Contributory Negligence

Contributory Negligence

Negligence

Whenever someone pursues a claim for compensation in Queensland, they must prove there has been negligence or a breach of duty which has caused their personal injury. This is called ‘primary liability’.

Contributory Negligence

Contributory negligence occurs where an injured person proves primary liability but is said to have contributed to the cause of their accident and therefor their personal injury damages.

Throughout the course of a claim, insurance companies and their lawyers may argue that an injured person is in part or fully to blame for their injury.

Insurers (Defendant) must Prove Contributory Negligence

In Queensland, it is up to the insurer to prove that an injured person has contributed to the cause of their accident and therefor their injury and damages.

To account for the contribution that the injured person has made to their accident or injury, the insurer may argue that the compensation they receive should be reduced.

For example, if the insurer can prove that the injured person has contributed to their injuries in part, the compensation that the injured person may receive could be reduced by anywhere between 15-50%. The amount of compensation an injured person is entitled to is then reduced by that percentage.

When does Contributory Negligence Arise?

An injured person is found to have contributed to their injury if they fail to take reasonable care for their own safety.

In Queensland, there are sections of legislation which automatically reduce the liability of an insurer by attributing contributory negligence to an injured person in certain circumstances.

Intoxication

Section 48 of the Civil Liability Act 2003 (Qld) reduces the liability of an insurer by at least 25% where there is evidence that an injured person was intoxicated at the time they sustained their injuries.

Criminal Activities

Further, if the injuries were sustained while a person was engaging in criminal activities, a Court will not award compensation.

Other Examples

Specific examples of where the compensation awarded/paid may be reduced for contributory negligence if proven by the insurer include: 

• A person gets into a vehicle with someone who they know has been drinking alcohol (which affects their ability drive) and the passenger is injured due to the actions of the driver.
• A person was not wearing their seatbelt when they were injured in a motor vehicle accident, and the injuries were caused/made worse by the failure to wear a seatbelt.
• A person is riding their bicycle without a helmet, and they are struck by a car (being driven negligently) resulting in them sustaining head injuries, in circumstances where had they been wearing a helmet no head injury would have occurred.
• A person suffers an injury at work after failing to wear safety equipment they are directed and required to wear, by their employer.

Summary

It is always best to seek legal advice in relation to your personal injury and the circumstances in which your injuries/the accident occurred.

An experienced personal injury, compensation claims lawyers will know how to best pursue your case and manage complex issues of contributory negligence.