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If you have made or are considering making a personal injury claim you may have heard the term “contributory negligence” but what is it? And how might it affect a personal injury claim?

What is contributory negligence?

Contributory negligence is a partial defence that can be raised in a personal injury claim by a Defendant (the party alleged to have done the negligent act or omission). The Law Reform (Contributory Negligence) Act 1945 provides for the apportionment of loss where fault on the part of both the Claimant (the person bringing the claim) and the Defendant has contributed to the injuries sustained.

If, on the facts of a case, the Claimant is considered to have ‘contributed’ to their injuries, then a finding of contributory negligence will be made by the Court.

Below are some examples of when a contributory negligence finding may be made in personal injury claims:

  1. Not wearing a seatbelt when involved in a road traffic collision;
  2. Getting into a car with someone who is intoxicated (by alcohol or drugs) who then causes a road traffic collision;
  3. Not wearing suitable clothing and/or a helmet when riding a bike or motorcycle;
  4. Not wearing a hard hat when required to do so at work and then falling from height and sustaining a head or brain injury;
  5. Crossing the road as a pedestrian somewhere other than at a pedestrian or other crossing and then being involved in a road traffic collision.

This is not an exhaustive list and each scenario is determined on its facts. Whether and to what extent a finding of contributory negligence may be made can usually be determined by looking at decisions in previous similar cases.

It does not always follow that contributory negligence will be established if the Claimant has done or not done something they should have. It must be proved that the Claimant’s negligence either caused or contributed to the severity of their injuries. For example, if a passenger Claimant failed to wear a seatbelt but would have suffered serious injuries anyway, perhaps because a part of the car crumpled inwards and caused their injury, then a Court would not find they had contributed to their injuries because they would have suffered similar injury even if they had been wearing a seatbelt. In that situation, there would be no reduction in their compensation.

What does it mean in practice?

A Defendant can raise contributory negligence to reduce the extent to which they are held responsible for an act of negligence. That then leads to a reduction in the compensation they will pay.

If, for example, an injured party is found to have contributed to their injuries by 20%, the Defendant would only be held 80% liable and would therefore only have to pay 80% of the claim’s ultimate value. In practice, that means for every £1 awarded, the Claimant would receive 80 pence.

The impact on seriously injured clients

Having conversations about contributory negligence can sometimes be extremely difficult, particularly where a client has sustained significant injuries, or others have been injured in the same incident. It can sometimes be hard for people to accept they may have been partly at fault for what happened to them. When a finding of contributory negligence is made, it means a client will not recover all of the compensation they are deemed to need to pay for future therapy and/or care. There can then be financial consequences for their future because they will not have sufficient funds from the claim to meet their needs. There are ways in which statutory services can sometimes ‘top up’ the future support that may be required for such clients but this is not always guaranteed and is not something that can be relied upon indefinitely.

In these situations, it is important to liaise with specialists in public law and state funding in order to maximise entitlement to statutory services so there is less of an impact on the Claimant’s future.

Produced by Kelly Lingard, Solicitor at Irwin Mitchell Solicitors

Kelly Lingard is a Solicitor at Brain Injury Group member firm Irwin Mitchell, specialising in serious injury cases. She recently qualified having supported clients who have sustained serious injuries throughout her previous roles and training.

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