Contributory Negligence

Before 1945, a claimant who was even partly to blame for their own injury could be barred from recovering anything at all. The 1945 Act changed that by allowing damages to be apportioned instead: 'Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage.'

The Act also fixes the meaning of 'fault' for these purposes, tying it to the same conduct that would found liability in the first place: '"fault" means negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort or would, apart from this Act, give rise to the defence of contributory negligence.' That circularity is deliberate — it lets the same concept of fault be used both to establish the defendant's liability and to measure the claimant's own share of responsibility for their loss.