Contributory negligence is used in some cases to help determine how much compensation an injured employee receives – so, how does it work?

While most HR professionals will not have much responsibility regarding physical injury claims, they may be involved in the deliberation around psychological injury claims. So it’s worth them knowing that sometimes the amount awarded to such a claim will be mitigated by a legal concept called “contributory negligence”.

In Australia, the concept is an attempt to account for the fact that claims of negligence are rarely cut and dry. For example, if a building site fails to have required safety measures in place and a worker suffered a fall because of that, the employer will be found negligent. But often the worker’s behaviour also fails to meet safety standards – perhaps they didn’t follow correct procedures, or were even goofing around. If that’s the case, it’s likely that the employer’s injury claim payment will be reduced.

It seems simple enough, but determining differing levels of responsibility and negligence can get quite complicated. In the above example, it might seem as if the responsibility should be shared evenly. But lots of factors can change that. Did the employee have a compelling explanation for their own failures? Can the employer demonstrate that the employee had a history of poor safety behaviour?

Or, focussing on an area with more HR crossover, an employer that receives a psychological injury claim from a former worker complaining of harassment will tend to do worse in court if it has no policies around harassment and mental health when compared to an employer that does. And an employer who can prove they rigorously educate staff on those policies will tend to do better in court than an employer who fails to make those policies widely known.

But HR’s role can go beyond policy. For example, in a psychological injury claim, how HR responds to initial complaints from employees who later suffer such an injury may very well become evidence at a hearing.

Case study

In this case, an apprentice butcher was employed by labour hire service company Skillset, which contracted the apprentice to Ashcroft Supa IGA (the defendant). The apprentice was injured during his employment while working at the defendant’s premises. He was linking sausages when the trolley he was working on rolled away. In the rush to catch the trolley and the sausages that were falling off it, the apprentice slipped on sausage mince that was lying unseen beneath the trolley.

The plaintiff hit his back on the wall and suffered a ‘serious injury’, instantly feeling a pain in his lower back and leg. His condition worsened and he was treated with a spinal fusion.

The apprentice sued for damages against the defendant, and the defendant made a counter-claim against Skillset, on the grounds that:

• The defendant owed a duty of care to the plaintiff;
• The defendant had not breached its duty of care;
• If it had, the plaintiff was guilty of contributory negligence;
• Damages should be reduced by virtue of [section] 151Z(2) of the Workers Compensation Act 1987 (NSW) because of the negligence of the [apprentice’s] employer Skillset.

On top of that, the defendant sought to be indemnified as their insurer wouldn’t cover costs.

The defendant’s cross-claim was represented by Toby Tancred, who spoke to HRM.

Contributory negligence acts as a defence to a damages claim and, as relayed by Tancred, consists of two main parts:

• The negligence must in fact contribute to the injury; and
• There must be fault of negligence on the part of the plaintiff (in this case; the apprentice).

Senior counsel for the insurer argued that the apprentice had 50 per cent negligence, counsel for the defendant put the number at 25 per cent and counsel for the apprentice argued that, if there was any contributory negligence, that it would be between 0-10 per cent.

The apprentice sought $714,431 in damages, but due to contributory negligence and reductions resulting from section 151Z, he walked away with $578,689 in compensation.

So if the decision had favoured the insurer’s interpretation, the apprentice would have received something in the range of  $357,000. Alternatively the decision could have said there was zero contributory negligence and the apprentice would have walked away a figure much closer to $700,000.

A ‘reasonable person’

In cases where an employer’s main defence is contributory negligence, a judge needs to evaluate just how much contributory negligence a plaintiff exhibits, while using the standard of a reasonable person.

To evaluate a ‘reasonable person’, according to FindLaw, a judge uses an objective test where the plaintiff is measured against a fictional person who has an “ordinary degree of reason, prudence, care, foresight, or intelligence whose conduct, conclusion, or expectation in relation to a particular circumstance or fact” as the standard.

“For example, if the apprentice had some sort of learning difficulty that meant he couldn’t read then there would be a need to use the standard of a reasonable person. Would a reasonable person have been able to take notice of written instructions?” says Tancred.

The judge in this case decided the apprentice was of the reasonable person standard. “He impressed me as a very straightforward person who was careful and reliable in giving evidence and in answering questions.”

Once it had been established that the apprentice was a reasonable person, he had to decipher whether his evidence was reasonable too.

The apprentice’s evidence was as follows:

• Yes, he knew sausage mince was slippery;
• But he also knew qualified butchers had cleaned up prior to his task in linking sausages and;
• He didn’t look under the trolley as he trusted the area would be clean and without any hazardous materials.

Russell found that the apprentice’s only contributory negligence was that he knew the sausage mince was hazardous as it is a slippery substance.

“Looking for spilt sausage mince, and cleaning it up, was not a complex task,” he says.

“The [apprentice]…knew of the risk and knew how to take precautions for his own safety against the risk. That having been said, there is much force in the [apprentice’s] answer, to the effect that…the sausage mince [was] hidden underneath the tray of the trolley on which he was directed to work, the meat room floor looked to be clean, and he saw no reason to question whether qualified butchers had done a good job of cleaning or not.”

Due to this evaluation, Russell set the apprentice’s level of contributory negligence at 10 per cent. 

Subjective objectivity

There remains the question of how Russell arrived at this figure. He obviously went with a finding that was within the plaintiff’s suggested range of zero to 10 per cent. But why did he decide on 10 per cent as opposed to five per cent, or some other figure?

Interestingly, Tancred says there is no formula to follow when it comes to nominating a percentage for contributory negligence.

“The judge is left with his or her own evaluative judgement and they really don’t need to say much about why they have put it at a certain per cent,” he says.

“Judges will have regard to a person’s particular circumstances, as the judge did in this case, in referring to the fact that the [apprentice] was an inexperienced apprentice butcher surrounded by experienced and qualified butchers, and that was relevant to determining what the [apprentice] knew or should have known when determining the extent of his contributory negligence, but it is still an objective test.”

Tancred says that’s not the end of the matter. Unavoidably, a judge’s own sympathy when evaluating a case will play a part, even if it would be ideal that the decision was completely objective.

“You would like to think that judges don’t permit notions of sympathy for a plaintiff to be a factor in their decision making and I don’t think you’d ever get a judge expressing the fact that they are taking into account their own sympathy for an injured person in their decision making process,” he says.

It’s something of an unavoidable reality that the reputation or attitude of an injured employee could affect the findings around contributory negligence.

“If they are troublesome, evasive, overly defensive or aggressive and don’t answer questions or only answer questions to advance their own case then they could be assessed by the judge to be lacking in credibility,” says Tancred.