There are two sides to every story, as the saying goes.
And when you launch a personal injury lawsuit, there’s a good chance the other party will try to pin at least some blame on you. In court, we call the legal concept invoked by this kind of claim “contributory negligence.” This is essentially an allegation that you were partly to blame for any losses you suffered.
Below, based on my experience as a personal injury lawyer, I address clients’ most common questions about contributory negligence.
How does contributory negligence affect my damages?
Judges determine contributory negligence on a case-by-case basis using a framework set out in Ontario’s Negligence Act, considering several factors, including the plaintiff’s actions before the incident, the nature of the event and relevant case law. The burden is on the defendant to prove that the plaintiff’s actions contributed to their losses or damages.
Ultimately, each party is assigned a percentage of the fault and damages are reduced accordingly. For example, if a judge concludes that you suffered damages worth $100,000 and assigns you 25 per cent of the blame, your award will be reduced by that proportion, leaving 75 per cent of the total amount, or $75,000.
What are some common examples of contributory negligence?
The facts of each case are different, but there are some examples of contributory negligence that show up repeatedly, depending on the type of claim the plaintiff is advancing:
- Failure to wear a seatbelt: This is a classic example of contributory negligence involving motor vehicle accidents. Over the years, judges and juries have typically assigned fault between five per cent and 25 per cent for the lack of a seatbelt and a landmark Court of Appeal decision formally capped the proportion at 25 per cent in 2005.
- Inappropriate clothing: Pedestrians injured at night may be found contributorily negligent if they were crossing at an unmarked crossing or wearing dark clothing without reflective gear. Meanwhile, a slip-and-fall victim could also be exposed to the same finding if they were wearing inappropriate footwear for the conditions, like flip-flops or high-heels in icy conditions.
- No helmet: Bicycle and motorcycle riders are routinely found contributorily negligent if they fail to take standard safety precautions.
- Ignoring warnings: Defendants in occupier liability case claims may advance a contributory negligence defence if they had posted warnings about general or specific dangers that played a role in the plaintiff’s injuries.
Can I still make a claim for Accident Benefits if the accident was partly my fault?
Yes. It’s important to remember that your entitlement to accident benefits is not affected by any determination of blame. Under Ontario’s Insurance Act, motor vehicle injury victims are eligible for statutory accident benefits to cover medical or rehabilitative treatment and income replacement pending dispute resolution, whether or not they were at fault.
Contributory negligence only comes into play for tort claims, which is the name we give to personal injury lawsuits filed in court by an individual seeking damages from an at-fault party. If you were entirely to blame for your injuries, you would not be entitled to damages. However, if you were only partly at fault, you can still make a claim, but your damages award will be reduced.
Contributory negligence is often one of the key issues in a negligence claim. Insurers often raise contributory negligence arguments as a strategy to limit their payout, which makes early legal advice crucial. A personal injury lawyer can help you gather strong evidence, challenge unfair allegations, and work toward the best possible outcome for your claim.
If you’ve been injured and the other party claims you were to blame, or you have any other concerns about a personal injury claim, contact me or another member of the personal injury lawyer team at Edwards Pollard LLP in Oakville, Ontario.