General issues about contributory negligence in PI cases
In many personal injury claims, though it’s clear that the accident was the fault of someone else – which means the claim should succeed – there can be arguments about whether you as the injured person should share some of the blame for the accident.
This is what is referred to as contributory negligence.
It is often possible to counter arguments for contributory negligence, meaning that your claim succeeds in full. It is up to the other side to prove contributory negligence applies in the circumstances rather than being up to you to prove that you did take proper care for your own safety.
If contributory negligence applies, your compensation will be reduced. In our experience, across the personal injury accident spectrum, reduction rates most often tend to be in the 10% to 25% range. In other words, for example, if contributory negligence is 25% then you lose one quarter of your damages.
Why the level of contributory negligence can be unpredictable …
Where there’s a chance that contributory negligence might apply, it can be difficult to estimate what view a court might take. There are principles behind the assessment of contributory negligence but there is a subjective element too. In cases involving accidents at work or tripping in the street, the difference between the ‘worst case’ and ‘best case’ predictions for contributory negligence could be as far apart as nil and 50%.
… But it’s more predictable in seatbelt cases: Lord Denning’s scenarios
One area of law where the relative unpredictability of contributory negligence has been taken away is in relation to the use of seatbelts in road traffic accidents. In a case from 1976, one of the most famous judges of modern times, Lord Denning, in the English Court of Appeal, made comments which are still as applicable now as they were then.
He divided seatbelt cases into three categories:
- (At one extreme) Where your failure to wear a seatbelt probably made no difference to the severity of your injuries – i.e. they would have been as bad whether or not you were wearing a seatbelt. In this case, there is no reduction in damages for contributory negligence.
- (At the other extreme) Where your injuries would probably have been prevented if you had worn a seatbelt – i.e. a seatbelt would have protected you from any injury. In this scenario, the reduction is 25%.
- (The middle ground) Where failing to wear a seatbelt made a “considerable difference” to the extent of the injuries you suffered. He gives the example of head injuries which might have been “a good deal less severe” if the person had been wearing a seatbelt but there would still have been some injury to the head nevertheless. Here, the reduction is 15%.
These “fossilised” proportions for contributory negligence in seatbelt cases have remained the law despite increasing pressure from the insurance lobby.
An unsuccessful attempt to increase contributory negligence levels in seatbelt cases
In another Court of Appeal case – from 2007 – an attempt was made to argue that there should be a 50% reduction for failure to wear a seatbelt in the particular circumstances. The injured person had been thrown from the front passenger seat of the vehicle and suffered injuries which left him paralysed from the waist down. If he had been wearing a seatbelt, his injuries would have been minor only.
The attempt was not successful and Lord Denning’s approach remains the law. It is important to remember, quoting his words, that “Whenever there is an accident, the negligent driver must bear by far the greater share of responsibility. It was his negligence which caused the accident. It also was a prime cause of the whole of the damage.”
If you have been injured as a result of a road traffic accident, you can get in touch with us for free, no-obligation advice. Complete the enquiry form on our Moray Claims website by clicking HERE or contact Peter Brash via email@example.com or 01343 564813. Remember that all initial enquiries are free of charge.