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Cutting through the legalese: “contributory negligence”

A successful argument of contributory negligence can significantly reduce the amount of damages that must be paid. An obvious non-construction example is where a car crash victim proves that the other driver was at fault, but has their compensation reduced due to their own failure to wear a seat belt.

In professional negligence claims against designers, a contributory negligence defence can be beneficial not only in court proceedings but also in bringing about settlement. It is worth remembering that this only relates to fault of the claimant, not of a third party (third party contribution is a different topic) and that you must be able to prove (a) that the claimant was also at fault and (b) that there was a causal link between that fault and the damage it is alleged that the defendant caused to the claimant.

Examples may be, if the claimant did not take reasonable care to protect himself or if he took some unreasonable step that increased his own exposure to risk of loss.

In the construction context, this argument is most frequently run in relation to lenders’ claims against surveyors relating to errors with mortgage valuations.

How much can this help? The Court will first consider the damages it would have awarded, and will then reduce them by a “just and equitable” amount having regard to each party’s responsibility for the loss.

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These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.  “Cutting through the legalese” in particular is intended to be a short and introductory feature which does not provide comprehensive guidance on the topic in question.  Legal advice should always be sought.


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