Claim Advice

Can you claim personal injury if you are at fault?

Being in an accident can be a traumatic and stressful experience for those involved. Whether it was a motor vehicle accident, a workplace accident or even a slip and fall at a shopping centre, these accidents often leave parties in physical, emotional and financial distress. However, there are personal injury claims which can be made to help provide compensation for your injuries – even if you were partly at fault. Read on to find out more about personal injury claims and how being partly at fault will affect such a claim.

Contributory Negligence

Contributory negligence occurs when one’s own negligence has contributed to the causation of their injury, due to a failure to take reasonable care. For example, contributory negligence will have occurred if you were driving a car over the speed limit and you then hit a pedestrian illegally crossing the road. While the pedestrian is at fault for jaywalking, you as the driver are also at fault for failing to drive below the speed limit and thus not stopping in time to avoid a collision.

Some further examples of contributory negligence include:

  • A customer who has slipped at the shopping centre, because they ignored the “slippery when wet” sign
  • A worker who has lifted a large box at work by himself, when work training has taught him not to, and then sustains a back injury
  • A passenger who has failed to wear a seatbelt, and then sustained serious injuries in a crash
  • A patient who has provided a false medical history to their doctor, who then gives an incorrect diagnosis

Make a Personal Injury Claim

Personal injuries refer to a physical or psychological injury, sustained as the result of the wrongful actions of another. As personal injury law is very broad, there are many different classes of injuries and compensation schemes – including motor vehicle claims, workers compensation claims and public liability claims.

Even if you are partly at fault for the accident, you are still entitled to make a personal injury claim. However, where you have brought a personal injury claim against someone, they are entitled to claim a defence of contributory negligence against you if your actions have in fact contributed to the accident occurring.

Elements of Contributory Negligence

There are some elements which need to be proven before contributory negligence can be established against you. Contributory negligence requires that you owe duty of care, and that you breached that duty of care by your negligent conduct falling below the standard of a reasonable person, and as a result damage has been suffered.


Contributory Negligence Apportionment

If the accident was partly your fault, the responsibility for the injury will be apportioned as a percentage between the parties at fault and compensation will be reduced accordingly. Any compensation you receive will be less than the amount you would receive if you were not at fault at all, and is generally reduced by the percentage of which you contributed to the accident.

Personal injury compensation can be claimed for:

  • Medical, rehabilitation and hospital expenses
  • Home modification and attendant care expenses
  • Loss of earnings or earning capacity
  • Pain, suffering and loss of enjoyment of life (if the injured party has suffered a whole person impairment over the 10% threshold)

Mandatory Contributory Negligence Apportionment

In some cases, there will be legislation imposing mandatory percentages of apportionment for certain types of contributory negligence. For example, section 50(4) of the Civil Liability Act 2002 prescribes that where a person’s own intoxication has contributed to their injuries, there must be at least a mandatory minimum of 25% liability attributed to that person.

Obtaining Legal Advice

If you are partly at fault, you should seek legal advice from a personal injury lawyer to ensure that any claims of contributory negligence against you are adequately handled to ensure your best chance at receiving compensation. As there are strict time limits which apply personal injury claims, so you should endeavour to meet with a personal injury lawyer as soon as possible.


If you are looking for more information to make a personal injury claim, get in touch with Schreuders today.


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