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A family cycling but with the Father missing. The Mother is not wearing a cycling helmet, suggesting contributory negligence of the Father

When an accident occurs, it’s a common misconception that one person (or party) is to blame for the accident and damage (including injury), and the other person is entirely innocent of blame.

However, this is not always true and it is often the case that blame is split between both parties. This is referred to as contributory negligence.

Contributory negligence and the claims process

When bringing a claim for injury following an accident, it is necessary to prove liability, ie proving that one party (the defendant) is to blame for the accident and resulting injuries. The claimant (the injured party bringing a claim) must notify the defendant of details of their claim and allow them a period of time to investigate the allegations and to respond confirming their position. Their response may be:

  • An admission that they are fully at fault for the accident;
  • A denial, that they are not at fault for the accident;
  • An admission that they are partially at fault for the accident, but an allegation that the claimant is also partly at fault, known as an allegation of contributory negligence.

How does an allegation of contribution negligence affect a claim?

If an allegation of contributory negligence is made, the defendants will propose a percentage of blame to be attributed to the claimant, or in simple terms, how much they are to blame for either the accident or the damage and injuries sustained. Evidence needs to be provided by the defendant to support the allegations, which will be reviewed by the claimant’s legal team. They will then advise whether they think the proposed split is fair and acceptable or may propose a more favourable split. If the two parties cannot agree the split, a Court will review the evidence and decide what split in liability is appropriate.

Once agreed or directed by the Court, the claimant’s award is reduced by the agreed percentage. By way of example, if it is accepted that the claimant and defendant are equally to blame for the accident, contributory negligence would be agreed at 50% and the claimant would receive 50% of the damages that they would have been entitled to, had their injuries been entirely the fault of the defendant.

Examples of contributory negligence

One of the most common scenarios where contributory negligence is argued are road traffic accidents. However contributory negligence may occur in any type of accident.

  • A pedestrian was hit by a car whilst crossing the road. The defendants put forward an allegation of contributory negligence as the pedestrian failed to check the road was clear properly before stepping out into the road.
  • A car driver was injured in an accident caused by a third party and suffered a head injury. At the time of the accident, he was not wearing a seat belt. Had the driver been wearing a seat belt, it is likely that his injuries would have been avoided or less severe. Contributory negligence at 25% was accepted and the claim settled, with the claimant receiving 25% less in damages than he would have, had he been wearing a seat belt.
  • A woman who was cycling very slowly and not wearing a cycle helmet was hit by an opening van door and knocked from her bike. It was accepted that had she been wearing a cycle helmet at the time of the incident, her injuries may have been less severe, and she was therefore forced to accept a reduced award on the grounds of contributory negligence.
  • A roofer accepted 50% contributory negligence when he fell from a roof, sustaining an injury. The correct equipment was not provided, but as a self-employed roofer, it was accepted that he should have provided his own equipment.

How Brain Injury Group can assist

If you have suffered an injury in an accident where you believe you may be partly at fault, you should still contact a solicitor to discuss the circumstances of the accident to see if you are able to bring a claim for damages. Brain injuries can be life-changing, and even with an element of contributory negligence, the damages you may receive could provide access to rehabilitation and secure your future care needs.

Members of Brain Injury Group are available for a free, no-obligation chat about your accident. To become a member of Brain Injury Group, law firms need to meet our strict joining criteria which ensures all members have the right experience to deal with brain injury claims of all severities and a service which includes not only obtaining financial settlement but also access to rehabilitation, care and support to help rebuild lives.

To find your nearest Brain Injury Group specialist solicitor, visit www.braininjurygroup.co.uk/find-brain-injury-solicitor/

With thanks to…

This article was produced in association with Tim Jones, Legal Director at member law firm Enable Law. Based in Taunton, Somerset, Tim assists clients across the South West who have suffered brain, spinal and serious orthopaedic injuries as a result of accidents. He is also able to assist those bringing claims against the Criminal Injuries Compensation Authority.

Enable Law is a specialist medical law and personal injury practice with offices across the South West, South Coast and London.

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