Sharing the blame in personal injury claims: examples of contributory negligence

NSW personal injury laws state that if one person is injured by the negligence of another, then they may be able to claim compensation for the harm they’ve suffered.

However, the amount of compensation may be reduced if the injuries were caused in some part by their carelessness – what is known as ‘contributory negligence’. The percentage amount of reduction is calculated according to the level of culpability of the injured person.

A shared duty of care

Personal injury claims depend upon the concept of negligence – that one person owes a duty of care to another person and that there has been a breach of that duty. Equally, the injured party must be shown to have taken all reasonable precautions to avoid getting hurt in the first place.

Three recent personal injury claims involving car accidents illustrate how contributory negligence can reduce the final compensation amount.

Pedestrian failed to look out for own safety

In the first case, a pedestrian was hit by a taxi and suffered serious injuries while crossing a road in Sydney.

The Court found that the taxi driver was at fault and should have used an appropriate amount of care while turning into a busy road. He knew the road was busy and that a pedestrian crossing was nearby. If the taxi driver was sufficiently vigilant while turning, he would have seen the pedestrian and the accident would not have occurred.

However, the Court found that the pedestrian was also at fault and should have been more careful when crossing. He crossed when it was not safe to do so, didn’t watch out for oncoming traffic, and didn’t use the nearby designated pedestrian crossing.

The final personal injury compensation amount was reduced by 40 per cent due to the pedestrian’s contributory negligence.

Motorists equally at fault

In another recent case, two drivers were involved in an accident early one morning on a quiet rural road. A milk truck attempted to overtake a stationary ute just as the other vehicle tried to turn right into a driveway on the other side of the road. The vehicles collided and both drivers were injured.

In an unusual judgment, both drivers were found to have been responsible for the accident, and they contributed to their injuries equally. Personal injury compensation for the two drivers was reduced by 50 per cent due to contributory negligence.

Skateboarder not blameless

In a third case, a 27-year-old skateboarder was struck and seriously injured when a car unexpectedly made a U-turn in front of him without indicating. The man suffered severe injuries to his wrist and kneecaps, which led him to lose both his job and home.

While the driver was clearly at fault, the District Court found that the skateboarder had also contributed to his injuries by skateboarding at night under the influence of alcohol. Damages were reduced by 20 per cent due to contributory negligence.

Seek advice from a personal injury lawyer

If you’ve been hurt in an accident and need to make a personal injury claim, then you should speak to an experienced personal injury lawyer as soon as possible. They have the skills and understanding to help you successfully navigate the often complex process of making a claim and get you the maximum compensation you’re entitled to.

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