• A pedestrian who ignores obvious risks and is injured as a result.

In each case, the court will consider whether the injured person took reasonable care for their own safety and whether their conduct contributed to the injury they suffered.

Who has to prove contributory negligence? 

Of course, simply alleging that an injured person contributed to their own injury is not enough. The court must also be satisfied that contributory negligence occurred. And someone has to prove that. 

In this situation, it’s the defendant who bears the burden of proving contributory negligence. Like most civil claims, this has to be proven on the ‘balance of probabilities’. In other words, the person or organisation being sued must show it’s more than likely that the injured person failed to abide by a standard of care that a reasonable person would have exercised in the same situation. 

Simply alleging that someone was partly responsible for their own injury is not enough. The court must be satisfied that the person’s conduct actually contributed to the harm that occurred. 

How does contributory negligence affect compensation?

A finding of contributory negligence doesn’t necessarily prevent an injured person from receiving compensation. Instead, it usually reduces the amount of damages they can recover. 

Generally, the reduction is based on the extent to which the injured person’s own conduct contributed to the injury. For example, if a court finds a person was 20% responsible for their injuries, their compensation may be reduced by 20%.

In some cases, a court may find that the injured person’s conduct was entirely responsible for the loss or injury. Depending on the circumstances and the state or territory legislation that applies, this could result in no damages being awarded at all. 

Each Australian state and territory has legislation governing contributory negligence and the assessment of damages. While the details vary between jurisdictions, the underlying principle is the same: compensation should reflect each party’s share of responsibility for what occurred.

Special situations in contributory negligence law

Not every contributory negligence case is assessed in exactly the same way. The law recognises that some situations require special consideration, particularly when the injured person is a child or where intoxication or criminal activity played a role in the events leading to the injury.

Children and contributory negligence

All persons apart from children under the age of five can be found to be contributorily negligent in Australia, but for children different standards apply. 

When assessing a child’s conduct, the court doesn’t compare them to a reasonable adult. Instead, it considers what another reasonable child of the same age and life experience would have been expected to do in the same circumstances.

This principle was established by the High Court in McHale v Watson. The case involved a twelve-year-old boy who injured another child after throwing a sharpened metal rod. The Court found that the boy could not be judged by the standard expected of an adult and that a child of his age would not necessarily have appreciated the risk of serious injury.

Intoxication and contributory negligence

Some Australian jurisdictions have specific legislative provisions dealing with intoxication and criminal conduct. For example, under the Civil Liability Act 2003 (Qld), a court must generally reduce damages by at least 25% where an injured person was intoxicated at the time of the incident, and the intoxication contributed to the injury.  

Criminal activity and contributory negligence

Courts may also reduce or refuse damages where a person is injured while engaging in criminal activity. Depending on the circumstances, legislation may allow a court to deny compensation altogether, although courts generally retain discretion to award damages where refusing compensation would be unjust.

These provisions reflect a broader principle of contributory negligence – people are expected to take reasonable responsibility for their own safety and conduct.

Being partly at fault doesn’t end your claim

Many people assume that if they contributed to an accident or injury, then they automatically lose the right to claim compensation. In reality, contributory negligence is just about apportioning out responsibility rather than denying compensation altogether. 

Even if you’re the person who failed to wear a seatbelt, ignored safety procedures or contributed to their injury in some other way, the court will look at the circumstances of the case and determine each party’s share of the responsibility. In many cases, an injured person can still recover damages, although the amount awarded may be reduced to reflect their contribution to the harm. 

Because contributory negligence can have a significant impact on the outcome of a negligence claim, it is important to obtain legal advice about how the law applies to your particular circumstances. Our litigation lawyers can advise you on your rights, assess the strength of your claim or defence and help you understand how contributory negligence may affect any compensation awarded.