What is 'contributory negligence'?

It is not always obvious who is responsible for an accident. It may be that you, as an injured employee, were partly responsible for your injuries.

Contributory negligence describes a situation where an injured person contributed to either the cause of their accident or the seriousness of their injuries.

If you have been injured in an accident that was partly your fault, a compensation claim may still be possible on the basis of 'contributory negligence'.

When does contributory negligence apply?

An example of contributory negligence is when a driver, or passenger, is involved in an road accident and is injured while not wearing a seatbelt.

In this example, the failure to wear a seatbelt might result in a more serious injury than would have otherwise been sustained.

Even if the accident was not the driver's fault, his negligence may have contributed to the severity of his injuries.

Compensation is usually reduced

On the basis of contributory negligence, the compensation amount would be reduced to a level amount that would have been awarded for a more minor injury - assuming a seatbelt had been worn.

Contributory negligence could also apply if an accident was the fault of both parties.

If, for example, there was equal blame on both sides, the injured person might receive 50% of the compensation he would have received if he had not been partly at fault.

What if I wasn't using PPE?

As an employee, you are expected to take reasonable care for your own safety at work. You should follow the health and safety instructions provided by your employer. This includes using any Personal Protective Equipment (PPE) provided by your employer.

If you failed to co-operate with your employer's health and safety policy, you could be found to be partly responsible for your injuries.

For example...

If you were injured in a ladder accident that was your employer's fault and you had not been provided with the correct PPE (and training in its use), your employer would be considered fully liable.

However, if you had been provided with PPE but chose not to wear it, and the medical evidence suggests this resulted in more serious injuries, the employer may offer a defence of contributory negligence.

This defence is arguing that, while the employer should have to pay some compensation, the amount should reflect the lesser injury that would have occurred if the supplied PPE had been worn.

If the court accepts the defence, the court will apportion blame between the employer and the employee based on the part that each of them played in the injury.

The court may decide that the employer was 80 per cent responsible for the injury, and the employee contributed by 20 per cent. In this case, 20 per cent would be deducted from the claimant's compensation award.

How do the courts apportion blame?

While every case is different, the courts have been reluctant to apportion a high degree of blame to employees.

Health and safety legislation is designed to protect workers from their own misjudgement, inattentiveness and carelessness.

Imposing too high a standard of care on employees might undermine the effectiveness of the legislation, particularly in industries where it is simple for an error to be made, and for a small lapse to have very serious consequences.

Under The Law Reform (Contributory Negligence) Act 1945, judges must reduce an injured claimant's damages "to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage."

Factors such as your age, experience and credentials may be taken into account, as well as your specific conduct.

Does contributory negligence have to be decided by the Courts?

No. Most claims do not go to court. 95% of claims are negotiated between solicitors and the employer's insurer.

If both parties agree that there was blame on both sides, the percentage of blame can be agreed in an out-of-court settlement.

The settlement would take the form of a "split liability agreement" and you would receive the apportioned level of compensation.

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?

Read more: Work accident claim guide