The amount of compensation that an injured claimant will receive is dependent on the extent to which the injured and the at-fault party have ‘contributed’ to the accident. This means that in any claim, accepting liability does not automatically equate to full compensation being awarded to the injured party.
Contributory negligence affects a claimant’s compensation and is decided per the Ontario Negligence Act. In this article our injury lawyer in Toronto discusses its importance and how it can affect your claim and compensation.
What Is Contributory Negligence?
In any personal injury matter, there are always two opposite parties. On the one hand is the claimant, also the injured party. On the other hand, is the defendant or the person against whom a complaint has been made and whose negligence caused the claimant to suffer injuries.
Contributory negligence is the extent to which the claimant contributed to the accident, as well as the severity of such an accident. For example:
- Cristine, a pedestrian, was struck by Justin’s vehicle. Justin is determined to be the at-fault party in the collision.
- Cristine, however, did not look both ways before crossing the street. She also ignored a prominently displayed “Do Not Cross” sign. Her negligence in ignoring the necessary safety measures led to the accident.
Cristine, the injured party, is also the claimant in the example above. Justin, who is primarily at fault for causing the collision, is the defendant. Contributory negligence on Cristine’s part is determined by her failure to look both ways before crossing the street and also for ignoring the warning. She could be held liable for contributory negligence.
Here are a few more scenarios to illustrate the concept:
- An employee working in a construction area with falling debris was severely injured because he did not wear the required safety gear before entering the workplace. In this case, his employer’s defense lawyers may argue to reduce the compensation awarded to the employee according to his contributory negligence.
- A pedestrian hit by a vehicle while crossing the street at a green light may be held partially at fault for not checking the traffic before crossing. Contributory negligence may also be apportioned depending on the time available to the driver to avoid hitting the pedestrian.
- A woman slips and falls on an icy surface in front of a commercial establishment while wearing high heels. While the business owner will be held liable for his failure to salt the slippery surface in front of his establishment, the injured woman may also be held contributorily negligent for failing to wear weather-appropriate footwear, such as winter boots.
Many defense lawyers use contributory negligence to strengthen their client’s (defendant’s) case. To reduce the defendant’s liability, the defense lawyer will try to prove that the claimant was responsible for causing the accident, or exacerbating his or her injuries, to an extent.
How Does Contributory Negligence Affect Claims and Compensation?
The extent of contributory negligence on the claimant’s part will also determine the percentage that will be deducted from their compensation. For example, if the compensation is assessed at $500,000, but the claimant’s contribution to the accident is 50%, the claimant will only receive $250,000.
According to the Ontario Negligence Act, the parties involved in an accident must pay damages proportional to the assessed liability:
- Claimants found to be negligent will have their damages reduced according to the ‘degree of fault or negligence.’
- If there are multiple defendants, they are each responsible for paying their share of damages.
- The defendants (in cases where there are two or more) may also recover part of the damages from each other according to the percentage of their contribution to the negligence.
- If it is not feasible to determine fault, then both parties (claimant and defendant/s) will be held ‘equally at fault or negligent.’
Can Contributory Negligence Be Used as a Defense?
Yes. Even if a defendant admits liability, they can still use contributory negligence as a defense. In many cases, experienced defence lawyers have successfully reduced the damages the defendant has to pay. By arguing that the claimant is partially negligent, the defence can successfully prove that the claimant contributed to the accident or the severity of their injuries. However, claims of contributory negligence can be successfully defended.
In Waldick v. Malcolm, a 1991 case that went all the way to the Supreme Court, the claimant was injured after slipping and falling on the icy parking area of the defendant’s farmhouse. The defence tried to argue that Waldick was contributorily negligent as he knew that the laneway there was slippery. They also tried to argue that because Waldick had gone out without a coat that he was in a hurry and therefore not paying attention to where he was walking. However, both arguments were rejected at trial and that decision was upheld all the way to the Supreme Court.
This case is an example of one where an experienced and capable plaintiff’s personal injury lawyer can help successfully argue against a claim of contributory negligence.
Contact Your Personal Injury Lawyer Today
Contributory negligence can significantly affect one’s claim and compensation. Both parties (claimant and defendant) will likely contest fault assessments, so it’s crucial to have an experienced personal injury lawyer by your side. Our personal injury lawyers at AvaGio Law are highly experienced and knowledgeable in the law and have advocated for many clients.
At AvaGio Law, our policy is ‘No fees until we win.’ This means that consultations are free, and you have our guarantee that you do not have to pay unless we can secure appropriate compensation for you.
Call us at (416) 551 5492 or visit our website to fill out a contact form.