If someone causes damage to your person or property, you are, in most instances, entitled to claim the amount of such damage from the person who caused the damage. Before rushing to Court, however, a claimant would be wise to consider firstly whether he / she could have possibly been contributory negligent and, if so, the effect such contributory negligence may have on the amount recoverable from the wrongdoer.
Where a claimant suffers damages and the damages were caused partly due to the claimant’s own fault and partly due to the fault of a third party, contributory negligence arises. The principle of contributory negligence was introduced into our law by the Apportionment of Damages Act 34 of 1956. Before the said Act came into effect a claimant could only claim for damages against a wrongdoer if the claimant was in no way at fault. This was referred to as the “all or nothing” principle.
The Apportionment of Damages Act did away with the “all or nothing” principle in that the Act makes it possible for a claimant to recover his / her damages from a wrongdoer, even if the claimant was contributory negligent. A wrongdoer can, however, not be held liable for damages which was caused by the claimant and as such, the amount the claimant is entitled to claim is reduced proportionately to the claimant’s degree of fault in causing the damage.
The criterion applied in our law for the apportionment of damage is the reasonable person test. The reasonable person test asks the question how a reasonable person would have behaved in the specific circumstances, including whether the reasonable person would have foreseen the possible consequences of acting a certain way, and further, whether the reasonable person would have taken certain steps to avoid the said consequences. The conduct of the reasonable person in the same set of circumstances is then weighed against the conduct of the parties before the Court. The degree to which the conduct of the parties deviated from that of the reasonable person under the circumstances is then expressed as a percentage.
Different approaches have been applied in our Courts to determine the degree of negligence of each party in the proceedings. The approach most followed in our Courts to date is that, once the degree of negligence for one of the parties has been ascertained, it is unnecessary to enquire as to the other party’s degree of negligence, as it simply follows after the fact. The best way to illustrate this approach is to think of negligence as a percentage out of 100. Taking all of the facts of a specific matter into account, a Court may come to the conclusion that one party contributed 20% to the damages, which inevitably leads to the conclusion that the other party contributed 80% to the damages.
The effect of contributory negligence on your claim for damages
The fact that the “all or nothing” principle no longer exists in our law ensures that a person may still bring a claim for damages even if they were contributory negligent. The amount awarded in the end will be apportioned as to the wrongdoer’s actual degree of negligence. This is good news for a Plaintiff, however, it is important to be cognisant of the fact that the Defendant in any legal proceeding may also institute a counter claim, if applicable, and in such event the same principles explained above will apply.
This aspect is best illustrated when considering a motor vehicle collision where there is damage to both the Plaintiff and the Defendant’s vehicles. The Plaintiff, being of the contention that he was not negligent in causing the accident, or if he was, that he was only contributory negligent, institutes action against the Defendant for payment of his damages. The Defendant may also institute a Counter Claim for payment of her damages based on the contention that she was not negligent in causing the accident, or if she was that she was only contributory negligent.
In the above scenario the Plaintiff’s claim is for an amount of R10 000.00, whilst the Defendant’s counterclaim is for an amount of R20 000.00. If the Court were to decide that the Plaintiff was 20% negligent in causing the accident and the Defendant was 80% negligent, the Court will make the following finding regarding payment of damages:
- The Plaintiff would be entitled to an amount of R 8 000.00 (R10 000.00 – 20%)
- The Defendant would be entitled to an amount of R 4 000.00 (R20 000.00 – 80%)
- In effect the above means that the Defendant must pay R8000.00 to the Plaintiff, whilst the Plaintiff must pay R4000.00 to the Defendant. In practice this causes unnecessary hassle and as such the two amounts are set off against each other. The Defendant would therefore be liable to pay to the Plaintiff an amount of R4000.00 in damages.
From the above illustration it is clear that the Plaintiff, if contributory negligent, will not be awarded his full claim amount. If it were to be found that the Plaintiff was 40% negligent and the Defendant 60%, the amount awarded to the Plaintiff will be even less.
There are numerous different factors to consider when deciding upon a party’s degree of negligence, if any, and as such the above merely serves as an example. Any person who has suffered damages is entitled to claim such damages from the wrongdoer, however, if the claimant was contributory negligent, the amount awarded to the claimant will not be the full amount of the claimant’s damages.
If you have suffered damages due to the fault of another and even if you are of the opinion that you were also at fault, it is advisable to consult an attorney so as to discuss the possibility of instituting action against your wrongdoer.
Writen by : Ilette Pilon (B.A. Law; LL.B)