Examples of contributory negligence – What it means for your insurance claim and compensation?
By Pace Law | January 20, 2020
Accepting liability does not mean that someone who has been injured will automatically receive full compensation. Rather, the amount of compensation depends on determining the extent to which the claimant and the defendant have ‘contributed’ to the accident and, thus, bear responsibility for the resultant injuries.
In this article we will examine:
- what contributory negligence is;
- how the Ontario Negligence Act apportions liability; and
- examples of contributory negligence, and how they affected compensation.
What is contributory negligence?
Very simply, there are two opposing parties in a personal injury matter: the claimant, who has been injured, and the defendant, whose negligence caused the claimant’s injuries.
Contributory negligence refers to the determination as to what extent the claimant may have contributed to the occurrence or severity of the accident. It is an essential aspect of the ‘partial fault’ legal doctrine.
Contributory negligence provides defendants with an important defence. In order to diminish their clients’ liability, defence lawyers aim to show that the claimant was responsible, to some degree, for causing the accident and causing even more severe injuries.
Simple example of contributory negligence
Bethany’s car is struck from behind by Phillip’s vehicle. Phillip is found to be at-fault for causing the collision. However, because Bethany was not wearing a seatbelt, her failure to take the appropriate safety measures contributed to the severity of the injuries she sustained in the accident.
Will failing to wear full facial protection in a hockey game be construed as contributory negligence if the player sustains a facial injury? Only if the league’s rules required players to wear full facial protection.
What happens when a party is determined to have contributed to an accident?
Under the Ontario Negligence Act, 1990, parties must pay damages in proportion to the assessed liability.
- If there are two or more defendants, both are responsible for paying their share of damages.
- Two or more defendants can recover part of the compensation from each other in proportion to their contributory negligence.
- If the claimant is found negligent, damages will be reduced to the ‘degree of fault or negligence’.
- If the fault cannot be ‘practicably’ determined, both parties will be held to be at fault.
Importance of contributory negligence
The extent to which a claimant is found to have contributed to an accident (for instance, 25%) represents the percentage that the compensation paid will be reduced. Therefore, if compensation is assessed at $1 million and the claimant’s contribution to the accident is 50%, they will receive $500,000.
Contributory negligence is a defence
If a defendant admits liability, doing so does not bar them from arguing for contributory negligence. In fact, an experienced team of personal injury lawyers in Toronto can dramatically reduce the compensation an at-fault party has to pay by arguing that the claimant has been partially negligent and, thus, contributed to the accident.
Contributory negligence examples
Vehicle struck while parked illegally – Patterson v. Peladeau
The claimant, Ronald Patterson, parked his truck illegally in the middle of the road—as he needed to have his vehicle towed. When confronted by the unexpected obstruction on the road, the defendant driver attempted unsuccessfully to avoid colliding with Mr. Patterson’s vehicle. Patterson sued for the injuries he sustained as a result of the accident.
Contributory negligence of claimant: 73%
The jury found that Patterson had parked his truck illegally and, consequently, his actions led to the accident — as he had sufficient time to pursue a safer, more prudent course of action in order to have his vehicle towed.
Collision with motorized cycle ridden by a 12-year-old – Hodder v. Waddleton
The claimant, Jeffrey Hodder, was a 12-year-old boy who had accidentally driven his motorized cycle onto the road. Waddleton, who was driving a car, was unable to avoid colliding with Hodder. Just before the accident occurred, Hodder – who was not wearing a helmet — had been performing ‘donuts’ with his bike in the dirt.
Contributory negligence of claimant: 50%
The judge found that Jeffrey Hodder had failed to take appropriate care when riding his bike by the side of the road. A rider of his age and experience was expected to exercise greater caution and, hence, was found to have been equally responsible for the accident.
Slipping on a wet floor – Tondat v. Hudson’s Bay
Sandra Tondat, the claimant, entered a Hudson’s Bay outlet, slipped on a wet floor, and fractured her knee-cap. Hudson’s Bay argued that the floor was made of a special material that provided grip even when it was wet. Rather than being negligent, Hudson’s Bay argued that Sandra Tondat had failed to take reasonable care to prevent a fall.
Contributory negligence of claimant: 0%
The evidence presented established that Hudson’s Bay employed just one maintenance person for its large store. The court found there was no evidence substantiating Hudson’s Bay’s claim that Sandra Tondat was not ‘keeping a proper lookout.’
Other examples of contributory negligence include: a motorcyclist weaving between lanes; a skier not wearing a helmet; a pedestrian not looking for traffic before crossing the road; an employee driving a vehicle recklessly on a private construction site.
Effect of contributory negligence on claims and compensation
The apportioning of negligence will affect the compensation a claimant receives — as compensation will be reduced in accordance with the assigned percentage of contributory negligence.
- Insurance claim – The claims adjuster will determine fault and compensation will be paid out accordingly.
- Personal injury lawsuit – Compensation awarded by the judge or jury will be reduced in proportion to the claimant’s contributory negligence.
Importance of experienced personal injury lawyers in Toronto
Contributory negligence can affect the amount of the compensation to be paid significantly. Consequently, parties will contest fault assessment before the insurance company and the courts. Make sure you rely on personal injury lawyers who can advocate effectively for you. A team of lawyers with the appropriate resources will:
- Gather eyewitness statements;
- Reconstruct the accident;
- Take photographs of the scene; and
- Carry out a thorough investigation.
By taking the appropriate and necessary steps, your experienced and knowledgeable lawyers will build and present a strong case representing your interests. Schedule a free no-obligation meeting with a Pace Law Firm lawyer.