Contributory Negligence & Personal Injuries

by | Jan 22, 2019 | General Personal Injury | 0 comments

Contributory Negligence: Does Partial Fault Mean You’re Out of Luck?

You have been hurt in an accident, but the insurance company suggests you don’t have a case because you’re partially at fault. Is there any truth to this? Even if you are partly responsible, does that mean you’re entirely out of luck?

In legal terms, there is the concept of contributory negligence. This basically means that a plaintiff—a person hurt in an accident—contributed in some way to their injuries. If their actions leading to their injuries are found not to be what a reasonable, cautious person would have done in that situation, a court could find them partially at fault for the accident.

Even if contributory negligence is proven, that does not mean the injured party is entirely to blame. Indeed, they are not the only person responsible, and as such may still be eligible for substantial financial compensation for their injuries.

General examples of contributory negligence

Fault is generally determined by percentage. Hypothetically, if you are found to be 25% responsible for your injuries, that means you will only qualify to receive the remaining 75% of all damages awarded. So, if your suit is claiming $200,000 in damages, the maximum you could hope to collect will only be $150,000.

Some of the most common examples of people being partially at fault for their injuries are as follows:

Not wearing seatbelts

If you were injured in a car accident and you were not wearing your seatbelt you could be found 25% responsible for your injuries. But that only applies to injuries that could have been prevented by wearing a seatbelt. Usually, only 5–10% contributory negligence is assigned to injured parties who were not belted in.

Drivers partially responsibility for causing an accident

Often, fault in a two-car collision is divided between both drivers. The degree to which an injured party was at fault for an accident will affect any damages awarded.

Cyclists not wearing helmets

This is the equivalent of failing to buckle up for cyclists. 5–10% contributorily negligence could be assigned to any cyclist injured while not wearing a helmet. Again, it depends on the nature of the injury sustained. The cyclist would be less at fault for a lower body injury then they would be for something like a brain injury.

Pedestrians assuming too much risk

When pedestrians are injured in auto accidents, we have to see if the pedestrian was taking reasonable safety precautions. If they were not, we have to figure out to what extent such negligence caused their injuries. Every case is unique, of course, but people injured while walking intoxicated at night have been found anywhere from 20–70% liable for their own injuries.

Unsafe boating

Every year, over 40% of Canadians take a boat ride, more here in Ontario, but many never stop to consider the risks involved. If you’re injured in a boating accident, a variety of factors come into play when determining fault. Were you boating at night without proper lights? Was everyone wearing a life jacket? Were you intoxicated? Answering yes to any of these questions could lead to you being found contributorily negligent for your injuries.

Can children be found contributorily negligent?

According to Linden and Feldhusen’s Canadian Tort Law (2006), contributory negligence does not apply to children five years old or younger. The Supreme Court of Canada, however, stipulates that in some cases children six and up could be guilty of contributory negligence in some circumstances. It all depends on whether the child behaved in a way that could reasonably be expected of other children of similar age, experience, and intelligence.

In May of 2002, a Hamilton boy was hit by a car while crossing at a school crosswalk without a crossing guard.  The crossing guard had left her post early. Justice Ramsay decided that the boy’s actions were those of any “reasonably prudent 10-year-old of like intelligence and experience” and assigned zero contributory liability to him. Negligence was assigned 50/50 to the City and the crossing guard.

Case study: Snushall v. Fulsang

Contributory negligence is often assigned in cases of injuries sustained in a car accident while failing to wear a seat belt. For instance, on July 28, 1997, the plaintiff, Carol Snushall, was seriously injured in a car accident where she wasn’t buckled in. When the case came to trial in 2003, the jury assigned Shushall 35% liability for her own injuries. On appeal in 2005, the judge reduced her contributory negligence to only five percent, noting:

“in cases where failure to wear a seatbelt causes or contributes to the injuries, the degree of contributory negligence can range between 5 per cent and 25 per cent, with most cases being in the lower portion of that range.”

Case study: Lytle v. Toronto

In this case, a woman suffered a slip and fall injury when she caught her foot on some piping left lying across a crosswalk on Lawrence Avenue West in Toronto. She fell on her right side, injuring her hand, knee, and face. The injury to her elbow was severe. A property owner had left the pipe against a wall for garbage collection.

Damages were calculated at about $140,000. The City was not found liable. Instead, negligence was apportioned as follows:

  • 75% to the property owner who should have been aware that the pipes she put out were a hazard; and
  • 25% to the plaintiff who should have paid better attention to her surroundings as she crossed the street.

Due to her contributory negligence, the plaintiff was only awarded approximately $105,000.

Case study: Bartlett v. Bayham Township

The defendant in a personal injury case—often an insurance company—will often try to get contributory negligence assigned to the plaintiff to reduce the amount they may eventually have to pay out. It should be noted that this tactic is often rejected by the courts.

In this case, it was argued that the plaintiff was partially liable because they were breaking the rules of the road at the time of the accident. The plaintiff was overtaking a municipal truck on the left as the driver of the truck turned left without checking if it was safe to do so. The defence held that the plaintiff was contributorily negligent for attempting to pass while too close to an intersection.

The court found otherwise. Even though the plaintiff was committing a moving violation, doing so did not lead to the accident. The municipality was found solely liable for the accident and had to pay 100% of the awarded damages.

What if you’re accused of being contributorily negligent?

Being partially at fault for an accident does not mean you don’t have a right to claim for damages.  Being accused of contributory negligence does not necessarily mean the defence will be able to successfully prove this allegation.

Your conduct is only likely to be found negligent if you are creating an unreasonable and unnecessary risk of harm. The definition of unreasonable is unique in every case, depending on the specifics involved.

A court will consider a number of things when determining if your actions were negligent such as:

Was the harm foreseeable? What was the likelihood of that harm occurring? What would it have taken to prevent such harm?

So long as you demonstrated a reasonable degree of caution, you likely won’t be held liable (even partially) for an accident.

Make sure negligence is apportioned fairly

Contact the expert team of personal injury lawyers at Mackesy Smye today if you have been injured in an accident. We will make sure that the liability in your case is assigned properly to ensure that you receive a fair settlement in your case.

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