The Personal Injury Blame Game – Contributory NegligenceAugust 10, 2020
(A Note for Bikers, Road Users, Anyone & Everyone!)
By now everyone in the country has heard:
“Where there’s blame there’s a claim!”
“Have you had an accident that wasn’t your fault?”
It will come as no surprise, personal injury claims are not THAT straightforward.
In fact those turns of phrase are somewhat misleading, when it comes to who can make a claim for compensation. This is because they imply someone must be entirely to blame and someone else entirely innocent. Such an implication being factually inaccurate.
Viable personal injury claims are accidents that have arisen following negligence.
Blame and negligence are not the same thing!
At times there can be blame but no negligence and, in some very discrete circumstances, there can be negligence without blame.
Blame is of course a key factor when considering whether negligence has occurred, but it is important not to confuse the two.
I guess no one could come up with a catchy enough rhyme or slogan with the word negligence in it. Granted, “Where there’s negligence there’s a claim!” definitely does not have the same ring to it – but at least it would be accurate!
So blame is an important element, but blame is not always straightforward in personal injury claims. Sometimes it is not a case of one “good guy” versus one “bad guy”. i.e. someone completely innocent and someone negligent and completely to blame.
It is entirely normal for someone to be negligent, but only partly to blame. In real life, blame is often split between the negligent person and the injured person.
I have a younger brother. When we were children, and if we both got in trouble on a joint enterprise fashion, I would invariably get hit with the good old fashioned “you are older, you should know better!”
Negligence claims can be a bit like this at times. By that I mean there are all manner of things lawyers have to consider when contemplating the levels of “blameworthiness”; not, if you are old you are more to blame!
The point is, my status as the older sibling meant I was deemed to have greater responsibility and therefore greater blameworthiness for whatever damage resulted. (Perhaps the perceived injustice I felt put me on the path to becoming a personal injury lawyer, but I digress).
The blameworthiness considerations in personal injury cases are extensive and can be different for different types of personal injury claim, road traffic collisions/accidents at work/public liability claims and so on and so forth.
The take home point is this: you may still have a viable claim for compensation, even if you were partially at fault. It is what lawyers refer to as “contributory negligence”.
Contributory negligence is the percentage of blame put upon a claimant, in their personal injury action, to reflect the amount they are to blame for their own accident.
Road traffic collision cases are rife with contributory negligence and make for good examples. Picture this:
- you are riding your motorbike down a country lane;
- you are riding in excess of the speed limit;
- as you are riding, an oncoming car driver loses control coming around a bend, comes into your lane and crashes into you;
- you are not knocked off your motorbike and sustain serious physical injuries; and
- it transpires the driver lost control because they were texting whilst driving
In this example the car driver is negligent as they:
- owed the rider a duty of care as one road user to another;
- breached their duty of care by driving dangerously; and
- caused the rider to sustain injury
However, what of the speeding?
It could be the rider is found to be contributory negligent, if it is ascertained they could have gone unharmed if they were riding to the speed limit.
If they were going slower (like they should have been) would they have been able to brake or stop so as to avoid being hit? If the answer is yes, then they are partially to blame. If there was nothing they could have done regardless of speed, then of course the speeding element would be irrelevant and the rider would not be partly to blame.
So contributory negligence is was it says on the tin; it is just a contribution. The car driver is still the negligent party and the rider should still consider making a claim for compensation, even though they were breaking the law and could have avoided being hurt at all, or to a lesser degree, if they were going slower.
They have still been left with injuries they otherwise would not have sustained, if the driver had not negligently crashed into them.
So to my fellow riders (and of course everyone else!):
Please do not be afraid to contact a lawyer if you have been hurt in an accident you think may have occurred as a result of negligence, even if you feel you are partly to blame!
*from leg power to horse power!
Heather Petrie is a senior solicitor at Bolt Burdon Kemp specialising in Adult Brain Injury claims. If you feel you may have a claim or are enquiring on behalf of a loved one, contact Heather free of charge and in confidence at firstname.lastname@example.org. Alternatively, complete this form and one of the solicitors in the Adult Brain Injury team will contact you. Find out more about the Adult Brain Injury team.