Contributory negligence and contribution of the claimant

Contribution of the claimant

At common law in an action for negligence causing personal injury a complete defence existed if the defendant proved the claimant to have directly contributed to his injury.

However, the Law Reform (Contributory Negligence) Act 1945 provides that whenever such a claim arises and in the course of the trial it is established that the injuries are caused partly by the defendants’ negligence but also with the contribution of the claimant, the cause of action is not defeated by the fault of the person suffering harm. The new provision allows for the defendant to be found guilty but his liability to be reduced to the extent of the claimant’s contribution.

When is a person contributory negligent

The principle applies firstly to negligence claims that have resulted in personal injury and where the claimant is seeking compensation. In addition, the provision also applies to contractual liability where such is based on a failure to exercise reasonable skill and care and that failure also constituted negligence as an actionable tort.  However, it is important to note that such does not operate to defeat any defence arising under contract. Further, it does not raise the limit of damages recoverable where any contract or enactment provides for the limitation of liability.

In principle, any person who seeks damages can be found to have contributed to the damage sustained through his own actions. When it comes to children there is no bar on minors being contributory negligent. However, whether a child has acted in such a way depends on the nature of the danger involved and on that child’s ability to appreciate that danger.

Proving the contribution

Whenever contributory negligence becomes a question in court, the defendant bears the burden to prove that the claimant’s negligence. As such it needs to be established that it was a cause of the harm, which he has suffered as a consequence of the defendant’s negligence. Therefore, the focus is on the causation of the harm, rather than who has the last opportunity of avoiding the mischief.

Further, the existence of contributory negligence does not depend on any duty owed by the claimant to the defendant. Therefore, causation is of essence and not any existing precondition of the relationship between the two parties.

There is a further element for establishing contribution of the claimant and it requires the foreseeability of harm to oneself. A person is guilty of contributory negligence if he ought to reasonably have foreseen that, if he did not act as a reasonable person, he might sustain injuries.

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