Contributory negligence in NSW dependency and mental harm claims
Published on July 17, 2025 by Bill Madden and Matilda Lynch
In New South Wales, claims for compensation following a death or psychiatric injury can involve complex intersections of statutory and common law. An important factor in assessing such claims is the extent to which contributory negligence—either by the injured or deceased person, or the claimant—may impact the damages awarded. This article examines how contributory negligence is addressed in both dependency claims and claims for mental harm, referencing key legislative provisions and recent case law.
Mental Harm Claims
Under Part 3 of the Civil Liability Act 2002 (NSW) (‘CLA’), if someone’s negligence has caused the injury to, or death of, another person (‘the victim’), a claim for compensation can be made by close members of the family of the victim (i.e. a parent, a partner or a child), or by someone who witnessed, at the scene, the victim being killed, injured or put in peril. The person wishing to make a claim must have suffered a recognised psychiatric illness in order to receive compensation.
Compensation in such claims can only be awarded for the consequences of the mental harm occasioned, not for the negligence itself. Compensation can include items such as income loss, treatment expenses, care costs and non-economic loss (pain and suffering), of the person who has suffered the mental harm.
Dependency Claims
Additionally, or alternatively, when the death of a person is caused by the negligence of another, compensation is available to close relatives who were dependent on the person who has died: Compensation to Relatives Act 1897 (NSW). Such claims may include funeral costs, loss of financial support and loss of services. However, at present there is some uncertainty in the law regarding loss of services.
Contributory Negligence
One factor that can influence the amount of compensation that is available for persons compensated in mental harm and dependency claims is whether there was contributory negligence on the part of the plaintiff (the person making the claim) or of the victim (the person killed or injured). Contributory negligence can reduce the damages available to the person making the claim, or in rare cases can defeat a claim entirely.
It wasn’t always the case that the contributory negligence of the victim could reduce the damages available to the person making a claim. Prior to the enactment of the CLA, the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) s 13 precluded the consideration of contributory negligence in dependency cases.
However, now under s 5T of the CLA, a court is entitled to have regard to the contributory negligence of the deceased person in a claim for damages brought under the Compensation to Relatives Act 1897 (NSW).
Similarly, under s 30(3) of the CLA, any damages to be awarded to the plaintiff for pure mental harm are to be reduced in the same proportion as any reduction in the damages that may be recovered from the defendant by or through the victim on the basis of the contributory negligence of the victim.
Cases
The following are examples of where contributory negligence would have or did reduce the compensation available to the plaintiff making a claim for mental harm and/or dependency:
- Lee v Carlton Crest Hotel (Sydney) Pty Ltd [2014] NSWSC 1280 (19 September 2014): damages for mental harm and dependency to be reduced by 20% due to the contributory negligence of the deceased, in circumstances where he had applied some accelerating force whilst reversing his car in a car park (but ultimately had no knowledge of a faulty wheel stop and inadequate railing, which led to his car falling off the edge of the car park).
- Goddard v Central Coast Health Network [2013] NSWSC 1932 (19 December 2013): Justice Adamson did not find that the first plaintiff was entitled to damages for mental harm, however even if she had, she noted she would have reduced them to nil on account of the plaintiff and the deceased’s contributory negligence. Her Honour found their conduct fell far short of the standard required of a reasonable person in their positions, in not contacting the deceased’s doctor nor returning to hospital when it was apparent her condition was deteriorating.
- Hodson v Hurex Pty Ltd and Lederer Pty Ltd [2024] NSWDC 143 (26 April 2024): in this matter the damages for mental harm were reduced by 10% for the plaintiff’s own contributory negligence, as he had returned to the scene of a fatal accident of his own initiative.
Potential damages reductions for contributory negligence in both dependency and mental harm claims underscores the importance of assessing the conduct of all parties involved. Legal practitioners must consider not only the primary negligence of the defendant, but also any actions or omissions by the deceased or the claimant that may impact the final award of damages. As these cases illustrate, the apportionment of responsibility can significantly alter the outcome of a claim, and careful factual analysis is essential in every case.
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.
