Personal Injury Claims and Contributory Negligence
1. What is Contributory Negligence
Contributory Negligence is the legal principle that an injured party (ie the Plaintiff), may have contributed to his or her own accident, or the extent of their injury, due to their own lack of care. This principle is now placed on a statutory footing by virtue of the Civil Liability Act.
2. When does Contributory Negligence arise in a Personal Injury claim?
In all personal injury claims, proving liability is the first hurdle to overcome. Essentially, this means proving the other party (ie the Defendant) is to blame for the relevant accident. Once court proceedings are issued and served on a Defendant, a Defendant begins to investigate the allegations made as set out in the Plaintiff’s Personal Injuries Summons and ultimately respond by delivering a Defence. In their Defence, a Defendant will respond in one of three ways:
i. Admit full liability for the accident;
ii. Deny liability for the accident; or
iii. Admit that they are partially at fault for the accident and allege that the Plaintiff is also partly to blame (ie Contributory Negligence).
3. Examples of Contributory Negligence in Personal Injury claims
Contributory negligence arises in every aspect of personal injury litigation including Road Traffic Accidents, Employer liability claims, Public Liability claims and in claims where the Plaintiff fails to mitigate their loss.
Road Traffic Accidents
The most common example would involve Road Traffic Accidents where a driver sustains personal injuries in a car accident collision in circumstances where their injuries were more significant than they otherwise would have because they failed to wear a seatbelt.
Employer Liability Claims
Another example which often arises is when a Plaintiff suffers personal injuries in a workplace. This usually occurs where the Plaintiff (ie the Employee):
i. Failed to make use of personal protective equipment provided to them by their employer;
ii. Failed to utilise equipment available to lift heavy material such as boxes in a warehouse for example;
iii. Had been appropriately trained and therefore should have known of the risk he or she was undertaking prior to the relevant incident.
Public Liability Claims
A further example of contributory negligence arises in slips, trips and falls in public places. These would include injuries sustained due to a fall on a public footpath or a fall due to liquid spilled on a supermarket floor for instance. It is often the case that while a Defendant could admit primary responsibility for the accident, they will argue contributory negligence on the Plaintiff’s part in their Defence and allege that the Plaintiff should have seen the hazard on the ground or floor which caused them to fall.
Plaintiff’s failure to mitigate loss
A failure to mitigate loss or damage may itself be contributory negligence under the Civil Liability Act. This is the case even in circumstances where the failure to mitigate occurs after the event or incident which was the principal cause of the loss concerned. In the context of Personal Injury claims, where a Plaintiff fails to get professional medical attention immediately after the subject accident which leads to a deterioration of their injuries, contributory negligence may arise. Essentially, a Defendant will try and establish that the gap between the date of accident and the date the Plaintiff’s injuries were assessed by a medical professional was unwarranted in order to allege contributory negligence on the Plaintiff’s part and ultimately contest their compensation claim.
4. How is liability apportioned incases of Contributory Negligence?
The Civil Liability Act requires the assessment of damages (ie compensation) to be made having regard to the relative degrees of fault on the part of the Plaintiff and Defendant.
When a Defence is delivered in a Personal Injury claim and subsequent settlement talks take place, the Defendant will seek a split in liability. In Ireland, this is usually done on a percentage basis. For example, where a Defendant argues that both parties are equally to blame, they will accept 50% liability. If a Defendant acknowledges that they are largely to blame, they might accept 70%-80% of the liability. A common example referred to earlier is when a Plaintiff is involved in a Road Traffic Accident and is not wearing a seatbelt at the time of the accident. This would normally result in a Plaintiff’s claim for compensation being reduced by 15 -25%. A similar reduction would occur for failure to wear a helmet when riding a bicycle for example.
A Defendant will usually raise this when settlement negotiations commence prior to the matter being heard in Court. If no settlement is reached between the parties, it will ultimately be up to the Court to review the evidence put forward to determine what split in liability(if any) should be made. In personal injury cases where contributory negligence is successfully argued, the compensation a Plaintiff is awarded is reduced by the same degree that they are found to be at fault. For example, if the court finds a Plaintiff to be 30% at fault, their compensation is reduced by 30% as a result.
It is clear from the above that the impact a successful argument of contributory negligence could have on a Plaintiff’s personal injury claim and compensation that follows is significant. Every case is completely different and for this reason, it is vital that any person who has been recently involved in an accident and feels that they have a potential personal injury claim should seek advice from Experienced Solicitors who specialise in the area of Personal Injury litigation so that they can be advised properly on every issue that arises in their respective case.
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In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement. This statement is made in compliance with Reg.8 of SI 518 of 2002.
If you would like to discuss making a personal injury claim please contact us to discuss further by calling our phone number: 01 234 0044 . We will be happy to have a no obligation conversation with you to discuss your claim and provide you with advice and an initial opinion regarding your injury, the process from the personal injuries assessment board to issuing proceedings in a case. We pride ourselves in knowing that our clients are always fully informed and advised of all aspects of their case from the beginning when they first speak to us regarding an injury, right the way through to a final award or settlement.
Cosgrove Gaynard Solicitors, 39 Waterloo road, Dublin 4.
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