Watch where you walk!

Proving who was at fault

In South Australia we have a fault-based legal system. This means that injured people who make claims for medical negligence, motor accident compensation and public liability injuries are required to prove that another person or entity was at fault for the injuries. For example, if you are injured in a motor accident and claim compensation, you must prove that another driver caused or contributed to the cause of the accident in order to succeed.

Assessing a compensation claim

When assessing personal injury compensation claims, the court will also consider whether the injured person did anything themselves to contribute to the cause of their injuries. This is called contributory negligence. Contributory negligence can include:

1. Inattentiveness;
2. Behaving in a reckless manner;
3. Failing to keep a proper lookout;
4. Failing to take reasonable care of your own personal safety;
5. Intoxication;
6. Failure to wear a seatbelt.

There are even some circumstances where contributory negligence will be presumed, such as if you fail to wear a seatbelt or your intoxication contributes to the cause of your injury.

If contributory negligence is found, the injured person’s compensation is reduced by the extent they contributed to their injuries. The reduction is based on a percentage determined by the court.

In Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183, the plaintiff was injured when he slipped on the smooth polished surface of a Coles car park. Just before he fell, he answered his phone, removing one hand from the trolley to focus on his handset. The NSW Supreme Court held that there was contributory negligence to the extent of 25% because the plaintiff’s inattention and his having only a single hand on the trolley made it more likely that he could not save himself from his slip and instead would fall to the ground.

Ultimately the court will consider the individual facts of each case to determine whether there was any contributory negligence and how much fault should be attributed to the injured person.

Turn to Turner Freeman