Understanding contributory negligence

Contributory negligence is when a claimant is found to have been partly responsible for the injuries, or for the severity of the injuries he has sustained.

The legal context of contributory negligence

In a legal context, the principle of contributory negligence exists as a defence to the tort of negligence. It means that although the claimant may have established that the defendant’s breach of his duty of care caused the damage or injury to the claimant, the defendant may counter claim that the claimant’s own actions contributed to the severity of his injuries.

In earlier common law, if the claimant was proven to be partly at fault, the defendant could not be held liable and no compensation paid. The Law Reform (Contributory Negligence) Act 1945 defined contributory negligence, allowing for the apportionment of blame based on the judgement of the courts.

How does the apportionment of blame work in practice?

When the defendant has admitted liability but it is established that the claimant was partly to blame for his injuries, the blame will be apportioned between the claimant and the defendant.

In some cases, the courts may find contributory negligence even where it is not explicitly offered as a defence.

Although the court has guidelines for judgement, these guidelines are vague. It is stipulated that the judgement must be “just and equitable”.

Each claim is therefore considered individually, and even cases that are similar in circumstances to previous claims may not have the same outcome.

The court will examine various factors such as age, experience and the situation of the two parties before apportioning blame.

The blame is apportioned as a percentage of the whole compensation settlement - for example the court may find the claimant 50% responsible for his own injuries and deduct that amount from his award.

Settling out of court

Where a claim has not yet gone to court both parties may agree that they were both responsible for the claimant’s injuries to some degree and compensation may be paid on the basis of a split-liability agreement.


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