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Am I at fault? Contributory negligence in workers compensation claims


If you are injured at work and are partly to blame, insurance companies may try and deny your workers compensation claim. At Shine Lawyers, workers compensation experts can help you access more of the compensation payment you deserve. Our teams can also help you access benefits you’re entitled to through your superannuation and insurance.

What is contributory negligence?

If a worker's injuries are partially their own fault, a court may find them contributorily negligent. Insurance companies could try and argue workers are to blame for what went wrong and in doing so, any compensation payment could be reduced depending on how the fault is split between the employer and the worker.

In the 2015 case Kennedy v Queensland Alumina Limited. injured worker Paul Kennedy was found partly at fault for his injuries. However, even though Paul was partially responsibility for causing the injuries he suffered, his employer is still responsible for providing a safe working environment. Because of this, Paul was able to access a partial compensation payment.

Contributory Negligence Examples: Kennedy v Queensland Alumina Limited

Paul was working on a pipe which contained caustic solution, a highly corrosive material which can burn the skin if touched. Paul opened the pipe without isolating it from an overhead tank, causing solution to splash out and burn his left heel and ankle.

Paul commenced a negligence claim against his employer, Queensland Alumina Limited. The employer argued Paul was contributorily negligent, as he had failed to follow his training when working on the pipe.

The judge considered Paul’s failure to follow his training inconsistent with the care expected of a reasonable worker and ruled him contributorily negligent. The judge said Paul was equally responsible with his employer for his injuries. Paul’s compensation payment was reduced by 50% because he was at fault, however he was able to access the remaining 50% due to his employer also being at fault.

What is the standard of the reasonable worker?

In Paul's case, the reasonable person test suggested an ordinary worker in Paul’s position would have followed his training with greater care, given the dangers involved in working with caustic solution.

The reasonable person test is used to find whether an injured worker should bear some responsibility. This is determined by comparing the injured worker’s conduct against a hypothetical, ordinary Australian.

The reasonable person standard can differ between states, so you should talk to a lawyer for advice specific to your region.

Have you been injured in the workplace? Talk to Shine Lawyers

If you’re injured while doing your job, you don’t have to go it alone. Get in touch today with Shine Lawyers’ expert workers compensation lawyers. You may be entitled to benefits through your superannuation – our lawyers will explore all your options.

Shine Lawyers offers our workers compensation claims with a No Win No Fee Guarantee* – if you’re claim isn’t successful, you won’t have to pay legal fees. A successful claim could help you access care and support while you get back on your feet.

Written by Shine Lawyers. Last modified: October 27, 2020.

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