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The simple answer is yes. You could claim compensation for a fractured leg even if you were partly to blame for the accident. As car accident solicitors, we are often asked that question. Road traffic accident lawyers refer to this scenario as contributory negligence. If you were partly to blame for the accident, you could claim, but your compensation amount will be reduced relative to your share of the blame.

 We often deal with leg injury claims caused by different RTAs, such as motorcycle, cycling, pedestrian, or car accidents. Whatever caused the accident, we can help you seek compensation if we can prove negligence on the part of the other party to the accident.

 Common types of leg injuries that could lead to a compensation claim after a road traffic accident include-

 Soft tissue damage, including: 

• Cuts and lacerations.
• Damage to the ligaments, tendons, muscles, nerves, synovial membranes (connective tissue) and cartilage.

Leg fractures, including:  

• Broken femur, fibula, tibia, patella. 
• Compound fractures – where the bone shattered. 
• Avulsion fractures – where a small part of the bone is torn away from the main part of the bone. This often occurs when the ligaments are pulled during the accident.

Fractured bones often include soft tissue damage in the area of the fracture. 

How do we prove your claim?

To claim compensation for injuries after an RTA, we need to prove that the party you are claiming from (the defendant) was negligent.  

To prove negligence, we need to establish that: 

• The defendant had a duty of care towards you; and
• The accident occurred because they breached that duty of care.

 We also need to prove that your leg was fractured due to the accident, and you suffered damages. 

What is the duty of care? 

All road users have a duty to take reasonable care to avoid doing anything they can reasonably foresee would cause injury to others. The Road Traffic Act talks about “what would be expected of a competent and careful driver”. 

If the road user failed to exercise that level of care, they were negligent. Negligence can take many forms, such as: 

• Speeding.
• Road rage.
• The driver was distracted by looking at their mobile phone or navigation system.
• The driver pulled into the road without seeing the oncoming traffic, pedestrians, or misjudged the distance.
• A cyclist swerved in front of traffic.
• A motorcyclist overtook without indicating. 
• A driver overtook a cyclist but carelessly didn’t leave enough space for the cyclist.

As road accident solicitors, we know what evidence is needed to prove that the defendant breached the duty of care towards you.

What if you were also negligent? 

Let’s say you were hit by a car because you drove your motorcycle carelessly in a roundabout, fractured your leg because you were sitting with your feet up on the dashboard, failed to wear your seatbelt as a passenger in the accident, or you braked suddenly.

The car behind you crashed into you, or your leg was fractured partly because you didn’t wear protective footwear when motorcycling. What happens, then? 

As specialist solicitors for road accident claims, we often deal with these type of contributory negligence cases. 

What is contributory negligence? 

In essence, it means that you (the claimant) were partially to blame for the accident that caused your injury. However, this does not mean that you can’t claim. It simply means the compensation you will receive might be proportionally reduced. 

 The court will examine how much your actions “contributed” to the accident and your injury. That portion will be deducted from the compensation amount.

 It is easiest to explain contributory negligence by way of an example. We’ll pretend you are person A riding on your motorcycle, overtaking slow-moving cars. Your headlights are on, but you are driving at 60mph. Person B turned his vehicle into the road from a side road and collided with you. As a result, you fell off your motorcycle and fractured your leg.  

It could be easy to prove that the onus was on person B to ensure it was safe to enter the road. Therefore, his negligence caused the accident and your injury. However, person B says you were driving at an excessive speed when you approached the side road, and that is partly why he couldn’t avoid crashing into you. 

Suppose B succeeds in his claim for contributory negligence. In that case, the court may still award compensation to you, but it will be reduced relative to the extent that you can be blamed for the accident. If you were 30% to blame for the accident, you would only receive 70% of the compensation amount.

How do we prove who is to blame? 

Each case depends on its own set of facts and circumstances. Generally, we’ll build your case to prove that the defendant was negligent by presenting the following: 

• Accident reports – where and how the accident occurred, weather conditions, road surface conditions, visibility, etc.
• Medical records – proving the seriousness of your injury. In this case, it is essential the full extent of your leg injury is included – not just the fracture; we also need details of any soft tissue damage related to the fracture. It is important to obtain a treatment plan showing how your injury and recovery will impact the rest of your life. For example, you are not allowed to put weight on the leg for three months, or you must lie with your leg up, etc. 
• Witness statements – eye witness reports are a good way of showing exactly what happened.
• CCTV footage – Security cameras or dash-cams can provide critical evidence to establish who is to blame for the accident. 
• Photographs of the accident scene – showing the position of the vehicles, road markings, or any other aspects relevant to the cause of the accident.
• Police reports – if the police investigated the accident, copies of these reports could assist in apportioning blame.

 Proving negligence is not always straightforward, but our team of experienced car accident solicitors know what is needed to prove your claim, even if you are partly to blame for the accident.  

Who must prove contributory negligence? 

Once we establish the defendant was negligent, it is up to the defendant to plead and prove contributory negligence on your part. They must prove on a balance of probabilities the accident was partly your fault, and this fault partly caused your fractured leg.

 The court will consider what was reasonably expected of you in the circumstances. How would a reasonable person with a reasonable concern for their safety have acted in the same circumstances? 

In our example, if a reasonable person would have driven at 35mph, then the court could find contributory negligence on your part.

 How is road traffic accident compensation calculated when you are partly to blame? 

There is no fixed formula to decide the extent of your blame – it depends on the specific circumstances. Common sense should be used to determine cause and effect in your circumstances.

 The test is: 

• Was the accident partly due to your fault or negligence? 
• If so, to what extent? 

The court will then decide what is just and equitable when reducing your damage claim. 

 What damages can you claim? 

Road traffic compensation is split into two categories: 

• General damages – to cover your pain and suffering, both physical and psychological. It can also include loss of amenities (the impact on your social or domestic life).
• Special damages – to compensate you for financial expenses and losses due to your injury. This includes medical bills, loss of income and future loss of earnings, any home adaptations for your recovery period, rehabilitation costs, etc. 

 Whilst there are guidelines for compensation, no one can predict with 100% certainty what you will get. As specialist car accident claim solicitors, we can give you a reasonably accurate estimate based on your circumstances and our experience. Our team knows what evidence you need to support a compelling claim for damages.

 Is there a time limit to submit your claim?

When claiming compensation for a fractured leg, you must claim within three years from the date of your accident. If, for some reason, you are only diagnosed at a later date, then your three years start on the date that the fracture was diagnosed. 

 Conclusion

 The circumstances around a road traffic accident are often complex. This is especially true when the parties are blaming each other. Many people think they can’t claim at all if they are partly to blame. 

 As you now know, that is not true. While contributory negligence can be tricky, we have the skills and experience to help you build a strong compensation case, even if you are partly to blame.