The simple answer to this question is: yes… possibly.
In Queensland, claims for compensation are in part governed by the Civil Liability Act 2003 (Qld). This Act sets out the circumstances in which someone can claim for compensation even when their own actions may have contributed to the accident which caused their injury, such as in a road accident.
This is known as ‘contributory negligence’ and how it is considered in making a claim for compensation is outlined below.
What is contributory negligence and how is it assessed?
The classic example of contributory negligence is the person who steps off the kerb onto the road and causes a car accident which results in the pedestrian being injured. While the driver of the car involved may still eventually be held liable for the accident because they did not take reasonable care to watch out for the pedestrian and avoid the collision, the court may have to decide – on a percentage basis – that both parties actually share the blame for the accident.
In this situation any damages which the pedestrian may receive in compensation for their injury, may be reduced by the percentage amount the court decides the pedestrian was responsible for contributing to the accident by stepping from the kerb without taking proper care. Under the legislation, this reduction can potentially be determined up to 100% (i.e. the pedestrian receives no damages).
Working out the percentages of blame to be ‘apportioned’ to each party will rely on the particular facts of each case. Often in road accident cases where it is clear the party seeking compensation contributed in some way to their injury, a negotiated agreement with the other party’s CTP insurer will settle on an amount of compensation that takes into account the contributory negligence of the injured person. If an agreement can’t be worked out, the court will need to decide how blame is divided in the case.
Could I still claim compensation if I was drink-driving?
Under the Act, there are mandatory reductions of 25% or greater in damages where someone’s intoxication contributed to their injuries occurring, or where an injured party has relied on the care or skill of another person who is intoxicated. The only exceptions to this finding will be a finding of fact that intoxication did not cause a person to breach their duty of care, or where an injured person could not reasonably avoid relying on an intoxicated person’s care and skill.
In the case of motor vehicle accidents, however, higher levels of contributory negligence – a 50% reduction in damages or greater – apply if an intoxicated driver has a blood alcohol content of 0.15% or greater, or is under the influence of alcohol or a drug which renders them incapable of exercising effective control of their vehicle.
Likewise in these circumstances, if you travel in a car driven by an intoxicated person, and you are aware or should be aware of their intoxication, the court will find you contributorily negligent towards any injury you suffered and discount compensation by 50% or more.
What about if I’m found to be not wearing a seatbelt?
You may still be able to make a successful compensation claim but the court will assess your contributory negligence to the extent your failure to wear a seatbelt contributed to your injuries.
As will be clear from this article, the amount you might receive in compensation for an injury sustained in an accident can vary greatly if it’s found your actions contributed in causing the accident. Every accident scenario is different and your chances of success will turn on the facts and how they are presented. The services of an experienced compensation lawyer can be vital in securing you the maximum amount in situations where your own negligence helped contribute to the accident.
At McNamara Law we have an established track record in compensation law and can help assess your claim and see it through to a successful resolution. Contact us today on 1300 285 888 to set up a meeting at our offices in Ipswich, Springfield or Gatton.