Contributory Negligence

Contributory Negligence

Contributory Negligence

Find out what contributory negligence means, what effect it can have on compensation and some common examples of negligence.

Suppose a plaintiff has an accident but has not taken the standard of care that a reasonable person would have in the same circumstance. In that case, both the plaintiff and the defendant share responsibility for any personal injury or harm caused as a result. This is the essence of being contributorily negligent. Let’s take a closer look.

What is Contributory Negligence?

When a plaintiff does not exercise reasonable care for their safety, it is contributory negligence. A plaintiff is the injured person who makes a case against another party. The injured party will share responsibility for the accident that led to their injury. If their actions increase the likelihood of an accident, their negligence can impede recovery and reduce the amount of compensation they may receive. There could be a reduction or denial of payment if the court deemed that their behaviour caused the damage. The court will evaluate the degree of fault between both parties.

The defendant will often use contributory negligence as their key defence argument. It is the responsibility of the plaintiff to prove that the defendant was at fault. If they can prove that they acted or failed to act in a certain way, which resulted in causing harm to the plaintiff, they can be found negligent.

Understanding Contributory Negligence

In the case of a contributory negligence accident, determining fault is a critical aspect. For example, as an insurance policyholder, you may make a claim to seek compensation for a loss or event covered in your policy. Insurers and the law courts will review the actions that led to the accident and then determine how to assign fault. Which will result in calculating how much the insurer must pay as a result of the insurance claim. In some cases, they may be found blameless, or if they are found to have contributed to the damage, their actions would be considered negligent. The court will decide how much damage was caused by the policyholder’s behaviour, and the judge will adjust their compensation accordingly.

An employer is responsible for providing a safe work environment; they have a duty of care. Likewise, an employee needs to exercise a reasonable level of care for their personal safety to avoid contributing to their harm or injury.

In some states in America, if a plaintiff pleads contributory negligence as a legal defence in their case, it will bar them from receiving any financial compensation. In Australian law, however, if a plaintiff is found to be contributorily negligent, the court will reduce the amount they receive by the same percentage as their negligence. For example, if they were 50% at fault, their compensation is reduced by the same rate.

If you have had an accident, you should get legal advice from lawyers who specialise in civil law, as they have local knowledge and understanding of your state’s specific contributory negligence law.

The Term "Reasonable"

Within the law of negligence, the term “reasonable” appears frequently. Whether an individual has failed to take “reasonable care” or there may be reference to a “reasonable person”. A reasonable person’s characteristics could include law abiding, rational, consistent, and fair, i.e. someone approaching a situation with appropriate caution and taking practical action. Reasonable care is when someone considers their safety and the safety of others in the same manner that an ordinary and rational person would. It is a minimum standard of behaviour and conduct.

When determining liability or fault, the courts must remain consistent with equal standards applied to all plaintiffs to remain objective.

Tort Of Negligence

Torts are the legal term for a civil wrong that one party has done to another, and it can cause loss or harm. And be committed by an individual, corporate entity or public authority. A claimant in a dispute may sue for damages.

Civil law relates to matters within the community, as opposed to military, criminal or religious affairs. 

One example of a common tort is negligence, where an individual suffers harm due to another person’s failure to take proper care. When an individual gets sued for negligence, a defendant may use contributory negligence as a full or partial defence. If the court is satisfied that the plaintiff was negligent, it can reduce the defendant’s liability for the harm or injuries suffered.

There are two other common torts; defamation and nuisance.

Defamation is when you damage someone’s reputation by publication of untruthful or disparaging statements.

Nuisance is when an individual causes substantial interference to another person’s property where they reside. Or a public nuisance where something interferes with the common rights of the public, public nuisance can also be a criminal offence.

Burden Of Proof

In some jurisdictions, a successful contributory negligence defence can only succeed if the defendant can prove the negligence. They need to show that the plaintiff did not take the standard of care that a reasonable person would have taken under the same circumstances. But, if the plaintiff was negligent, and the defendant was the last party with an opportunity to take action which may have avoided or prevented the injury from occurring, the defendant may still be held liable.

The test for contributory negligence is whether the injured person can be proven to have breached the appropriate standard of care.

Full Or Partial Defence?

A partial contributory negligence defence is when both the plaintiff and the defendant are negligent. But, if the plaintiff is wholly responsible, then the defendant will be excused of any blame or liability.

One example of contributory negligence as a full legal defence argument is; if an individual walks onto a road without looking and a car hits them. The vehicle was driving within the speed limit in a safe and compliant manner. In this case, the plaintiff’s contributory negligence is 100%, as it was entirely their fault.

As a partial legal defence, an example of contributory negligence is; if an individual walks onto a road without looking and a speeding car hits them. In this case, both parties are partially responsible and at fault. On this occasion, the court will decide to what extent the plaintiff is responsible for their injuries.

A contributory negligence claim could not be used as a defence if the defendant’s actions were malicious or intentional instead of ordinary negligence.

Examples Of Contributory Negligence

In each of the following examples, the plaintiff is at fault. Their actions or lack thereof have contributed to an accident or injury. In these circumstances, defence lawyers could sue for contributory negligence.

  1. An individual sustained injuries from an accident when driving their car. They chose not to wear a seat belt and therefore failed to take appropriate steps for their safety.
  2. A plaintiff’s injuries occurred as a result of their intoxication. Drinking to excess was irresponsible and resulted in an injury that could have been avoided had they been sober.
  3. A worker was injured but did not wear protective clothing or adhere to safety procedures. They disregarded warnings and did not take due care for their safety.
  4. An employee who worked in an environment with asbestos claimed damages for lung cancer from his employer, but he smoked a packet of cigarettes a day for 20 years. The workers’ disregard for his health by smoking contributed to his cancer.

Contributory Negligence And Criminal Conduct

If a plaintiff has sustained an injury whilst engaging in criminal activity or conduct, the court has the discretion to withhold any compensation for damages. These legal claims are up to the discretion of the law court, and they will rule each case based on individual circumstances.

Contributory Negligence And Intoxication

In a court of law, specific rules govern intoxication and personal injury caused by contributory negligence. If a plaintiff is intoxicated at the time of their accident, their available compensation is reduced by 25%. Furthermore, if intoxication and a motor vehicle are involved, the courts can reduce the payment by 50%.

Comparative Vs Contributory Negligence

Contributory negligence can adversely affect the amount of compensation a plaintiff may receive. In contrast, comparative negligence will assign financial responsibility proportionate to the degree of fault or determined negligence for each party. Insurers are then able to assign blame for accidents and pay insurance claims accordingly. Comparative negligence is not used within Australia, the United States still uses a combination of the two.

Does Contributory Negligence Affect Liability

The common law governs civil liability in Australia. Each of the States and Territories have regulations that cover contributory negligence.

In NSW, for example, the percentage of liability or negligence found will affect the amount of compensation awarded to the plaintiff. For instance, contributory negligence of 30% means that 30% of the plaintiff’s injury or accident are due to their negligence. And 70% of the blame or responsibility remains with the defendant. If they were legally entitled to $100 000 in damages, a court would only award $70 000 to the plaintiff.

Each state and territory within Australia has individual legal provisions for how liability is assessed, and consequently, the legislation varies depending on jurisdictions. The Wrongs Act of each particular state and territory explains how contributory negligence is determined.

Children And Contributory Negligence

In Australia, children over the age of five years can be contributorily negligent. The assessment is based on the child’s level of understanding and state of knowledge. It is expected that they conform to the same standard that is appropriate for their age and experience. If a civil action claim is brought against a child, special procedures must be followed. Particularly considering the child’s capacity to foresee the consequences of their actions.

Summary

When a plaintiff does not exercise reasonable care for their safety, it is contributory negligence. If their actions increase the likelihood of an accident, their negligence can impede recovery and reduce the amount of compensation they may receive. The court will evaluate the degree of fault between both parties. Torts are the legal term for a civil wrong that one person has done to another. When a person gets sued for negligence, contributory negligence may be used as a full or partial defence. A defendant will often use contributory negligence as their key defence argument. If they can prove that the plaintiff acted or failed to act in a certain way, resulting in harm being caused, they can be found guilty.

Contributory negligence could not be used as a legal defence if the defendant’s action was malicious or intentional.

In Australian civil law, children over the age of five years can be contributorily negligent.

Exercising reasonable care for your safety can help reduce the chance of an accident and subsequent liability charges. If you have an accident, lawyers can provide practical legal advice.

FAQs

1. What Are Some Examples Of Contributory Negligence?

Answer: In each of the following examples, the plaintiff is at fault. Their actions or lack thereof have contributed to an accident or injury. In these circumstances, defence lawyers could sue for contributory negligence.

  • An individual sustained injuries from an accident when driving their car. They chose not to wear a seat belt and therefore failed to take appropriate steps for their safety.
  • A plaintiff’s injuries occurred as a result of their intoxication. Drinking to excess was irresponsible and resulted in an injury that could have been avoided had they been sober.
  • A worker was injured but did not wear protective clothing or adhere to safety procedures. They disregarded warnings and did not take due care for their safety.
  • An employee who worked in an environment with asbestos claimed damages for lung cancer from his employer, but he smoked a packet of cigarettes a day for 20 years. The workers’ disregard for his health by smoking contributed to his cancer.

2. What Is Negligence In Simple Words?

Answer: Negligence is when one person fails to do something or does not do something that causes another person an injury, damage or loss. Failing to use appropriate care or take into consideration the potential harm it may cause others. An individual who suffers loss or injury due to negligence may be able to sue for damages for compensation.

3. What Is Contributory Negligence In Tort?

Answer: A tort claim is a legal term for a civil wrong that one person has done to another. An example of a common tort is negligence. When a person gets sued for the tort of negligence, contributory negligence can be used as a full or partial defence. If the court is satisfied that the plaintiff was negligent, it can mean a reduction in the defendant’s liability for the harm or injuries suffered.

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