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Anyone who is seriously injured in a transport accident needs to understand TAC contributory negligence rules and what they mean for your claim. Fault for an accident is often disputed, and the evidence of who is at fault can significantly affect the available compensation.
Henry Carus + Associates have extensive experience holding negligent drivers accountable for motor vehicle accidents. Our unparalleled knowledge of the TAC also allows us to deftly handle issues of contributory negligence.
Call 03 9001 1318 today for a FREE, no-obligation consultation. Henry Carus + Associates represent clients in TAC matters throughout Victoria from multiple offices in Greater Melbourne.
What’s the Meaning of Contributory Negligence?
Negligence is defined as ‘a failure to take reasonable care to avoid causing injury or loss to another person.’ Legally, negligence is made up of the following elements:
- Duty of care: A responsibility not to cause harm to others (e.g., motorists are required to follow the road rules for their safety and to keep others safe).
- Breach: An individual or entity fails to uphold the duty of care by engaging in unsafe behaviour (such as speeding, failure to give way, drink driving, etc.).
- Causation: It must be shown that the negligence of party A caused party B’s injuries.
- Damages: This refers to the harm someone suffers due to another’s negligence, as well as the compensation they are due.
What Is the Difference Between Negligence and Contributory Negligence?
Fault for a road accident resides with the person whose negligence led to the accident—usually the driver of a motor vehicle. Sometimes fault can be divided amongst those responsible for causing the accident and the person who has been injured. The fault attributed to the injured person is considered ‘contributory negligence’.
All of the parties involved in an accident may be partially at fault. If you find yourself in this situation, it is critical to know how TAC contributory negligence works.
When Does Contributory Negligence Apply in a TAC Claim?
Broadly speaking, there are two categories of compensation paid by the TAC. The first consists of no-fault benefits like payment of medical expenses and like services, income support, etc. Victims are entitled to these benefits regardless of who was at fault for the accident.
The second category consists of common law damages, including loss of earnings, pain and suffering, etc. In addition to proving that you suffered a serious injury, you need to prove that someone else was at fault for the accident to obtain common law damages.
Contributory negligence may be a factor in a common law damages claim if it is asserted that the injured person contributed to the cause of the accident.
If you have been seriously injured in a road accident, common law compensation can help cover the added expenses and make up for the adverse impact on your physical and psychological well-being. A knowledgeable lawyer can help determine who is at fault and navigate issues involving TAC contributory negligence.
How Do You Calculate Contributory Negligence?
One first has to accept that the injured person has contributed to the happening of the accident. Many times contributory negligence is asserted by the TAC only to later accept that the injured person was not at fault and its insured driver was fully responsible for the accident.
If contributory negligence is seen as validly raised, then it is essential that all relevant evidence be obtained to judge to what extent. Usually, the evidence considered includes:
- Police reports
- Eyewitness statements
- Photographs of the accident scene and the vehicles involved
- Video footage
Once you have all relevant evidence, those experienced with TAC claims are able to assess to what extent the injured person should be held accountable for the accident. The concept involves attributing a percentage of liability to the injured person.
A typical calculation of contributory negligence might go something like this:
Jack wanted to pass a slow-moving vehicle in the left lane. He changed lanes safely but neglected to signal. Just behind him was William, who was travelling 20 km/h over the speed limit and about to pass the same vehicle.
William rear-ended Jack, who suffered a serious back injury in the collision. The police cited William for speeding but noted that Jack failed to give way.
Jack lodged a common law damages claim. A reasonable assessment of the accident would be to attribute 90% of the fault for the accident to William for driving at an excess speed, while Jack is likely to be found 10% at fault.
Read More: What Are the Car Accident Fault Determination Rules in Victoria?
How Contributory Negligence Affects TAC Compensation
Common law compensation is reduced in proportion to the degree of contributory negligence. Returning to the example of Jack and William above:
After consulting with medical practitioners and a personal injury lawyer, Jack claimed common law damages totalling $500,000 for his back injury at a pre-issue conference with the TAC. The TAC agreed that William was principally at fault for the accident, but argued that 10% of the claimed damages should be attributed to Jack because he did not signal. Jack’s lawyer agreed, based on all the evidence the law firm had gathered in support of Jack, and Jack’s claim was settled for $450,000 (90% of what was a fair assessment of his compensation).
It is important to note that an acceptance of contributory negligence does not bar the claimant from recovering common law damages. Unless it is agreed that the injured person was 100% at fault for the accident, a portion of common law compensation may still be obtained.
Navigating Contributory Negligence Issues
Although the negligence of the individual driving the motor vehicle may have led to the transport accident, common law damages are paid by the TAC. This means the TAC acts as an adverse insurance company when faced with a common law claim.
Insurance companies don’t like to make payouts, and the TAC is no exception. Therefore, if contributory negligence can be fairly raised as a defence to a common law claim, the TAC will raise it as it provides the TAC with an opportunity to avoid paying less in compensation.
Just because the TAC asserts an injured person is at fault does not make it true. Experienced personal injury lawyers can disagree as to whether there is any contributory negligence or to the percentage of responsibility the TAC wishes to impose on an injured person.
If the differences between the TAC’s views and that of an experienced personal injury lawyer cannot be resolved, then the matter is likely to proceed to formal court litigation. It is at this stage that the evidence gathered by an experienced personal injury lawyer will be essential in assisting a jury to find in favour of the injured person.
The court litigation process may seem daunting, but it can make the difference between maximising your compensation and getting less than you deserve.
Get Help with Your Accident Claim
TAC contributory negligence is a complex subject. You need a law firm that specialises in TAC legislation and recovering maximum compensation for the victims of road accidents.
You Deserve More. Lawyers at Henry Carus + Associates fully investigate the accident to identify who is at fault. We handle all aspects of the TAC claim, including the application for common law damages.
If any disputes arise, our team is fully prepared to advocate for a favourable resolution. We have extensive experience negotiating settlements and, if necessary, taking matters to court.
Contact Henry Carus + Associates for FREE today.
