Understanding Contributory Negligence in Personal Injury Cases

During National Road Victim Month, we remember those who have lost their lives or suffered serious injuries on our roads. Since 1998, the road traffic accident charity RoadPeace has commemorated this month, choosing August due to its historically high number of road fatalities, which surpasses even the colder, icy winter months.

When an accident happens often a defendant will admit liability but argue that the claimant or injured person is partly at fault because they contributed to the accident in some way.

For example where a driver causes an accident but the passenger was not wearing a seatbelt liability may be split on a 85/15 basis if it is found that the injuries could have been reduced had the seatbelt been worn.

At Hodge Jones & Allen we have dealt with a significant number of cases where defendants have sought to argue that the injured person is partly at fault for the accident. These are some of the factors that have to be considered when this is argued in order to minimise any contribution by the injured party to limit the reduction in damages.

Examples of Contributory Negligence

Children

The Court will rarely find children particularly young children negligent. Under the Occupiers Liability Act 1957 occupiers ‘must be prepared for children to be less careful than adults’

The general test applied is whether the child has acted in a manner below the standard of a prudent and reasonable child of their age.

We often act on behalf of child claimants who have been injured at leisure venues and the owners attempt to argue that they provided adequate safety advice but our investigations have indicated that the advice has not been age-appropriate for children and has not considered the above legal test.

Pedestrians

Often defendants will argue that a pedestrian has been partly at fault due to lack of attention or failing to check it was safe before stepping into the road.

Courts take the view that as a vehicle is a weapon and can do more damage, therefore the apportionment tends to favour pedestrians. We often act for pedestrians and will endeavour to obtain all relevant evidence such as CCTV footage and photographs of the accident scene alongside witness evidence and consider the facts fully to assess whether there is any fault on the part of the pedestrian.

Alcohol and drugs

On the face of it may seem obvious not to get in a vehicle when the driver is under the influence of alcohol or other substances but there are instances where this may not be the case, for example the driver may not be obviously intoxicated and the injured person may not have known what the driver had been doing.

In these cases it is important to establish the full circumstances and we will always investigate this thoroughly and not automatically assume that an injured person knowingly took a risk.

Seatbelts

Although it is a legal requirement to wear a seatbelt it is important to assess whether this would not have made a difference to the injuries sustained before considering whether to accept a split liability offer.

Helmets

Whilst it is recommended that cyclists and motorcyclists should always wear a helmet to limit injuries, not all injuries can be prevented even if a helmet was worn therefore we always consider medical evidence very carefully to consider whether the absence of wearing a cycle helmet would have actually made a material difference to the injuries.

Accidents at work

Workplaces are governed by lots of regulations regarding safe practices, usually where employees are exposure to hazardous substances, using equipment safely.

We have represented a large number of claimants who have been injured at work and where the employers attempt to argue that the employee was partly to blame for their injuries usually for failing to follow training or guidance. Often after careful investigation it will become apparent that the employer has failed to provide sufficient training and not taken all possible steps to prevent the injury and therefore the injured person has been found not to have contributed to the accident.

Accidents in public places

Often owners of public and private buildings (legally known as occupiers) will argue that accidents were beyond their control and they had taken reasonable steps to prevent injury.

In the cases we have dealt with a review of documentation such as risk assessments, health and safety policies and signage has been found to be inadequate and do not provide sufficient warnings of hazards and have failed to keep visitors safe.

In all types of cases we will always seek full disclosure of documents and consider all the relevant facts in detail to provide comprehensive advice to our client’s about whether we can challenge allegations for a reduction in damages either entirely or whether we can negotiate a fair and appropriate percentage that reflects the circumstances.

Speak to a member of our Personal Injury team who can point you in the right direction. Call now on 0330 822 3451 or request a call back.