When you’re injured in an accident caused by someone else’s fault or negligence, you can pursue a claim for pain and suffering, lost wages, medical bills, and more. Securing maximum compensation from the wrongdoer is so important to supporting your recovery and protecting your financial stability.
Did you know that your financial compensation will be reduced if you share fault for the accident? Let’s talk about “contributory negligence” and how it can impact the bottom line in your personal injury case.
Proving negligence in a personal injury lawsuit
Personal injury claims are based in negligence. Whether you were hurt by a defective product, slip and fall, dog bite or car accident, you have to prove that someone else’s negligence or fault caused your injuries to win your personal injury claim. If you can’t prove that someone else was at fault, you aren’t entitled to damages from the defendant(s) in your lawsuit.
To establish negligence, you as the plaintiff must satisfy the court that (1) the defendant owed you a duty of care; (2) the defendant failed to meet that duty; (3) the defendant’s failure caused your injuries; and (4) you suffered damages as a result of those injuries. Once you prove each of those elements, you are entitled to compensation for the losses and damages you suffered.
The defence of contributory negligence
In response to your personal injury claim, the defendant will likely raise the defence of contributory negligence. The essence of contributory negligence is that the injured person’s own negligence caused or contributed to their loss or damage, either in whole or in part.
Contributory negligence can be rooted in the plaintiff’s actions or omissions. In other words, the defendant may allege that you did something or failed to do something that caused the accident, and/or allege something you did or failed to do caused your injuries or made the extent of your injuries worse. Here are some common allegations of contributory negligence in personal injury cases:
In a slip and fall case: the plaintiff failed to wear proper footwear, failed to use a handrail on stairs, ignored warning signs, and/or walked while distracted by their phone.
In a dog bite claim: the plaintiff teased, poked, or provoked the dog that attacked them.
In a motor vehicle accident lawsuit: the plaintiff failed to wear a seatbelt, failed to keep a proper lookout, was speeding, or failed to signal a turn.
In a defective product case: the plaintiff misused the product, failed to follow instructions, or ignored warnings.
It’s important to emphasize that the defendant must prove that the act or omission alleged actually caused or contributed to the accident or injuries for the contributory negligence defence to succeed. For instance, imagine a cyclist was not wearing a bicycle helmet when struck by the defendant’s truck. The cyclist suffered a concussion. In that situation, the plaintiff’s failure to wear a protective helmet could support a finding of contributory negligence.
Now imagine the cyclist suffered only a broken ankle. In that scenario, the plaintiff’s failure to wear a bike helmet is unrelated to the injury sustained. A bike helmet can’t prevent an ankle fracture, so the failure to wear a helmet won’t support a finding of contributory negligence.
In some cases, the relationship between a plaintiff’s act or omission and the accident/injuries suffered is not entirely clear-cut. Using the example we’ve been working with, imagine the cyclist suffered a catastrophic brain injury. Bike helmets can’t prevent every type of brain injury. The defendant would have to lead expert medical and engineering evidence to prove that the brain injury would not have occurred or would have been less serious had the plaintiff been wearing a helmet.
How shared fault impacts personal injury compensation
Contributory negligence is assigned using percentages. Fault is measured on a scale from 0% to 100% where 100% is completely at fault. If the defendant proves that your own negligence contributed to the accident or the injuries you suffered, your damages will be reduced by the percentage of fault assigned to you.
You are still entitled to receive compensation for your injuries, but you won’t get the full amount. Your damages will be reduced by the degree of your contribution. For example, if you’re found to be 15% at fault, the court will assess 100% of your damages and losses, but you will receive 85% of what your claim is worth.
You don’t have to go through it alone
You may be very concerned that you contributed to your injuries. Or you may think the defendant’s allegations of contributory negligence are completely baseless. In either case, you should contact a lawyer to discuss your situation. If you slipped on an icy sidewalk and the defendant says you weren’t wearing proper footwear, for example, an Oshawa slip and fall lawyer at our firm can deny that allegation, gather evidence to refute it, and draw on our knowledge of cases with similar facts to argue that there should be no reduction of your damages.
Get Trusted Advice From A Personal Injury Lawyer
Lindsay and Oshawa lawyers at Kelly Greenway Bruce are here to help you determine what your claim is worth and maximize your personal injury compensation.
We welcome you to contact us today to schedule your free initial consultation with a Lindsay or Oshawa personal injury lawyer. We proudly represent clients in Oshawa, Lindsay, Kawartha Lakes, Durham Region, GTA and the surrounding areas.