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Contributory Negligence

What is Contributory Negligence?

If an individual caused or contributed to their own harm (i.e. they were partially at fault for the accident which gave rise to their injuries), they are said to have been contributory negligent. Pursuant to the Civil Liability Act 2003 (Qld), the principles which apply in determining whether a defendant has breached a duty of care, also apply in determining whether the person who has suffered injury/loss (i.e. the claimant/plaintiff) has been contributory negligent.

Examples of conduct that may be found to be contributory negligent include:

  • Failure to wear reflective clothing whilst cycling, and/or riding a bicycle that is not fitted with reflectors and/or illuminated with front and rear lights whilst cycling at dusk or at night.
  • Failure to cross a road at a nearby pedestrian crossing.
  • Using a mobile phone whilst driving a car.
  • Driving a vehicle whilst intoxicated or travelling as a passenger in a vehicle being driven by an intoxicated driver (see Intoxication – special provisions).
  • Failure to wear a properly fitted seatbelt (see Seatbelts).

The above list is just a few examples of circumstances where contributory negligence might be alleged. Contributory negligence can be alleged in a range of other circumstances.

How is contributory negligence assessed?

The assessment of contributory negligence turns on the facts of each case.

Whilst the Courts have power to reduce a plaintiff’s damages by up to 100%, in practice, a finding of contributory negligence rarely results in a complete bar to a claim.

Once a court has determined that the conduct of a plaintiff has been negligent, it then assesses the level of negligence, usually as a percentage.

More often than not, it is possible to reach an agreement with the insurer as to the injured person’s level of contributory negligence. This is done by reaching agreement as to a specific percentage or the amount of damages (compensation) to be paid which incorporates a deduction for contributory negligence.

If the level of contributory negligence in a case cannot be agreed upon between the parties, the case will need to go to hearing for the issue to be determined by a judge.

I was intoxicated – do I still have a case?

I am sometimes asked by claimants whether they are still entitled to compensation when they were driving whilst intoxicated or travelling with a driver who was intoxicated, when involved in a car accident. The short answer is probably yes, but it depends on the facts of the case.

Under the Civil Liability Act 2003 (Qld), intoxication refers to a person being under the influence of alcohol and/or drugs.

The Act provides that if an injured person is intoxicated, they are presumed to have been contributory negligent unless it is proved that their intoxication did not contribute to their breach of duty of care, or their intoxication was not self-induced. Under the presumption, the court must reduce its assessment of damages (compensation) by 25% or greater.

Similarly, if an injured person relied on the care and skill of a person who was intoxicated, and was aware or should have been aware of the other person’s intoxication, contributory negligence will be presumed. That presumption can be rebutted if it is proved that the other person’s intoxication did not contribute to their breach of duty of care or the injured person could not reasonably have avoided relying on the intoxicated person’s care and skill. Under the presumption, the court must reduce its assessment of damages (compensation) by 25% or greater.

In motor vehicle accidents involving higher levels of intoxication, greater penalties apply.

  • If the person who suffered harm was the driver or a passenger of the motor vehicle,
  • and the blood alcohol content of the driver was 0.15% or greater, or they were so much under the influence of alcohol or a drug, so as to be incapable of exercising effective control of their vehicle,

the minimum reduction for contributory negligence is increased to 50%.

I wasn’t wearing a Seatbelt – do I still have a case?

I also am asked by claimants whether they are entitled to compensation if they were not wearing a seatbelt at the time of their motor vehicle accident. The short answer is yes, but again it depends on the facts of the case. The courts have generally decided that a claimant will win a case but the amount of compensation should be reduced by a percentage to reflect the extent to which the failure to wear a seatbelt contributed to the claimant’s injuries.

Contributory Negligence Cases

Below are summaries of two cases involving seatbelt and intoxication issues. As noted above, the assessment of contributory negligence turns on the facts of each case. If there are issues of contributory negligence in your claim, legal advice should be sought from a solicitor experienced in the field as to the likely result in your claim.

Kelly v Glover v AAMI & Smith [2011] QCS 114

In this case, Mr Kelly was injured whilst travelling as a front seat passenger in a motor vehicle involved in an accident. The insurer, AAMI admitted primary liability but alleged contributory negligence on the basis that Mr Kelly was not wearing his seatbelt and should not have travelled with an intoxicated driver.

The only evidence that Mr Kelly plaintiff was unrestrained was a statement by him in hospital that he had been thrown through the vehicle’s windscreen. Photographs taken at the scene of the accident however showed that the windscreen was intact. Mr Kelly claimed that he was wearing his seat belt, stating that after the accident he was caught in his seatbelt in an upturned vehicle. Despite Mr Kelly’s problem with credit, the judge was not satisfied that the insurer had met its onus of proving that Mr Kelly had not worn a seat belt.

The judge however found that Mr Kelly had failed to take reasonable care for himself in travelling as a passenger in a vehicle driven by an intoxicated driver. The judge assessed Mr Kelly’s contributory negligence at 20%.

This case arose out of accident that occurred on 21 November 1996. If the accident had occurred after enactment of the Civil Liability Act 2003 (Qld), contributory negligence would have been assessed at a minimum of 25%.

Hawira v Connolly & Anor [2008] QSC 004

In this case, Ms Connolly and Mr Hawira had been drinking beer for an extended period of time before they got into a vehicle. Ms Connolly drove the car but an argument developed, and Ms Connolly lost control of the car and a single vehicle accident occurred. Ms Connolly and Mr Hawira gave different accounts of the events leading up to accident.

The Court firstly had to consider the issue of primary liability. The Court did not accept Ms Connolly’s version of events.

The Court then turned its mind to the issue of contributory negligence. Ms Connolly’s blood alcohol concentration [BAC] two hours following the accident was 0.119%. Expert evidence was led that her BAC would have been in the range of 0.1395 to 0.1805 at the time of the accident. The Court considered both parties to be intoxicated. Further, the Court was satisfied that Ms Connolly was so much under the influence of alcohol as to be incapable of exercising effective control of the vehicle. This meant that the minimum reduction for contributory negligence was 50%.

The court also found that it was more likely than not that Mr Hawira was unrestrained at the time of the accident and accepted medical evidence that it was highly probable that if he had been properly restrained, his injuries would have been less severe. The court assessed his contributory negligence for failing to wear a seatbelt at 16%.

In total, Mr Hawira’s damages were reduced by 66%.

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