Contributory negligence can reduce compensation significantly when the injury is serious
I have pointed to the effect of a finding of contributory negligence elsewhere. The effect is greatest in the most severe injury cases, because the needs of the injured person are so great, and therefore expensive. If you are found to have contributed a percentage is fixed to identify your share of the blame for the accident, and that same percentage is shaved off the value of your compensation. A clear example of this effect was a motorcyclist who suffered a high level spinal injury which left him almost completely paralysed.
A Court decision said he was one third to blame, so one third was shaved from the value of his compensation. The only pure compensation given for this type of injury is the general damages for pain, suffering and loss of amenity (what can no longer be done), and the top end for compensation is £250,000. The real expense in such a case is the care regime. Employing carers all day every day is expensive, and is the reason some of these cases settle well above £5,000,000. The care regime cost is based on annual care cost projected forward based on the life expectancy of the injured person. A young person with a good life expectancy will need many years of care, and the need for a lot of money to pay for that care.
The problem in the example case was the one-third finding of contributory negligence. The fear for any compensation amount is that it will run out, but when you are down by one-third at the start, what chance is there for a good care regime and everything else which is necessary.
We cannot imagine what someone so severely paralysed experiences, particularly when fully aware of their circumstances. You might be able to imagine what is necessary to take a trip away from home for a day, and when you do you must not leave out an appropriately adapted vehicle, at least two people in case any lifting is necessary, a powered wheelchair, and the time and energy to take account of how long it all takes. In terms of compensation, all of this costs money, and lots of it. If you start with one-third off the compensation, you might just stay in bed or a wheelchair.
This accident was caused by a driver pulling out across the road from a petrol station. The driver did not see the bike approaching along a straight road. There are many explanations you can give for causing such an accident, but not seeing the motorcycle is not good enough. The law does allow the driver to try to prove the rider was travelling fast, and could have stopped or steered around the van if speed had been lower. One-third to blame was the Court’s decision, but that one-third is taken off the total value of the case, and effectively only funds a care regime for two-thirds of the anticipated lifespan.
We can say the result is unfair, but the injured person who cannot seek compensation might say it is better than having to rely on the bare minimum provided through the State benefit and NHS system.
My experience of dealing with such cases is always one of mixed feelings. You can only deal with the case in the best way possible, working with the client and family to provide as much financial help as possible. What is always humbling and cheering is the remarkable guts and fortitude shown by the injured person and those who rally round to support.
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