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How does contributory negligence affect a public liability claim?

Have you ever been involved in an accident that you believe was caused by the negligence of an organisation or individual? You may be eligible to pursue a public liability claim if the responsible party owed you a duty of care and they breached this obligation.

A successful claim could result in significant compensation to cover economic losses from the injury, such as missed income and superannuation, as well as non-economic losses, including pain and suffering or a reduced quality of life.

However, what happens when an accident is partly your fault? There are often cases where a defendant is guilty of negligence, but the plaintiff is also slightly responsible for the injuries they suffered.

For example, supermarket employees may fail to clean up a spillage in an aisle, causing someone to slip over and hurt themselves. But what if the individual wasn’t looking where they were going? Or they ignored warning signs? This is where contributory negligence becomes a factor.

What is contributory negligence?

As the name suggests, contributory negligence is the extent to which the claimant contributed towards the accident that caused their injuries.

The Civil Liability Act 2002 (NSW) states that a judge can subtract a percentage of a plaintiff’s damages if they suffered harm by failing to take adequate precautions against the risk of injury.

Specifically, the court takes into account whether:

  • The standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and
  • The matter is to be determined on the basis of what that person knew or ought to have known at the time.

Contributory negligence can be extensive enough to warrant a 100 per cent reduction in damages, effectively meaning the defendant’s duty of care breach is completely offset by the plaintiff’s own failure to protect themselves.

Accidents that result in the death of an individual are judged under the Compensation to Relatives Act 1897, but contributory negligence rules still apply.

Should I still make a contributory negligence claim?

You may feel that your actions in the lead-up to an accident may prevent you from receiving compensation due to contributory negligence.

Nevertheless, you should contact an experienced personal injury lawyer to assess your claim and see whether or not you are eligible for a payout.

© 2021 
Gerard Malouf & Partners
 — Personal Injury Compensation Lawyers

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