Contributory negligence is when the other party (the ‘Defendant’ in law speak) admits that they are at fault for your accident and will pay you compensation but want to pay you less as they feel you are partly at fault for the accident. For example, if they successfully allege that you are 20% at fault for the accident then the other party will pay you 20% less than the value of your claim.
Contributory Negligence MUST be pleaded by the Defendant and it also has to be proved by the Defendant.
You cannot be found to be contributory negligent in your case, if it has either not been pleaded (claimed) by the Defendant nor has it been argued at the final trial.
The test for contributory negligence is set out in the Law Reform (Contributory Negligence) Act 1945, s 1 (1) and it explicitly states that the Defendant must establish on the ‘balance of probabilities’, 3 main facts:
- That you, the Claimant, were at fault
- The fault was causative of the injury which you suffered
- It would be just and equitable for your damages to be reduced
It is often the case that the third point, listed above, is ignored as the conduct of the Defendant’s themselves could mean that the third test alone would fail and the judge is likely to state that there should be no reduction.
It is also stated that in Accident At Work claims, your lack of concentration or inadvertence, cannot form the basis for finding you to be contributory negligent when you have been injured as a result of a negligence by your Employer!
In conclusion, it is worthwhile noting that it is difficult for the Defendant’s to prove a case of contributory negligence as it is for the Defendant’s to both plead and prove the same.
