Contributory negligence in Compensation Claims – How Can it Reduce the Compensation Amount You Deserve?
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What is the meaning of “Contributory negligence” in tort suits? Contributory negligence is a term meaning that despite injury and bodily damages caused to a person, this person still bears some fault in the occurrence of the damage caused to them. A contributory fault argument is usually raised by defendants in tort compensation suits, and if it is accepted, the relative part (percent) of the injured parties’ liability to the damages is reduced from the amount of compensation awarded to them.
Contributory liability and contributory fault in tort suits – what does it actually mean?
We all might encounter situations where damage is caused to us in a manner that grants us the right to sue for monetary compensation. Such situations can include road accidents, work accidents, negligent medical care by medical staff/providers, various fall accidents, injury during a fight or a brawl, and so on. In cases where suit is filed with respect to any of these events, the defendants might raise a defense argument, according to which even if they are found as liable to the damage, the plaintiffs must also bear a certain measure of liability to their own damages.
In legal terms, this defense argument is called “contributory negligence” or “contributory liability.” This is a unique defense argument, since it does not remove the defendants’ liability to the damage to which they are responsible. Rather, it might lead to a deduction of the compensation amount they must pay out, and significantly reduce it. For example, if a person injured in an accident was awarded compensation in the amount of ILS 1 million, but the court decides that they bear contributory liability to the accident at a rate of 50%, then the compensation awarded in actuality would be ILS 0.5 million, and that person would “lose” ILS 0.5 million out of the amount of damages, as estimated by the court.
How do courts make a decision in suits that include a contributory fault argument?
The courts make a decision on contributory fault arguments, raised in tort compensation suits, according to the circumstances of the case, the testimonies heard, additional evidence presented to the court, etc. For example: let’s say a person sued for damages with respect to an accident caused to them, and the defendant argued in their defense that the plaintiff (the injured party) bears contributory liability. The court will examine the circumstances and evidence in the case, and based on its impression, will decide whether the plaintiff is indeed at certain fault for the damages caused to them.
If the court accepts the defendant’s argument, it might reduce a certain amount (mostly in percentages) out of the full amount of compensation. It’s important to note that in light of the fact that in many cases, it’s difficult to quantify the plaintiffs’ liability to the damage caused to them, sometimes decision on these arguments is made “normatively,” meaning, based on the court’s assessment of all circumstances, rather than just based on the actual facts. Below, we present examples from court rulings made in this area, illustrating the manner in which courts recognize contributory fault or contributory liability arguments according to the circumstances of the case.
Contributory fault in road accidents
Compensation claims with respect to vehicle accident injuries are mostly conducted against the insurance companies. Naturally, insurance companies would rather pay a compensation amount that is as small as possible. In light of this, insurance companies often use the argument of contributory liability to the occurrence of the accident itself, or failure to mitigate the damage on part of road accident victims (for example, when the injured parties delayed before seeking medical care).
For example, in 2019, the Supreme Court (case no. CA 7099/16) ruled on a suit concerning a road accident in which a car and an off-road motorcycle crashed while crossing a junction. The motorcycle driver was driving without a license, without mandatory insurance, and without a helmet. In addition, no front headlight was installed on the motorcycle, and the driver was wearing a dark shirt. Following the accident, the motorcycle driver suffered multi-system trauma and a severe head injury. Even after surgeries and rehabilitation, he remained blind, with severe physical and cognitive damage, and ambulated using a wheelchair.
In light of the fact that the motorcycle driver was driving without mandatory insurance, he was not eligible to sue for compensation under the Road Accident Victims Compensation Law, and instead filed a tort compensation suit against the driver of the vehicle that hit him, and the driver’s insurance company. Even though the driver of the car was found liable for the accident, the court determined that the circumstances indicated that the motorcycle driver also contributed to the damages caused to him, at a rate of 65%. This determination led to the reduction of the compensation amount from a total of approximately ILS 14 million (the total estimated damage) to approximately ILS 1.5 million (following a pension deduction from the National Insurance Institute).
The motorcycle driver appealed this ruling to the Supreme Court, which determined that under the circumstances of the case, the determination of contributory fault should remain standing; however, the rate of the motorcycle driver’s liability should be reduced to 40%, since, in the court’s opinion, under the circumstances of this case, estimating the car driver’s liability at such a low rate (of only 35%) has failed to appropriately reflect the weight of his negligence while entering the junction. The court saw this as a needlessly strict, and raised the rate of compensation awarded to the motorcycle driver, by lowering the rate of liability attributed to him.
Contributory negligence in work accidents
Work accident cases are different from road accidents cases, in light of the tendency to recognize the greater liability that employers and workplaces bear to their employees’ safety, and as a result, the lesser liability of employees to the damages caused to them. For example, in 2021, the Supreme Court ruled (in case no. CA 7096/19) on a suit concerning the fall from height of an employee at a construction site. In its defense, the employer argued that the plaintiff should be attributed contributory fault. In its ruling, the court addressed the need for strictness as concerning the employer, in light of its ability to prevent accidents much more effectively than employees. Concurrently, it was determined that no contributory fault should be attributed to the employee under the circumstances of the matter.
However, in cases where the facts make it clear that the employee is at some fault regarding the occurrence of the accident, this might serve as a basis for contributory fault, which would reduce the amount of compensation awarded to them with respect to the accident. For example, in a 2015 ruling by the Afula Magistrate’s Court (case no. CC 14728-01-12), the court awarded compensation to a kitchen worker at a restaurant in Pardes Hanna, after the worker slipped on an oil stain, which caused him severe injuries, including a tendon rupture. The court did award compensation to the worker; however it determined that since this was an experience worker, who knew about the restaurant’s safety hazards and failed to alert his employer about them, then contributory fault should be attributed to the employee at a rate of 15%. Thus the total amount of compensation awarded to the worker stood at approximately ILS 246.5 thousand.
Contributory fault in slip and fall accidents
As concerning slip and fall accidents, or fall accidents, the circumstances in which the accident took place are highly important, such as the nature of the location (a business, a public area, a private area, etc.). Thus for example, in a 2014 ruling by the Jerusalem Magistrate’s Court (case no. CC 58563-07-12), a driver filed suit against a gas station after having slipped on an oil stain, causing her to fall and suffer bodily injury. In its defense, the operator of the gas station argued that the driver should bear certain liability with respect to the fall, and that she should be attributed contributory fault. The court dismissed the station operator’s arguments, and determined that due to the nature of the place, the gas station was negligent in failing to remove the oil stain. Concurrently, it is not appropriate to attribute to the driver any contribution to the damage caused to her.
Contact a lawyer specializing in torts law
The examples presented above illustrate how each case in which a contributory fault argument is raised, as part of various tort suits, is examined according to its own circumstances, in order to decide whether to accept to argument and reduce the amount of compensation awarded to the plaintiffs. In many cases, this argument is dismissed, or a low percentage of contributory fault is attributed, thus not leading to a significant deduction in the compensation amount.
If you have any specific questions about this topic, or need any legal advice or assistance with any issue, you’re welcome to contact our law firm, and we’ll be happy to help. Our law firm, located in Jerusalem and Tel Aviv, specialized in torts law and represents people injured in accidents and various negligence cases in a broad variety of legal areas, both in all Israeli courts, and with the National Insurance Institute and insurance companies.
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