Can I claim for a work injury if it was partly my fault?

Updated: October 7, 2020

Work-related compensation claims differ from other types of personal injury claim in a number of ways. These differences can make it easier for injured employees to claim compensation - even if the claimant appears to be at fault.

How does a work injury claim differ?

To claim compensation for a personal injury:

  • Your injury must have happened in the last three years
  • Your injury was caused by the negligence of another party (person or company)
  • That party owed you a duty of care

In non-work situations, whether another party owed you a duty of care will depend on the situation. Whether that party was negligent will also depend on the facts of the individual case.

Work-related claims are different for two key reasons;

Duty of care

Duty of care is a key principle for injury claims. By law, all employers owe a duty of care to their employees to ensure their working conditions are as safe as is reasonably possible.

It’s much easier for a solicitor to prove that your employer owed you a duty of care.

Vicarious liability

In the context of a work injury claim, vicarious liability is a legal concept that means an employer is liable for a claimant’s work-related injury or illness, even if the employer wasn’t directly responsible for the injury.

Vicarious liability means that your employer is liable even if, for example, you were hurt because of another employee’s carelessness, or because your manager told you to do something dangerous. Under the principle of vicarious liability, you would still make a claim against your employer, not the individual.

This principle helps to ensure injured workers have access to compensation. By law, companies must have employers’ liability insurance, and this insurance will cover the cost of your compensation. If vicarious liability did not exist and you were forced to claim against an individual worker or manager instead, they may have difficulty paying your compensation, even if you won.

Find out how much you can claim:

Is my employer always liable?

If your accident happened at work, during work hours, or while you were working off-site, your employer will usually be liable for any injuries caused by that accident.

If you become ill due to your working conditions, your employer will also usually be liable.

Your employer will also usually be liable for an accident if you are injured while travelling during work hours, for example, if you are a delivery driver or a social worker driving between appointments. Your employer will not, however, be liable for any accident that occurs on the way to or from work.

If you are unsure as to whether you were “working” at the time of the accident, you should discuss your situation with a solicitor. In many cases, your employer will still be legally responsible.

Can I claim if I agreed to do something dangerous?

Yes. Even if you were asked to do something risky by a manager, and were warned of the risks, you can still claim compensation. Your manager may have breached your company’s health and safety protocols by making the request, but in any case, the principle of vicarious liability applies.

Can I claim if I signed a disclaimer in my employment contract?

Yes. By law, you cannot sign away or give up your fundamental right to claim injury compensation. No matter how a disclaimer, warning sign or employment contract is worded, your employer cannot take away your lawful right to make a claim.

What if I was partly to blame?

In most cases, yes.

Even if your accident was caused by a mistake you made, or due to carelessness or a lapse in judgement, you can usually still claim work injury compensation from your employer under the principle of vicarious liability.

If you developed a health condition due to some aspect of your work environment that you have control over, like a back injury caused by poor posture, your employer is still likely to be liable.

By law, employers must carry out regular health and safety assessments and must protect employees from foreseeable risks. Back injuries are an obvious risk affecting office workers who spend long periods at their desks.

In rare cases, your behaviour leading up to an accident may fall so far outside what is considered “working” that your employer may not be liable for your accident. If you are concerned your situation falls into this category, you should still consider discussing your case with a solicitor.

Contributory negligence

In some cases, your compensation may be reduced to reflect the degree to which you contributed to the seriousness of your injuries.

For example, if you were not wearing a hard hat on a building site and suffered a head injury due to falling debris, you could still make a claim against your employer. The compensation total you actually receive, however, could be reduced to reflect the extent to which your head injury was worsened by your decision not to wear a hard hat.

Whether the principle of contributory negligence applies will usually depend on the facts of the case. If you have any concerns, you should speak to a solicitor.

Have you been injured at work?

If you have been injured at work in the last 3 years, you may be able to claim financial compensation.

Find out more about making a work accident claim:

  • Do you qualify?
  • How much compensation could you get?
  • How does No Win, No Fee work?
Work accident claim guide