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Defences In Negligence Notes

Irish BCL Notes > Irish Tort Law Notes

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Defences in Negligence Contributory Negligence

S.34(1) Civil Liability Act 1961 provides that where damage suffered by the plaintiff arises partly as a result of the defendant's actions and partly as a result of the plaintiff's own actions, then damages must apportioned proportionately between them.

In negligence the question is whether the plaintiff exercised reasonable care in respect of his own safety.

The principle in ascertaining the standard of this care is the same as in negligence generally.

Contributory negligence is concerned with the extent to which the plaintiff contributed to his own injuries, as opposed to the accident which cause those injuries.

Causation must be shown, normal causative principles apply.

The damage is apportioned according to which side has deviated more from the reasonable standard of care as opposed to the side that caused the most damage.

Voluntary intoxication is irrelevant to the apportionment of damage. Consent or Waiver

s.34(1)(b) provides that contributory negligence shall apply regardless of voluntary assumption of risk, but not waiver or exclusion of liability.

Some sort of intercourse or communication is required to constitute a waiver of liability.

O'Sullivan v Dwyer (SC 1971) Facts

1. The plaintiff was a carpenter who was doing roofing work for the defendant.

2. He fell while engaged in this work, partly due to his being in a dangerous position a the time of the fall. IssueConstributory Negligence - Moral blameworthiness


1. O Dalaigh CJ(concurred with Walsh J)

2. Walsh J

The question of apportionment of fault does not arise unless there a causative element on the part of the plaintiff.

The damages should be apportioned according to the moral blameworthiness of the parties' causative contributions.

Blameworthiness is to be assessed according to the objective standard of the reasonable person of the individual's relevant class.

3. Fitzgerald J concurred in the judgment.

Carroll v Clare Co. Council (SC 1975) Facts

1. The plaintiff collided with a trafffic island which was illuminated and accompanied by old road markings.

2. The plaintiff contributed to the accident by driving too fast and failing to keep a proper look out. IssueContributory Negligence - Deviation from the standard of the reasonable man/woman


1. Henchy J (concurs with Kenny J)

2. Griffin J (concurs with Kenny J)

3. Kenny J
? The Civil Liability Act 1961 allows for the apportionment of damages between defendant and plaintiff according to the degree of fault on either side.
? This was described as 'moral blameworthiness' in O'Sullivan v Dwyer.
? It is better described as the extent of the departure from the standard of behaviour to expected of the reasonable man or woman given the circumstances.
? It is not a principle of law that someone who maintains a danger is more blameworthy than someone who commits a causal act of negligence.

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