Contributory Negligence in Personal Injury Cases.

The first stage of any personal injury claim involves proving that the person or company against whom the claim is being brought, (‘the defendant’) was responsible for the injuries sustained by the person bringing the claim (‘the claimant’). In some cases, a defendant will admit that they were primarily responsible for the injuries, but will argue that the claimant was also partly to blame for their injuries.

When a defendant raises the argument of contributory negligence, they are alleging that there should be a reduction in the claimant’s compensation to reflect that they were partly at fault. An allegation by a defendant of contributory negligence does not prevent a claimant from pursing a personal injury claim, and it does not mean that a reduction will automatically be made. The burden is on the defendant to prove contributory negligence.

If the parties cannot agree on the appropriate reduction, the court will review all of the available evidence and decide if a reduction is appropriate. The reduction will depend on the particular circumstances of the case and will be in line with what the court decides to be just and equitable. The court will consider whether a claimant failed to take reasonable care for their own safety and whether this contributed to their injuries. The factors that the court will take into account include the age, experience and capacity of the claimant.

In road traffic arguments, allegations of contributory negligence will be raised if the claimant was not wearing a seatbelt at the time of the accident. If it is proved that the claimant’s injuries would have been avoided completely if they had been wearing a seatbelt, there will be a 25% reduction to their compensation. In a situation where the claimant’s injuries would have been less severe if they had been wearing a seatbelt, there will be a reduction of 15%. If it is proved that the claimant wearing a seatbelt would have made no difference to the injuries they sustained, there will be no reduction to their compensation. Arguments of contributory negligence can also be made if a claimant agrees to be a passenger in a vehicle in a situation that they know is not safe.

In the recent case of Owens v Lewis [2024] P.I.Q.E. P11, the claimant, who was 16 years old, had been a passenger on a quad bike driven by the defendant who was 15 years old. The claimant came off the bike and sustained a traumatic brain injury. The defendant admitted liability as he had allowed the passengers to travel on the quad bike when it was not intended to carry passengers, and the defendant drove at excessive speed. However, the defendant argued that the claimant ought to be 65% responsible as he agreed to be carried on the quadbike, and he positioned himself in a way that made him vulnerable to coming off the quad bike. The court held that a reduction of 30% for contributory negligence was appropriate. The court stated that although the claimant was older than the defendant, the defendant was much more familiar with quad bikes and the defendant had provided the source of danger.

For work related accidents, the defence of contributory negligence is often raised if, for example, the claimant was not wearing sufficient personal protective equipment at the time of the accident, such as a helmet, that they had been provided with and told to wear such equipment. The experience of the claimant will be particularly relevant. The court is more likely to make findings of contributory negligence where the claimant was a very skilled employee and they took obvious risks associated with their role, particularly if these are set out by the defendant in a risk assessment, and the claimant has been provided with the relevant training.

Contributory negligence can also be raised in public liability cases where, for example, the claimant trips on a public owned road. The defendant could argue that the claimant was not taking reasonable care and that they should have noticed the defect in question earlier, which could have led to the claimant sustaining less serious injuries.

If you have any questions about the defence of contributory negligence in personal injury cases, please contact a member of our Personal Injury Team.