Contributory negligence
Contributory negligence is a commonly used piece of legal jargon, particularly in personal injury claims. In the context of an accident claim contributory negligence is the extent to which a claimant is personally responsible for the injuries they have sustained.
The legal thinking behind the concept of contributory negligence is that claimants are often able to avoid or reduce the severity of their injuries by taking more care of their own safety. The principle has therefore been established to reflect the fact that personal injury compensation should be reduced if a claimant has contributed to their injuries by their own actions.
The allegation of contributory negligence, if successfully argued, can have a significant impact on the value of a personal injury claim, reducing the amount of compensation considerably. Unfortunately the law on which we rely for guidance is often conflicting offering only a few rules of thumb.
A good example of how the contributory negligence principle takes effect in practice is the car seatbelt. If you are injured in a road traffic accident and have failed to wear a seatbelt then you run the risk of being found to have contributed to your injuries. The leading case on contributory negligence for failing to wear a seatbelt remains Froom v Butcher. This case, although decided in 1976, remains good law. It was decided on the premise that if Parliament required seat belts to be fitted in cars it must have thought they had a purpose. The case was ahead of its time as it was not until 1983 that Parliament caught up and made the wearing of front seat belts compulsory.
Unhelpfully, the Court did not advocate a set percentage reduction in the compensation to be awarded to a non-seatbelt wearing accident victim but it did give us our best guidance. So, if by wearing a seatbelt the injuries would have been avoided altogether the likely reduction in the award of compensation is 25%. If the wearing of a seatbelt would only have reduced the injury then the compensation is reduced by 15%.
These principles are frequently attacked by Defendants and their solicitors in personal injury claims and the percentages have varied. Nevertheless the principles remain a good staring point.
So, what does this actually mean for someone pursuing a personal injury claim who is confronted by an allegation of contributory negligence? Basically, if you accept a deduction of, say, 25% for contributory negligence you will then lose 25% of the total value of your injury claim. For example, if your personal injury claim is valued at £10,000 and contributory negligence was assessed or agreed at 25% (to reflect the fact that you were to some extent to blame for the accident) then your compensation would be reduced by 25% to £7,500.
Contributory negligence can therefore have a major impact on personal injury compensation and can eat into a claimant’s damages significantly so its something that needs careful consideration.
Another useful example of the application of the contributory negligence principle in practice is the use of a cycle helmet. Whilst some may feel the wearing of a helmet can only offer limited protection, it can in certain circumstances prevent serious injury. So, if you suffer a head injury and the use of a helmet would have prevented that injury then contributory negligence will be alleged and it is likely to be significant. However, a good personal injury solicitor should not assume that failure to wear a helmet will carry with it a finding of fault on the part of their client. If the extent of the injury is not affected by the use or otherwise of a helmet then no deduction should be made.
Whatever the situation, an experienced accident claims solicitor will take all relevant factors into consideration when advising a client of the impact of contributory negligence and endeavour to keep its effect on their compensation to a minimum.
