Contributory negligence in New South Wales motor vehicle accident claims: what you need to know
Published on March 19, 2025 by Hanaan Indari
If you’re making a motor vehicle accident (MVA) claim in New South Wales, one important factor that can influence your compensation is contributory negligence. This legal concept applies when an injured party’s own actions or omissions are found to have played a role in the accident or the severity of their injuries. While this does not remove liability from the other party, it does reduce the amount of compensation awarded in proportion to the claimant’s level of responsibility. It is important to understand how it might impact your compensation claim.
For instance, if a claimant is considered 20% at fault, their total compensation will be reduced by 20%. Being aware of how contributory negligence is determined and the common situations where it applies can help claimants navigate the claims process more effectively.
Frequent causes of contributory negligence in MVAs
Various behaviours can lead to a finding of contributory negligence, including:
- Not wearing a seatbelt
If a claimant was not wearing a seatbelt at the time of the collision, they may be deemed partly responsible for the severity of their injuries. Courts assess whether seatbelt use would have lessened or prevented the harm suffered.
- Distractions while driving or walking
Using a mobile phone, adjusting the radio, eating, or engaging in other distractions while operating a vehicle or crossing the road can contribute to a finding of contributory negligence.
- Breaking traffic rules
Failing to stop at red lights or stop signs, exceeding the speed limit, or pedestrians jaywalking are common factors that can reduce compensation due to contributory negligence.
- Driving under the influence
If the claimant was impaired by alcohol or drugs at the time of the accident, it can significantly impact their compensation. Even if another party was primarily responsible, the claimant’s intoxication may lead to a significant reduction in their entitlement.
- Failure to wear a helmet
For motorcyclists and cyclists, the absence of a helmet can contribute to a finding of contributory negligence if it is determined that their injuries were worsened by the lack of head protection.
- Passenger responsibility
Passengers who willingly ride with a driver they know is intoxicated or driving recklessly may also be held partly responsible for their injuries.
Contributory negligence and children
Under NSW law, children under six years old are generally not considered contributorily negligent. This means that even if their actions contributed to the accident, they are still entitled to full compensation. For older children, contributory negligence is assessed based on their age, level of understanding, and ability to follow road safety rules.
How insurers establish contributory negligence
The onus is on insurers to prove contributory negligence. They must show, on the balance of probabilities, that the claimant’s actions contributed to the accident or the severity of their injuries. Evidence typically used includes:
- CCTV or dashcam footage
- Witness testimonies
- Police reports
- Medical evaluations
Minimising the impact of contributory negligence on your claim
Even if contributory negligence applies, you may still be entitled to significant compensation. Seeking legal advice can help challenge the insurer’s assessment and reduce the percentage of fault attributed to you. Some key approaches include:
- Demonstrating that the other party bore the greater share of responsibility
- Providing medical and expert reports supporting your claim
- Contesting the insurer’s contributory negligence calculations
Contributory negligence can significantly reduce the compensation awarded following a motor vehicle accident in NSW. Whether it arises from distracted driving, failure to wear a seatbelt, or other actions, understanding the assessment process is crucial for safeguarding your rights. Insurers may attempt to minimise payouts by attributing partial responsibility to claimants; however, legal representation can help ensure you receive fair compensation. If you are involved in a contributory negligence dispute, it is recommended you seek legal advice as early as possible.
Please note that this article does not constitute legal advice. If you are seeking professional advice on any legal matters, you can contact Carroll & O’Dea Lawyers on 1800 059 278 or via our Contact Page and one of our lawyers will be able to assist you. If you or a loved one have been injured, use our Personal injury Claim Check now.
Disclosure and important note: This article is based on our own legal research and thinking. Some of its content has been generated with the assistance of artificial intelligence. The authors have checked and approved this article, including the AI generated content, for publication.
