In this article, we will explain:
- Whether you can claim if you were partly at fault
- What contributory negligence means
- What evidence is considered and typical examples
- How compensation is affected
- How the law applies to children
- Likely percentage deductions
- The overall impact on a claim
Can I make a claim if I was at fault, or partly at fault?
To succeed in a personal injury claim, it must be shown that another party was at fault and that their actions caused your loss. If the accident was entirely your responsibility, you would not be able to recover compensation.
If, however, you were only partly at fault, you may still be entitled to damages. In that situation, the court may reduce your award to reflect your share of responsibility. This reduction is known as contributory negligence.
What is contributory negligence?
Contributory negligence applies when a claimant’s own actions contributed to the injuries suffered. The principle is that compensation should be reduced to a level that is just and equitable.
A simple example is an employee injured at work who chose not to wear personal protective equipment provided by their employer. The accident may not have been their fault, but the injuries may have been more severe because proper equipment was not used.
What evidence is considered, and what are typical examples?
To argue contributory negligence, the defending party must show that the claimant failed to take reasonable care for their own safety and that this failure contributed to the injuries sustained. The court considers whether the risk of harm was something a reasonable person could have anticipated and avoided, and whether the claimant’s behaviour made any material difference to the extent of the injury.
In practice, the court will look closely at the surrounding circumstances. Common examples include failing to wear a seatbelt, cycling without a helmet, entering an unsafe area at work, or stepping into the road without checking for traffic. These are situations in which a claimant’s actions may increase the likelihood or severity of an injury.
Not every argument succeeds. A defender must show a clear and direct link between what the claimant did and the harm suffered. Where that link cannot be demonstrated, the court is unlikely to make any deduction.
How will a finding of contributory negligence affect my claim?
If contributory negligence is established, the court will reduce compensation by a percentage that reflects the claimant’s share of responsibility. The court will first calculate the full value of the claim and then apply the deduction.
A key question is whether the claimant’s actions made the injuries worse. If the evidence shows the injuries would have been the same regardless, it may not be appropriate to make any deduction.
Does contributory negligence apply to children?
Yes, but the court applies a different test. Children are assessed according to what is reasonable for someone of their age and level of understanding. The court will consider the circumstances carefully before deciding whether any reduction should be made.
What percentage deduction is typical?
Deductions vary depending on the circumstances. Common examples include:
- up to 25 per cent for not wearing a seatbelt
- reductions where failure to wear a cycle helmet worsened the injury
- higher deductions, sometimes 50 per cent or more, where the claimant’s actions played a significant role
There is no fixed scale. Each case is assessed individually.
The impact of contributory negligence
A finding of contributory negligence can significantly affect the final award. Understanding how your actions may be assessed is an important part of preparing a claim. Speaking to a specialist solicitor can help you understand the likely position and minimise any deduction.
For specific, tailored advice on a potential claim, please contact the MFMac Personal Injury Team. You can also call 0131 247 1000 for a free, confidential discussion.
