Liability defences

Was the claimant negligent?

Under the Law Reform (Contributory Negligence) Act 1945, the court may apportion liability between the parties and reduce the claimant's damages if it finds that the claimant 'suffers damage as a result partly of their own fault and partly of the fault of another person'. The defendant must prove that the claimant was at 'fault' and that they contributed to their own injuries although there is no requirement for the claimant to owe the defendant a duty of care. The defendant must prove that:

1. •

   the claimant failed to take proper care of their own safety, and

2. •

   this lack of care was a contributory cause towards their injuries

The court applies a largely subjective test when assessing if the claimant was contributorily negligent. It considers not only whether the claimant acted reasonably in taking the risk but whether it is 'just and equitable' in the circumstances to reduce the claimant's damages. This is a broad test that depends on the circumstances of the case. The court’s role is to apportion relative responsibility rather than measure degrees of carelessness. When deciding the level of any deduction