Contributory Negligence Claims in Personal Injuries

Did you know that in Australia, contributory negligence is common in personal injury cases? If you are determined to be contributorily negligent in causing your own personal injuries. Please find out your rights and entitlement here.

Negligence Claims in Civil liability Act (CLA)

In the personal injury claims, the CLA usually applies in public liability claims, medical negligence claims and work injury claims against a person who is not the employer (i.e, workers compensation third party claims).

Before negligence can be proven in a civil action, it must be shown that the Defendant owed the Plaintiff a duty of care. The provisions of the Civil Liability Act 2002 (WA) (CLA) apply when determining whether the Defendant owed a duty of care and breached its duty of care to a Plaintiff.

The Plaintiff bears the burden of proving a breach of duty of care in common law proceedings. The principals regarding the duty of care are contained in Section 5B of the Civil Liability Act.

Reasonable Person

A court is required to answer the following questions to determine whether a person owes a legal duty of care and whether there is negligence:

1. Whether a reasonable person in the position of the Defendant would have foreseen that their actions or inaction involved a risk of injury to the Plaintiff, this is called the ‘reasonably foreseeable consequence’ test; and
2. If the answer is ‘yes’, then what a reasonable person in the position of the Defendant would have done in response to the risk.

The above two-step process was set out by the High Court in the case of Wyong Shire Council v Shirt.

What are the laws of negligence?

Where one person (which includes a company) owes another a duty of care, negligence is doing or failing to do something that a reasonable person would, or would not, do and which causes another person damage, injury or loss as a result. A negligence suit is where a person alleges negligence and claims loss or damages arising from the negligence liability.

Negligence focuses on whether there is a sufficient relationship or proximity to give rise to a duty of care. Some established relationships where a duty of care will be owed are as follows:

• A relationship between teacher and student;
• Employer to employee;
• Patient relationship;
• An occupier of premises to an entrant;
• Parent to child;
• Occupier of premises to entrant;
• Road user to other road user;
• Manufacturer to consumer.

In a negligence claim the role of the court is to determine:

1. Was the Defendant negligent and did the negligent conduct result in the claim;
2. If so, is the Plaintiff guilty of contributory negligence and if so to what extent? and
3. If liability is established what is the appropriate award of damages?

Contributory Negligence in Personal Injury Claims

In Western Australia, most personal injury claims arise in the District Court of Western Australia. The legal procedure is usually:

1. Legal proceedings are usually commenced with a Writ of Summons;
2. The Defendant files a Memorandum of Appearance;
3. The Plaintiff files a Statement of Claim setting out the factual allegations regarding the case; and then
4. The Defendant files a Defence.

The Defence is usually the document that contains allegations of contributory negligence. If the other party alleges contributory negligence this is usually the point where the Plaintiff can start to address those allegations by obtaining appropriate evidence.

No Win, No Fee Lawyers

Under the No Win, No Fee arrangement, you won’t need to pay Foyle Legal’s Legal fees (the fees that we charge for the work we do on your claim), unless we get you a settlement amount.

Your lawyer will take you through this arrangement in more detail including any terms and conditions in your obligation free first initial consultation.

For quick information on our No Win, No Fee terms and disbursements, please visit our No Win No Fee Lawyers Page 

What is negligence in common law?

Negligence is part of ‘tort law’. The word tort is a French word meaning ‘wrong’. One of the main guiding principles is that one must take reasonable care to avoid acts or omissions that could reasonably be foreseen as likely to injure one’s neighbour.

What is a contributory negligence claim?

Contributory negligence arises where:

1. The Plaintiff is successful in proving that the Defendant was negligent; but
2. Then the Defendant says that the Plaintiff own act or omission caused or contributed to their own loss.

A common scenario is that the Defendant may admit that the Defendant was the person responsible for causing a motor vehicle accident, but they may say that the Plaintiff should also be held liable for causing or contributing to the accident, and therfore the damages awarded should be reduced.

For instance, the Defendant is faced with a ‘give way’ traffic sign. The Defendant enters an intersection and is struck by the Plaintiff’s vehicle. In certain circumstances, the Defendant may say that the Plaintiff did not exercise reasonable care by keeping a proper lookout or driving at a speed that was excessive in the circumstances.

The onus of establishing contributory negligence is on the defendant. Australian courts making a finding of contributory negligence liability involves a comparison of both the culpability, that is, of the degree of departure from the standard of care of the reasonable person, and the relevant importance of the acts in causing the damage, of the parties.  It is the ‘whole conduct’ of each party in relation to the circumstances of the accident which must be subjected to comparative examination.

To do this the court looks at factual causation and performs a factual investigation of whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case.

Contributory negligence focuses on the allegedly negligent conduct of the plaintiff.  The duty owed by the defendant, although relevant, is one only of the many factors that must be weighed in determining whether the plaintiff has so conducted itself that it failed to take reasonable care for the safety of its person or property.

No Win, No Fee Lawyers

Under the No Win, No Fee arrangement, you won’t need to pay Foyle Legal’s Legal fees (the fees that we charge for the work we do on your claim), unless we get you a settlement amount.

Your lawyer will take you through this arrangement in more detail including any terms and conditions in your obligation free first initial consultation.

For quick information on our No Win, No Fee terms and disbursements, please visit our No Win No Fee Lawyers Page 

What is the contributory negligence rule?

Section 5K of the CLA and Section 4(1) of the Law Reform (Contributory Negligence and Tortfeasors’ Contribution) Act 1947 (WA) apply to a claim regarding contributory negligence. It will be applied differently from one case to the next, but previous case law (called precedent) provides useful guidance which may be binding on a court.

Section 5K of the CLA provides the following rules:

1. The principles regarding the duty of care and reasonable foreseeability (in Section 5B of the CLA) also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm;
2. The standard of care required of the Plaintiff (as the person who suffered hard due to another’s negligence) is that of a reasonable person in the position of the Plaintiff;
3. the matter is to be determined on the basis of what that person knew or ought to have known at the time.
4. The contributory negligence of a plaintiff is to be assessed against the risk of harm to himself or herself rather than the risk of harm to others.

Section 4(1) of the Law Reform (Contributory Negligence and Tortfeasors’ Contribution) Act 1947 (WA) provides:

(1) Whenever in any claim for damages founded on an allegation of negligence the court is satisfied that the defendant was guilty of an act of negligence conducing to the happening of the event which caused the damage then notwithstanding that the plaintiff had the last opportunity of avoiding or could by the exercise of reasonable care, have avoided the consequences of the defendant’s act or might otherwise be held guilty of contributory negligence, the defendant shall not for that reason be entitled to judgment, but the court shall reduce the damages which would be recoverable by the plaintiff if the happening of the event which caused the damage had been solely due to the negligence of the defendant to such extent as the court thinks just in accordance with the degree of negligence attributable to the plaintiff.

What is an example of contributory negligence?

In negligence action cases, pleads of contributory negligence are very common. The Defendant will often say that the Plaintiff’s injury was caused or contributed by his or her failure to avoid harm to himself or herself and as a result, the Plaintiff has suffered a loss due to his or her own conduct. Some common examples are:

• Pedestrian Car Accident: A Plaintiff suffers injury when she was crossing the road and was hit by a car. The Defendant says the Plaintiff ‘came out of nowhere’. The Defendant pleads that the Plaintiff was negligent in failing to stop and check it was safe to cross the road before crossing the road and moving at a speed that was too fast given the danger of oncoming traffic.
• Work Injury: A worker’s boss supplies him with a ladder. The worker notices a rung on the ladder was moving but decides to use the ladder anyway. The worker then falls on the way down the ladder as a result of the rung breaking. The Plaintiff sues his employer on the basis that they are vicariously liable for the acts of his boss. His employer (as Defendant) alleges that the harm caused in this particular case happened because the worker knew the ladder was unsafe, but proceeded in any event, an act that they say constituted negligence.
• Medical negligence: A Plaintiff experiences pain in his head for 10 days. He does not seek medical attention at first but then attends the hospital. The hospital fails to diagnose him and eventually accepts this was the defendant’s negligence and admits liability. The hospital may allege that the Plaintiff was negligent in failing to seek medical attention at an earlier time and as a result, the Plaintiff’s compensatory damages should be reduced.

How do you prove contributory negligence?

Contributory negligence is generally proven by the facts of the case. Precedent (prior case law) is often used in negligence cases and is generally accepted of being of at least some benefit.

Foyle Legal is a personal injury law firm specialising in the personal injury suffered as a result of motor vehicle accidents, work accidents, medical negligence, criminal assaults (criminal injuries compensation) and public liability. At Foyle Legal, we have a team of experienced workers compensation lawyers and ligation lawyers specialising in negligence claims. Your first attendance is obligation free if you choose not to proceed.

We provide a no win no fee legal service and can help to advise you regarding your legal rights and whether you can show that a defendant’s conduct constituted a defendant’s breach of their duty of care.