If my employee sustains a work-related injury that was partly caused by his/her own negligence and partly my fault, would the compensation be reduced? If so, how would the percentage or level of such a reduction be determined?
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When a person suffers injury or damage partly due to his/her own fault and partly due to another person’s fault, there may have been contributory negligence. Contributory negligence refers to when the claimant contributes towards the cause of the accident. However, contributory negligence is not for the claimant to raise and prove. The defendant is the party who should be raising this point as a defence and proving the existence of the claimant’s contributory negligence.
Although a claim for damages or compensation cannot be defeated due to the injured person’s fault, the amount of compensation recoverable can be reduced or recovery can be barred if the injured person’s actions increased the likelihood of the occurrence of the incident. The percentage or level reduced would usually be based on what the court thinks just having considered the share of responsibility for the damage of the claimant (i.e. the injured person). Contributory negligence is usually expressed in the form of percentage. For more details regarding the apportionment of liability in case of contributory negligence, you may have a look at section 21 of the Law Amendment and Reform (Consolidation) Ordinance (Cap. 23).
It is also important to determine fault in an accident for insurance companies because the holder of the insurance policy may file an insurance claim for compensation that is covered under the policy. Hence, insurance companies would want to make sure that they would only be liable for the damages caused by their clients. They might do so by hiring defence lawyers to try to limit their responsibility as much as possible.
In relation to the estimated amount of reduction of the compensation, it is best for you to consult a lawyer for better advice and estimation.
Key takeaways
- Whether the compensation will be reduced would depend on whether there has been contributory negligence on the part of the claimant.
- The percentage/level reduced would be based on what the court thinks just having considered the share of responsibility for the damage of the claimant (i.e. the injured person).
