If you were injured as a passenger in a motor vehicle accident in NSW, you might assume fault is irrelevant. After all, you weren’t driving. However, many injured passengers are surprised to receive a letter from the insurer alleging contributory negligence, meaning they are said to have contributed to their own injuries.
You may first encounter this issue in a liability notice under the CTP scheme, in settlement negotiations, or when an insurer argues that compensation should be reduced. In some cases, allegations arise because the passenger was not wearing a seatbelt, accepted a lift from an intoxicated driver, or interfered with the driver before the crash.
Understanding how contributory negligence is assessed is critical, as it can significantly reduce the compensation payable.
What Is Contributory Negligence?
Contributory negligence arises where an injured person’s own conduct contributed to the harm they suffered.
In NSW motor accident claims, this is assessed under the Motor Accident Injuries Act 2017 and broader principles of negligence law. If contributory negligence is established, the injured person’s damages can be reduced by a percentage reflecting their share of responsibility.
For passengers, the issue is not about causing the accident itself, but about whether their conduct increased the risk or severity of injury.
Can a Passenger Really Be Found at Fault?
A motor vehicle passenger can be found at fault in specific circumstances.
- Failing to wear a seatbelt
- Travelling with a driver known to be intoxicated
- Getting into a vehicle with a driver known to be fatigued or unlicensed
- Distracting or interfering with the driver
However, each case depends on evidence. The court or insurer must assess whether a reasonable person in the passenger’s position would have foreseen the risk and acted differently. Importantly, being a passenger does not automatically make you partly responsible. The insurer bears the onus of proving contributory negligence.
How Is Contributory Negligence Assessed?
Contributory negligence assessment involves a two-step analysis:
- Determining whether the passenger failed to take reasonable care for their own safety.
- Determining the percentage reduction that should apply.
For example, failure to wear a seatbelt may result in a reduction if medical evidence shows that injuries would likely have been less severe had a seatbelt been worn. In some cases, statutory presumptions apply regarding seatbelt use.
Where intoxication of the driver is involved, the question becomes whether the passenger knew, or ought reasonably to have known, that the driver was affected by alcohol or drugs.
If disputed, these issues may ultimately be determined by the Personal Injury Commission or, in certain common law claims, by a court.
What Percentage Reductions Apply?
There is no fixed percentage in most cases. Reductions are assessed based on the facts and the degree of contribution to the injuries.
For example:
- Minor contributions may result in a modest reduction.
- More serious findings, such as knowingly travelling with a heavily intoxicated driver, can result in significant percentage reductions.
The assessment is not punitive. It is designed to reflect relative responsibility.
Does Contributory Negligence Affect All Types of Compensation?
Contributory negligence can affect:
- Damages for pain and suffering
- Economic loss
- Future care and treatment costs
In statutory benefits claims under the NSW CTP scheme, contributory negligence may also affect entitlements to certain benefits beyond the initial relevant period after the accident.
Because reductions apply to the overall compensation amount, even a 10–20% finding can have substantial financial consequences.
How Can A Compensation Lawyer Assist?
Allegations of contributory negligence are often raised strategically by insurers to limit liability exposure. These allegations must be supported by evidence.
The motor accident compensation lawyers at Law Advice assist injured passengers by:
- Carefully reviewing police reports and accident evidence
- Examining whether statutory presumptions properly apply
- Obtaining medical evidence regarding injury causation
- Challenging unsupported percentage reductions
- Representing clients in disputes before the Personal Injury Commission
They understand how contributory negligence arguments are framed and how decision-makers assess foreseeability, causation, and proportional responsibility.