Should You Pursue a Claim If You Are Partly at Fault?

December, 16th 2021
Nancy Sarmento Barkhordari
JD Barrister & Solicitor

A common misconception is that if you had some part in contributing to an accident that your claim for damages will be unsuccessful. However, this is not always the case.

In fact, the scenario that you are thinking of may very well be a case of contributory negligence. 

Determining the extent in which the claimant may have contributed to the accident is an essential aspect of the partial fault legal doctrine, as highlighted in the Negligence Act. 

Even if a plaintiff’s own negligent conduct is part of why the damage has occurred, they can still assert that their injuries, or the wrong that they have suffered, is the result of somebody else’s action (or inaction). 

Ultimately, in the cases of contributory negligence, the key is to determine to what extent or percentage the plaintiff and defendant are liable in the situation. 

It is crucial that even in the scenario where you believe that you are at fault, or partially at fault, that you get in touch with a lawyer who specializes in personal injury to review the specifics of your situation. 

Is My Case Contributory Negligence?

Almost all cases in which an accident has occurred can be framed as contributory negligence. Whether it is the failure to put on a seatbelt, looking on both sides of the road at a pedestrian crossing, or a similar scenario, the injured party will often be met with resistance when claiming for damages. 

The issue here is that the plaintiff will often be led to believe that they are more at fault than they actually are, which usually hurts their case. 

In cases of contributory negligence, a percentage is assigned in a case to case scenario. There are many factors to consider that a judge and jury considers when determining the extent of liability between parties. 

As an example, if the plaintiff is found to be 20 percent responsible for their injury, they will still be eligible to claim for 80 percent of damages.

Common Scenarios

Almost all defendants in injury cases attempt to use contributory negligence as a defence. 

Here are a couple scenarios that are quite commonplace:

Not Wearing a Seatbelt

In a traffic accident where an individual suffers (greater) injuries due to not wearing a seatbelt, they are generally found to be 5-10% contributorily negligent, with an upper range of 25%. Exemplified in the Snushall V. Fulsang case, this percentage varies from case to case, depending on the specifics of the accident and how much injury a seatbelt would possibly prevent in each situation. 

Seeking Proper Representation  

When faced with a serious injury, it is important to understand contributory negligence and how to navigate insurance adjusters and a defendant’s inevitable accusations. 

As such, whether it be collecting evidence, providing documentation, or bringing in an accident reconstruction expert to strengthen your case, experienced legal representation is necessary for you to obtain justice and a fair settlement for the wrongdoings that have been committed. 

Facing a serious injury is difficult enough. To make things worse, you may find yourself dealing with insurance adjusters who will try to convince you of your liability, discourage you from making a claim, and perhaps even consult with a lawyer in the first place. Furthemore, a defendant’s lawyer may attempt to minimize your claim by accusing you to be more at fault than you are.

If you are ever in such a situation, it is imperative that you seek proper representation and get in contact with a lawyer who specializes in personal injury who will fight for you, and your claim(s).

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