Contributory and Comparative Negligence: How Do They Come into Play in An Injury Claim?

When you are injured in a traffic accident, you may be entitled to recover compensation for your damages if you can prove the other driver was “at fault” for the collision. To prove fault, you must show that a preponderance (majority) of the evidence demonstrates that the other party caused the collision that resulted in your injuries. Once you prove the other person caused the crash, you can recover money for your claim.

However, the legal theories of contributory negligence and comparative negligence can become an issue if the other party claims you were also responsible for the collision. In other words, the other driver is arguing that you did something negligent and that action “contributed” to the cause of the crash. If the other party is successful, your compensation could be reduced, or your claim can be denied.

What is Contributory Negligence?

Contributory negligence measures the extent of your “fault” for an accident. Pure comparative negligence is the harshest of the negligence standards. Under this rule, if you contributed in any way to the accident, you cannot receive compensation for your injuries from another party. In other words, if you are one percent guilty and the other party is 99 percent guilty, you receive nothing.

In a modified version of the theory, the law prescribes a certain percentage of fault that is “acceptable.” For instance, the law may prescribe that you can be up to 50 percent at fault and still recover compensation, but if you are 50.1 percent at fault, you receive nothing.

Canada did use contributory negligence at one time, but it has adopted a less harsh theory of negligence called comparative negligence.

What is Comparative Negligence?

Comparative negligence allows you to recover some of your damages even if you contributed to the cause of the accident. However, your compensation is reduced by the percentage of your fault for the crash.

Comparative negligence “compares” the actions of all parties involved in the car accident to assign a percentage of fault to each party. In a pure comparative negligence system, you can be 99 percent at fault and still recover one percent of your damages. However, most jurisdictions use a modified version of comparative negligence.

In the modified version, you must have contributed less to the cause of the crash than the other parties. In other words, you must be less than one-half at fault for the wreck. If so, you can recover compensation for the accident from the other party.

Comparative Negligence and Compensation

As mentioned above, under comparative negligence, your compensation is reduced by the percentage of fault assigned to you for your collision.  For example, let’s assume you were speeding when another driver turned left in front of your vehicle. A jury might find both of you at fault for the crash.

The jury assigns 20 percent of the fault to you and 80 percent to the other driver. Therefore, if your damages totaled $100,000, the maximum you can receive for your claim is $80,000 (total damages less 20 percent). Comparative negligence can be applied in any accident case from traffic accidents and bicycle crashes to product liability cases and slip and fall claims.

As you can see, comparative fault can make a substantial difference in the amount of money you receive for your injuries. Insurance companies like to use comparative fault in cases to avoid paying full value for claims. Victims who are unfamiliar with the laws governing personal injury claims may believe they have no choice but to settle for a low amount. It is always in your best interest to consult with an experienced Ontario personal injury lawyer before accepting any settlement.

Don’t Let Your Claim Be Reduced Unfairly

The team of lawyers at Diamond and Diamond aggressively fight claims of comparative negligence to help you receive the maximum amount possible for your accident claim. Call our 24/7 injury hotline at 1-800-567-HURT or visit our website to speak to someone now. We offer free consultations and case evaluations.

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