Liability defences

Was the claimant negligent?

The Law Reform (Contributory Negligence) Act 1945 allows the court to apportion liability between the parties and to 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'. It is up to the defendant to prove that the claimant was at 'fault' and that they have contributed to their own injuries although there is no requirement that the claimant owes 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 adopts a fairly subjective test when assessing whether the claimant was contributorily negligent. It will not only consider whether the claimant acted reasonably in taking the risk but will also take into consideration whether it is 'just and equitable' in the circumstances to reduce the claimant's damages. This is a very open test which will depend on the circumstances of the case. The task of the court is to apportion