- Legal term
- Contributory negligence
- Jurisdiction
- Queensland, Australia
- Commonly arises in
- Motor vehicle accident matters, workplace common law claims, public liability matters, and other negligence claims.
- Related concepts
- Negligence · Liability · Breach of Duty · Causation · Damages
Contributory negligence is a legal concept that may arise where an injured person is found to have failed to take reasonable care for their own safety and that failure contributed to the harm they suffered.
A finding of contributory negligence does not necessarily mean that another party was not negligent. Instead, it may result in the injured person’s damages being reduced to reflect their own share of responsibility for the harm.
Contributory negligence commonly arises in motor vehicle accident claims, public liability matters, and workplace common law damages claims.
Contributory negligence occurs where an injured person failed to take reasonable care for their own safety and that failure contributed to their injury or loss. If contributory negligence is established, the damages recoverable may be reduced to reflect the person’s share of responsibility.
What does contributory negligence mean?
Contributory negligence concerns the conduct of the person who suffered the injury. It asks whether that person failed to take reasonable precautions for their own safety and whether that failure contributed to the harm they suffered.
This is different from asking whether another person or organisation was negligent. Both questions can arise in the same matter. A defendant may be found liable for an injury while the injured person is also found to have contributed to the resulting harm.
Where contributory negligence is established, responsibility may be apportioned between the parties and the damages recoverable by the injured person may be reduced.
How is contributory negligence assessed?
In many Queensland negligence matters, the standard applied to contributory negligence is similar to the standard used when considering breach of duty.
The question generally involves considering what a reasonable person in the injured person’s position would have done, having regard to what that person knew or ought reasonably to have known at the time.
Risk
Was there a risk of harm that the injured person knew, or ought reasonably to have known, about?
Precautions
Were reasonable precautions available that the injured person could have taken?
Conduct
Did the injured person’s actions or omissions fall below the standard of reasonable care for their own safety?
Contribution
Did that conduct contribute to the injury, harm, or loss that occurred?
The assessment is highly dependent on the circumstances. Conduct that may amount to contributory negligence in one situation may not do so in another.
Contributory negligence generally concerns the assessment of damages in a claim involving fault. It should not be confused with Queensland’s statutory workers’ compensation scheme, where entitlement to statutory benefits does not ordinarily depend on proving that another person was at fault.
How does contributory negligence affect damages?
If contributory negligence is established, the court may reduce the damages otherwise recoverable by an amount that reflects the injured person’s share of responsibility for the harm.
For example, if damages were assessed at $100,000 before contributory negligence and the injured person was found to be 20% responsible, a 20% reduction would result in damages of $80,000.
The percentage used in any particular matter depends on the facts and the legislation that applies.
Examples of contributory negligence
Examples only
- A driver failing to keep a proper lookout before a collision.
- A person disregarding a clear warning about a known hazard.
- A worker failing to use safety equipment in circumstances where its use was reasonably required and the worker had been properly instructed.
- A person acting in a way that increases the risk or severity of an injury.
These examples are illustrative only. Whether conduct amounts to contributory negligence depends on the specific facts, evidence, and applicable law.
Can contributory negligence apply in motor vehicle accident claims?
Yes. Contributory negligence can arise in Queensland motor vehicle accident claims where the conduct of the injured person is alleged to have contributed to the accident or to the harm suffered.
Examples may include allegations about lookout, speed, seatbelt use, intoxication, or other conduct relevant to the circumstances of the collision.
Under Queensland’s compulsory third party scheme, an insurer that claims contributory negligence must identify the degree of contributory negligence it alleges when responding to liability in accordance with the statutory claims process.
Can contributory negligence apply in workplace injury claims?
Contributory negligence may be relevant to a Queensland workplace common law damages claim.
The Workers’ Compensation and Rehabilitation Act 2003 (Qld) contains specific provisions dealing with contributory negligence in common law claims, including the standard of care expected of a worker and particular circumstances in which contributory negligence may be found.
This is distinct from a statutory workers’ compensation claim, which operates under a different framework.
What evidence may be relevant?
Evidence relevant to contributory negligence depends on the allegation being made and the circumstances of the incident.
- Witness statements;
- Photographs and video footage;
- CCTV or dashcam footage;
- Incident reports;
- Workplace procedures and safety instructions;
- Road or traffic records;
- Expert evidence; and
- Other contemporaneous documents.
The evidence must be considered in context. The fact that an injured person could have acted differently does not, by itself, necessarily establish contributory negligence.
Relevant Queensland legislation
The legislation governing contributory negligence depends on the type of claim.
Sections 23 and 24 address the standard of care in contributory negligence and the extent to which damages may be reduced in many Queensland negligence matters.
Section 10 provides for the apportionment of liability where damage is caused partly by a claimant’s failure to take reasonable care and partly by the wrong of another person.
Contains specific provisions dealing with contributory negligence in workplace common law damages claims, including sections 305F to 305H.
Forms part of Queensland’s compulsory third party claims framework and includes procedural requirements where an insurer alleges contributory negligence.
Which provisions apply depends on the nature of the matter and the legal framework governing the claim.
Frequently asked questions
What is contributory negligence?
Does contributory negligence mean the other party was not negligent?
Does contributory negligence reduce compensation?
How is the percentage for contributory negligence decided?
Can contributory negligence apply to a car accident?
Can contributory negligence apply to a workplace injury?
This article forms part of the YCL Compensation Law Dictionary, a collection of plain-English resources explaining legal concepts commonly encountered in Queensland compensation matters.
The dictionary is intended to help readers understand terminology used in workplace injury, motor vehicle accident, public liability, and medical negligence matters.