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Determining fault

In any court action for damages a person wanting to make a claim (the applicant) must prove that the other person (the respondent) has been negligent. To show this the applicant will need to prove that the respondent owed a duty to take care and breached that duty and as a result the applicant suffered loss or damage.

Whether or not the respondent has been negligent will depend on all the circumstances of the accident. Drivers of motor vehicles owe a duty to take care to all fellow road users, their passengers and pedestrians. Some of the more common breaches of the duty to take care are:

  • driving at a speed excessive in the circumstances
  • failing to keep a proper lookout for other traffic and road users
  • entering an intersection without regard for other traffic which may also be entering that intersection
  • driving the vehicle with insufficient control, for example because of intoxication by alcohol or drugs.

The fact that a driver has committed a breach of the road traffic laws does not necessarily mean she or he has been negligent [see Sibley v Kais [1967] HCA 43; (1967) 118 CLR 424]. It is only one of the factors which must be considered. All the surrounding factors at the time of the accident must be considered.

If a driver is charged with a criminal offence arising out of the accident and pleads guilty, this may be used as an admission of liability in the civil case. Legal advice should therefore be sought before the criminal case is heard. If however a driver is given an expiation notice and pays the fine, this is not an admission of liability. Anyone in doubt about whether the other driver was at fault should consult a private lawyer or get advice from one of our offices or a community legal service.

In many cases, it is impossible to say that only one party was at fault. In such a case, a court can apportion (share) the damages between the parties according to the degree of each one's responsibility. Where a party shares responsibility for an accident, that party is said to have been guilty of contributory negligence.

Contributory negligence occurs in accidents at intersections where, for example, the driver of the vehicle with right of way may be held 25% responsible. This is because every driver is supposed to drive safely in all circumstances. Thus failure to take reasonable steps to avoid an accident (perhaps because of excessive speed) may lead a court to find that the driver is partly responsible for the accident.

Part 7 of the Civil Liability Act 1936 (SA) does set out some instances (such as where a passenger fails to wear a seat belt or a cyclist fails to wear a safety helmet) where damages will be automatically apportioned (see Reduction of claims below).

Apportionment is not otherwise determined by legislation but instead is dependent upon all the relevant details of the accident. In some cases a person may recover 100% of her or his damages (for example, if the car was stationary and was hit by another car) but the possibility of apportionment must be considered. A person is not 10% at fault simply for being on the road.

Anyone unsure as to the extent of each person's fault should seek legal advice from the Commission or a community legal service or consult a private lawyer.


A's car and B's collide at an intersection. Each suffers $500 damages.

A sues B for $500 and B counter-claims (sues A) for the same amount.

B is found 80% responsible and A is 20% responsible.

A gets 80% of $500 = $400

B gets 20% of $500 = $100

'A' will be awarded damages of $400 less $100 = $300. In addition the court may order B to pay legal costs of say $150. This may be insufficient to fully reimburse A for payment to a solicitor. For example, A may have to pay the solicitor $250, leaving only $200 to cover damage to the car. If the cost of B's repairs is higher than A's, A may get nothing.

Determining fault  :  Last Revised: Fri May 22nd 2020
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.