LAW REFORM ACT 1995 - SECT 10 Apportionment of liability in case of contributory negligence

LAW REFORM ACT 1995 - SECT 10

10 Apportionment of liability in case of contributory negligence

(1) If a person (the
"claimant" ) suffers damage partly because of the claimant’s failure to take reasonable care (
"contributory negligence" ) and partly because of the wrong of someone else—

(a) a claim in relation to the damage is not defeated because of the claimant’s contributory negligence; and

(b) the damages recoverable for the wrong are to be reduced to the extent the court considers just and equitable having regard to the claimant’s share in the responsibility for the damage.

(2) Subsection (1) does not operate to defeat any defence arising under a contract.

(2A) If a contract or enactment providing for the limitation of liability applies to the claim, the amount of damages recoverable by the claimant because of subsection (1) is not to exceed the maximum limit applying to the claim.

(3) Where damages are recoverable by any person by virtue of subsection (1) subject to such reduction as is therein mentioned, the court shall find and record the total damages which would have been recoverable if the claimant had not been guilty of contributory negligence.

(4) Division 2 shall apply in any case where 2 or more persons are liable or would, if they had all been sued, be liable by virtue of subsection (1) in respect of the damage suffered by any person.

(5) Where any person dies as the result partly of his or her own failure to take reasonable care and partly of the wrong of any other person or persons, and accordingly if an action were brought for the benefit of the estate under the Succession Act 1981 , section 66 the damages recoverable would be reduced under subsection (1) , any damages recoverable in an action brought for the benefit of the dependants of that person under the Civil Proceedings Act 2011 , part 10 must be reduced to a proportionate extent.

Editor’s note—

Civil Proceedings Act 2011 , part 10 (Wrongful death proceedings)

(6) Where, in any case to which subsection (1) applies, one of the persons responsible for the damage avoids liability to any other such person or the person’s personal representative by pleading the Limitation of Actions Act 1974 or another Act limiting the time within which proceedings may be taken, the person shall not be entitled to recover any damages or contributions from that other person or representative by virtue of the said subsection.

(7) Where any case to which subsection (1) applies is tried with a jury, the jury shall determine the total damages which would have been recoverable if the claimant had not been guilty of contributory negligence and the extent to which those damages are to be reduced.