If you’ve been injured and were partly responsible, there is something called, “contributory negligence,” that could significantly reduce your compensation in Queensland and other Australian states.
Whether your claim arises from a road accident, workplace injury, or public place fall, understanding how contributory negligence works can make or break your case.
What Is Contributory Negligence in Queensland?
Contributory negligence occurs when an injured person (the plaintiff) fails to take reasonable care for their own safety, and that failure contributes to the injury or accident. In simple terms, you played a part in your own harm. However, it’s up to the defendant to prove that contributory negligence applies.
Under Section 10 of the Law Reform Act 1995 (Qld), if you’re partly responsible for your injury, the court may reduce your compensation in line with your level of fault. For example, being found 40% at fault could mean a 40% reduction in your payout. Therefore, if your damages are calculated at $200,000, you’ll only receive $120,000.
In some cases, you could lose the full amount, per Section 24 of the Civil Liability Act 2003(Qld) and Section 305G of the Workers’ Compensation and Rehabilitation Act 2003 (Qld).
How contributory negligence applies to different claims
1. Motor vehicle accident claims
Road crash claims often involve shared blame. Courts scrutinise all parties’ behaviour and compare the seriousness of each person’s departure from their duty of care.
Common Examples:
- Not wearing a seatbelt – automatic reduction is likely.
- Texting while driving or distracted driving – considered a major lapse.
- Riding with an intoxicated driver – could lead to a significant reduction.
- Pedestrian running onto the road – often seen as a substantial contributing act.
Case highlight 1: Joslyn v Berryman
In Joslyn v Berryman Wentworth Shire Council v Berryman [2003] HCA 34, the High Court clarified when intoxicated passengers can be found contributorily negligent, emphasising that courts must consider the entire course of conduct leading to an accident, not just the immediate moment before it occurred.
Mr Berryman suffered serious injuries when Ms Joslyn’s car overturned on a bend. Both had been drinking heavily for days – Mr Berryman’s blood alcohol was 0.19g/100mL and Ms Joslyn’s was 0.138g/100mL at impact.
The trial judge found Berryman 25% contributorily negligent for allowing an intoxicated, unlicensed driver to take his keys when he became too tired to drive. The NSW Court of Appeal overturned this, ruling Joslyn showed no obvious signs of intoxication when taking over driving.
High Court’s key findings:
- Broader temporal focus required – Courts must examine “entire course of conduct” from when drinking began
- Self-induced incapacity is not a defence – Passengers cannot escape liability by claiming intoxication prevented rational decisions
- Statutory obligations apply – Motor Accidents Act mandates findings when passengers “ought to have been aware” of driver impairment
- Foreseeability is key – Mr Berryman “ought to have known” what might occur when setting out to Mildura
- Appearance less significant – Driver’s sober appearance at handover was “much less significant” when both drank together extensively
Key takeaway: Intoxicated passengers who enable impaired driving face contributory negligence findings even if their own intoxication affected judgment.
Case highlight 2: Allianz Australia Insurance Limited v Eden [2024] QCA 49
2. Public liability claims
In these claims, such as slip-and-fall injuries in public or commercial spaces, contributory negligence is assessed by comparing your behaviour to that of a “reasonable person”.
Typical scenarios:
- Wearing slippery footwear in a wet area.
- Ignoring clear hazard signs.
- Entering restricted or obviously dangerous zones.
- Participating in risky recreational activities without precautions.
Case highlight: Rodd v Hall
In Rodd v Hall [2019] NSWSC 1304, the court awarded damages to a motel guest who slipped on wet bathroom tiles but reduced her compensation by 20% for contributory negligence, showing how courts balance occupier liability with personal responsibility.
Ms Rodd fractured her hip slipping on wet tiles in her motel bathroom. The court found the motel primarily liable for poor shower design that allowed water to flow onto walkways, but also found Rodd 20% at fault for failing to keep a proper lookout despite knowing the floor could still be wet.
Contributory negligence findings:
- 20% reduction applied for failure to watch where she stepped
- Knowledge of risk – She knew tiles were slippery when wet and had seen water beyond her towels
- Reasonable expectation – Should have kept proper lookout when walking toward the vanity
- Court’s balance – Recognised her cleanup efforts but found vigilance insufficient
Key takeaway: Courts will reduce damages when plaintiffs fail to exercise reasonable care despite knowing about hazards, even when property owners are primarily at fault for dangerous conditions.
3. Workers compensation and common law claims
Queensland’s no-fault workers compensation scheme covers most injuries—but if you sue your employer for negligence under common law, contributory negligence may reduce your payout.
Examples that may trigger reduction:
- Failing to wear PPE despite being trained and provided with it.
- Ignoring safe work procedures.
- Performing work duties while affected by alcohol or drugs.
- Not reporting symptoms or continuing unsafe work practices.
Case highlight 1: Kennedy v Queensland Alumina Limited
In Kennedy v Queensland Alumina Limited [2015] QSC 317, the Court found a worker 50% contributorily negligent for ignoring safety procedures when breaking into pipework containing caustic solution, despite the employer’s liability for inadequate valve marking.
Mr Kennedy suffered severe caustic burns while replacing a “blind” in pipework at night. Queensland Alumina Limited was liable for failing to provide adequate valve marking – scale buildup obscured symbols, causing Mr Kennedy to accidentally open instead of close the suction valve. However, Justice McMeekin found Kennedy substantially at fault for ignoring training that required him to “prove isolation” before breaking into potentially energised pipework.
Contributory negligence findings:
- A 50% reduction was applied – Mr Kennedy’s breach of safety protocols had a clearly substantial impact on the outcome.
- Failed to prove isolation – Broke into pipework without required probe procedures to confirm no caustic solution remained
- Ignored training – Had been taught never to “trust a valve” and must prove system isolation before opening
- Knew the risks – Admitted being “well aware” that caustic solution would cause severe burns
- Engaged in risky shortcuts – Behaviour that exceeded simple oversight or minor errors in judgement.
Key takeaway: Workers who ignore established safety procedures face substantial compensation reductions even when employers are also liable for safety system failures.
Case highlight 2: Longbottom v L & R Collins
In Longbottom v L & R Collins Pty Ltd [2021] QSC 242, the Court found a banana farm worker 10% contributorily negligent for positioning himself under a heavy bunch of bananas despite knowing the risks, while holding his employer primarily liable for inadequate training.
Mr Longbottom was working as a “humper” (banana catcher) when a fellow worker made an excessively large cut in a banana tree, causing it to collapse on him with a 70-kilogram bunch of bananas. The court found the employer primarily liable for failing to train workers in safe methods for harvesting large bunches from tall trees, but also found Longbottom partly at fault for disregarding basic safety principles.
Contributory negligence findings:
- 10% reduction applied – Failed to stand clear while the initial cut was made
- Knowledge of risk – Admitted knowing “risk of being hit by a falling bunch of bananas with the tree attached”
- Disregarded obvious safety – Positioned himself under a very tall tree with heavy bananas he couldn’t reach
- Training received – Had been instructed to stand clear and watch the cutter during initial cuts
- Common sense ignored – Court found “ordinary prudence would indicate the danger”
Key Takeaway: Workers who ignore obvious safety risks face proportional compensation reductions even when employers are primarily responsible for workplace accidents.
Mandatory reduction for intoxication
Under Sections 47 to 49 of the Civil Liability Act, if the injured person was intoxicated and that intoxication contributed to the injury, the law requires a reduction in damages. Courts generally apply a minimum 25% reduction, but it can be higher depending on the circumstances.
This applies whether you’re the plaintiff, the defendant, or both—so long as intoxication played a role in the accident.
How courts decide fault and apportionment
In Queensland, courts look at both parties’ conduct leading up to the accident. The court compares how far each person departed from their expected duty of care.
The aim is fairness.
For example:
- If both the injured person and the at-fault party were careless, but the injured person’s behaviour was more reckless, their compensation could be reduced by 60% or more.
- If your behaviour was only a minor lapse (e.g., momentary distraction), courts may only reduce damages by 10–25%.
Here’s how contributory negligence percentages typically play out:
|
Type of conduct |
Estimated fault reduction |
|
Minor mistake or lapse in judgment |
10–25% |
|
Ignoring warning signs or unsafe acts |
25–50% |
|
Reckless or highly dangerous behaviour |
50–80% |
| Complete responsibility |
Up to 100% |
Defending against contributory negligence allegations
To protect your compensation, you’ll need to show your actions were reasonable in the circumstances. Key strategies include:
- Preserving evidence: Witnesses, CCTV, photos, and incident reports.
- Expert opinions: From safety consultants, engineers, or medical specialists.
- Detailed documentation: Medical records, training history, or workplace policies.
- Proving the risk wasn’t obvious: Courts are less likely to reduce damages if the danger was hidden or unexpected.
Remember, the burden of proof is on the defendant to show that you were negligent.
Impact on your compensation
Contributory negligence affects all types of damages:
- Past and future medical costs
- Loss of earnings and superannuation
- Pain and suffering
- Ongoing care needs and rehabilitation
In a nutshell
In Queensland, contributory negligence has the potential to reduce your compensation entitlements, but your right to make a claim is not compromised. In other words, even if you had in part contributed to the accident, you should still talk to us about making a claim.
Maximising your compensation
Our Personal Injury Lawyers in Brisbane, Gold Coast, Logan, Maroochydore, and Noosa are highly experienced in handling diverse types of compensation claims. We work strategically to minimise any blame attributed to you by:
- Thoroughly investigating the facts
- Engaging credible expert witnesses
- Gathering evidence to prove your conduct was reasonable
- Challenging unfair fault apportionments during negotiations or in court
We understand the tactics insurers use and how to counter them. Whether your injury occurred on the road, at work, or in a public place, we’re here to ensure your rights are protected and your compensation is maximised, no win no fee.
Get in touch with us today for a confidential, obligation-free case review. Better days ahead!