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What is contributory negligence?
Contributory negligence is an issue which can arise in many personal injury cases. It is sometimes called partial fault. The concept is based on a Claimant being partly responsible for the damage and essentially it means that the injured party’s compensation may be reduced if they are found to be partly to blame for the accident itself or to have contributed to the severity of their injuries in some way.
As a personal injury solicitor specialising in serious injuries and accident and injuries at work claims, I sometimes have to advise my clients on this issue and it can be difficult at the start of a case to advise whether that person’s actions may be subject to a finding of contributory negligence.
What is the law surrounding contributory negligence?
The starting point is Section 1 of the Law Reform (Contributory Negligence) Act 1945 which provides for apportionment of responsibility for loss between a personal injury claimant and defendant if both have contributed to the damage – and when it is proved that the claimant’s own negligence contributed to the damage or loss, a defendant is often required to pay a significantly-reduced sum in compensation.
Therefore, in road traffic accidents for example, failure to wear a seatbelt may result in a judge finding that the injured person was up to 25% to blame for the injuries they sustained, essentially saying their injuries would have been approximately 25% less severe had they worn a seatbelt, and their compensation award is therefore reduced accordingly.
Contributory negligence defences are common in personal injury claims. Although their success in individual cases is not always easy to predict, they are especially common in road traffic accidents and, to a lesser extent, accidents at work – and the degree to which a claimant’s negligence is deemed to have contributed to a loss can have a big impact on the compensation award received by the injured party.
What is the test that is applied to determine contributory negligence?
The test of whether a Claimant was contributory negligent is objective. The court will consider what should be expected of a person who is taking reasonable care for his/her safety. In accident at work claims, the Court will consider whether the employee acted reasonably in taking the risk (AC Billings -v- Riden). The Court will also look at the age and experience of the employee as to what standard should be applied to them. For example, in general, less is expected of a young and newly qualified employee than of one who has many years of experience. However, regardless of age, if the employee shows a reckless disregard for their safety and their employer’s practices and procedures, it is far more likely that there will be a finding of contributory negligence.
In addition, a statutory duty is also placed on the employee to use equipment in accordance with their training and to report to their employers concerns about health and safety at work.
A good example in an accident at work case is where an employee has failed to wear safety equipment. An accident occurs for other reasons, but the failure to wear safety equipment contributes to the injury, not the accident. If this claim is upheld by the court, the employer can suggest that any compensation awarded to the complainant should be reduced by an amount that represents the portion of the blame assumed by the employee. If a claimant is found to have contributed by 20 per cent, that same 20 per cent will be deducted from the compensation received.
Contributory negligence can be a difficult issue in employer’s liability cases and it is therefore sensible to check carefully as to what training clients have received; what precautions were taken in the workplace and what documentary evidence is available before advising whether they are likely to be subject to such a finding.
In the case of Casson .v. Spotmix Ltd the claimant’s compensation was reduced by 10 per cent, a judgement against which he successfully appealed. While at work, Mr Casson was cleaning a metal surface near moving parts when his glove was caught between rollers causing his hand to become trapped in a piece of machinery. Although Mr Casson’s employer was found to be in breach of duty for failing to provide adequate training for him, the judge concluded he should also bear some responsibility for causing the accident by moving his hand too close to the machinery.
However, responsibility for a breach of duty lies with the employer, whether the employee has been careless or not, and actions cited as contributory negligence by an employer are often more accurately the result of inattention or oversight and as such do not result in reduced compensation.
Under the law, momentary inadvertence does not amount to contributory negligence, and accordingly Mr Casson’s appeal was successful on the grounds that it is possible for an injured worker to have been careless without being responsible for the accident.
When assessing contributory negligence, it is essential to consider all the facts in detail and accurately assessing the likely apportionment is challenging for all parties concerned including judges, as the instances of successful appeals would suggest.
Aston Knight Solicitors, Bury, are a specialist firm of solicitors that specialise in serious injuries including medical negligence claims and work injury compensation. If you would like to discuss further please contact a member of our team on 0800 999 6661 or email email@example.com for a free and confidential discussion.
By Emma Pearce, Solicitor