Can I claim for damages if the accident was partly my fault?

Generally speaking, for all personal injury claims, it is necessary to establish, ultimately to the satisfaction of the court, that another party was responsible for the accident which resulted in the injury sustained.

In order to recover damages in a personal injury claim you need to prove to the court:

  • that you were owed a duty of care
  • that the duty of care was breached
  • that the breach of the duty was causative of the injury, loss or damage.

Once these matters have been established the court will go on to assess the damages to which you are entitled.

However, in defence of the claim the other party may assert that the injured person was responsible for their own injuries, at least in part. The court will then be called upon to apportion liability as between the parties. That is, determine who was at fault and to what

In any liability dispute there will be evidence called. The evidence will comprise testimony from the interested parties as well as any documentary, photographic or other evidence that may be available concerning the circumstances of the accident. Often there is expert evidence introduced also on the question of liability. The court will determine the question of liability and apportion same as between the parties. Should the court find that the injured person was not in any way contributorily negligent, that is responsible for the accident, then they will be entitled to recover the entirety of the damages assessed in their favour. However, if the court finds that the injured person was in fact, in part, responsible for the accident, then the proportion for which the injured person is found to be responsible will also serve to reduce the damages awarded accordingly. For example, if the injured person was found to be 50% responsible for the accident, then the damages assessed in favour of the injured person will be reduced by 50%.

There are instances where an injured person can be contributorily negligent to the extent of 100% such that even though liability in negligence on the part of the other party has been established, the court is satisfied that it was entirely the actions of the injured person which caused the injury.

Questions of fault however are not relevant in a workers’ compensation claim. An injured worker is entitled to compensation from the employer’s workers compensation insurer even though the employer may not have been negligent. It is only if the injury is deliberately self-inflicted that the worker would not be entitled to recover benefits.

Brydens Lawyers are experts in the prosecution of all personal injury claims. Whether injured in a motor vehicle accident, work accident or on public or private property, contact Brydens Lawyers without delay on 1800 848 848 or brydens.com.au. Strict time limits can apply to the making of any personal injury claim. At Brydens Lawyers #WE DO personal injury claims.