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.
Knowledge by the claimant of an existing danger or of the defendant’s negligence may be an important element in determining whether or not he has been guilty of contributory negligence. The question is not whether the claimant realised the danger but whether the facts which he knew would have caused a reasonable person in his position to realise the danger. Therefore, the objective answer of realisation of danger is the basis of contribution by the claimant.
The assessment of damages
Whenever, a claimant is found to have contributed to the damage suffered, the amount of damages recoverable are reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage. In the course of the assessment, the court has regard both to the blameworthiness of each party as well as the relative importance of the acts in causing the damage.
Where two or more defendants are liable for the same damage, the claimant’s contributory negligence should be assessed by comparing his conduct with the totality of the defendants’ negligence. Therefore, it should not be considered in the context of the extent to which each individual defendant contributed to the accident.
Taking into consideration costs, even a partially successful claimant is entitled to recover the full extent of his costs on the usual rule that costs follow the event.
In case of death
Where a person dies as the result partly of his own fault and partly of the fault of any other person an action could be brought for the benefit of his estate. In those situations the damages recoverable would be reduced under the Law Reform (Contributory Negligence) Act 1945. Further, in an action under the Fatal Accidents Act 1976 any damages that are recoverable would be reduced by the court to a proportionate extent to reflect a contribution.
Appeal from the assessment
Once a decision is made by the trial judge there is the right to appeal from those findings. In practice, an appellate court will be reluctant to interfere with the apportionment of blame or damages. However, this could happen if the trial judge has erred in principle, misapprehended the facts or made a clearly erroneous apportionment.