Contributory negligence in workers' compensation claims

If you’re injured at work and are partly to blame for your injury, insurance companies may try and deny your workers’ compensation claim. The legal term for this is ‘contributory negligence.’ Learn more about how Shine Lawyers’ workers compensation experts can help with your workers’ compensation claim, including if it’s been denied for contributory negligence.

What is contributory negligence? 

Contributory negligence is a legal term. In the context of workers’ compensation, contributory negligence is when you bear some responsibility for your workplace injury. You may have heard contributory negligence referred to as ‘contributory fault’ or ‘contributory liability.’ 

Contributory negligence in workers’ compensation claims 

Your employer is responsible for providing a safe workplace and system of work. As a worker, you’re responsible to take reasonable care of your health and safety at work.  A workers’ compensation insurer (or a court) may consider whether you have contributed to your injury through negligence in the workplace. 

The payout you may be entitled to could be impacted if: 

• The workers’ compensation insurer can prove you’ve been contributorily negligent for your workplace injury 

• A court finds you've been contributorily negligent for your workplace injury 

If you’re found to have been contributorily negligent, any workers’ compensation could be reduced depending on how the fault is split between you and your employer.

An example of contributory negligence in the workplace 

A 2015 Supreme Court of Queensland negligence in the workplace case was brought as both a statutory claim and under common law contributory negligence. The worker and employer were each found to be 50% contributorily negligent for the workplace injury. 

If you’re wondering ‘how to prove contributory negligence,’ the responsibility is on the employer to prove a worker’s contributory negligence for their workplace injury.

The case of Kennedy v Queensland Alumina Limited

Kennedy v Queensland Alumina Limited [2015] QSC 317 involved the degree to which Mr Kennedy was contributorily negligent for his workplace injury and how much any workers’ compensation should be impacted. 

Briefly, the circumstances of the case were: 

• Mr Kennedy was a 26-year-old alumina producer at Queensland Alumina Limited (QAL) when he suffered a workplace injury in January 2012 

• The injury happened when Mr Kennedy replaced part of a pipe that carried an extremely hot caustic solution. While replacing the part, the caustic solution splashed out and burned his left heel and ankle 

• Mr Kennedy brought a workplace negligence claim against QAL. His training and experience were in issue, as was whether QAL had provided a safe work system 

• QAL argued that Mr Kennedy contributed to his injury because he didn’t follow QAL’s safety procedures when working on the pipe 

• The Supreme Court found that two factors led to Mr Kennedy’s workplace injury: 

  • Mr Kennedy opened a valve instead of closing it. QAL was held liable for this because there wasn’t an adequate workplace system to make clear whether a worker was opening or closing a valve 

  • Mr Kennedy failed to prove (confirm) isolation of the caustic solution inside the pump section, in accordance with his training. Failing to prove isolation was a significant departure from QAL safety procedures, and so Mr Kennedy bore contributory negligence for his injury

• This meant that Mr Kennedy was found to be contributorily negligent and bore some responsibility for his workplace injury 

The impact of contributory negligence on a workers’ compensation claim 

The judge found that:   

• Mr Kennedy’s failure to follow his training was inconsistent with the care expected of a reasonable worker. This was why Mr Kennedy was found to have contributed to his injury and was contributorily negligent 

• Mr Kennedy and QAL were equally responsible for his workplace injuries  

Mr Kennedy’s workers’ compensation payment was reduced by 50% because he bore partly at fault, however he was able to access the remaining 50% due to his employer also being held negligent. Mr Kennedy appealed the decision, but it was dismissed. The appeal court upheld the determination of shared contributory negligence for Mr Kennedy’s workplace injury. 

What’s a “reasonable worker” in relation to negligence in the workplace? 

Courts can consider what a “reasonable person” would do, to help determine whether an injured worker should bear some contributory negligence for their injury. The worker’s conduct is compared against a hypothetical, ordinary Australian in the same work circumstances. 

The judge in Mr Kennedy’s case considered the common law principle relevant to negligence in the workplace. He referred to discussion made by the High Court of Australia in Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 which said: 

• “A worker will be guilty of contributory negligence if he [should have] reasonably ... foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury” 

• Where an employer has failed to use reasonable care to provide a safe system of work, which exposes workers to unnecessary risks, the question is whether in the circumstances, the worker’s conduct “amounted to mere inadvertence, inattention or misjudgment, or to negligence rendering him responsible in part for the damage”

Applied to Mr Kennedy’s case, the judge found that a “reasonable person” in his position would have followed his training with greater care, given the dangers involved in working with caustic solutions. 

The “reasonable person” standard can differ between states. It’s important to talk to a workers’ compensation lawyer in your state or territory about your workplace negligence claim. Shine Lawyers has over 40 branches across Australia. Even if you believe you were contributorily negligent in your injury circumstances, it’s important to seek legal advice about your specific situation. Contact Shine for an obligation-free initial consultation. 

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

If you’re injured while doing your job, Shine Lawyers can help. Get in touch today with Shine Lawyers’ expert workers’ compensation lawyers. You could also be entitled to benefits through your superannuation – our lawyers will explore all your options. 

Shine Lawyers offers our workers’ compensation legal services on a No Win No Fee* basis. A successful workers’ compensation claim could help you access the financial support you need to fund your treatment.