CHAPTER 8:06
DAMAGES (APPORTIONMENT AND ASSESSMENT) ACT
Acts 41/1971, 41/1973, 28/1985.
AN ACT to amend the law relating to contributory negligence and to provide for other matters incidental thereto.
[Date of commencement: Sections 2 to 8, 1st June, 1971;
Section 9, 9th November 1973.]
1
Short title
This Act may be cited as the Damages (Apportionment and Assessment) Act [Chapter 8:06].
2 Interpretation
In this Act—
“fault” means negligence, breach of statutory duty or any other act, omission or circumstance which gives
rise to delictual liability, or which would, but for this Act, give rise to the defence of contributory negligence.
3 Application of Act
(1) This Act shall bind the State.
(2) This Act shall not operate to—
(a) defeat any defence arising under a contract;
(b) increase the amount of damages beyond any maximum prescribed in any agreement or a law applicable
in respect of a claim for damages.
4 Apportionment of liability in case of contributory negligence
(1) Where any person suffers damage which was caused partly by his own fault and partly by the fault of any
other person, a claim in respect of that damage shall not be defeated by reason of the fault of the claimant, but the
damages awarded in respect thereof shall be reduced by the court to such extent as the court may deem just and
equitable having regard to the respective degrees of fault of the claimant and of such other person in so far as the
fault of either of them contributed to the damage.
(2) Damage shall, for the purpose of subsection (1), be regarded as having been caused by a person’s fault
notwithstanding the fact that another person had an opportunity of avoiding the consequences thereof and negligently failed to do so.
(3) Where, in any case to which subsection (1) applies, one of the persons at fault avoids liability to a claimant by pleading and proving that the time within which proceedings should have been instituted or notice should
have been given in connection with such proceedings in terms of any law has been exceeded, such person shall
not, by virtue of that subsection, be entitled to recover damages from that claimant.
(4) A claim by any person in respect of damage suffered as a consequence of the death of or injury to another
person shall not be defeated by reason of the fact that the person who was killed or injured had an opportunity of
avoiding the occurrence which resulted in his death or injury and negligently failed to do so.
5 Apportionment of damages in cases involving two or more wrongdoers
Where any person suffers damage which was caused by the fault of two or more wrongdoers, whether or not
they were acting in concert, the court may—
(a) order that the amount of damages awarded be paid by the wrongdoers jointly or severally, the one
paying the other or others to be absolved:
Provided that the court may, at the request of one of the wrongdoers, specify the proportions of the
damages payable by the wrongdoers amongst themselves as the court considers just and equitable, having regard to the respective degrees of fault of the wrongdoers;
(b) order that the amount of damages awarded be paid by the wrongdoers in such proportions as the court
considers just and equitable, having regard to the respective degrees of fault of the wrongdoers;
(c) make such order as to costs as the court considers just and equitable in all the circumstances of the case,
including an order that costs be paid—
(i) jointly and severally by such persons as the court may specify, the one paying the others to be
absolved:
Provided that the court may, at the request of one of such persons, specify the proportions
of the costs payable by such persons amongst themselves;
(ii) in such proportions by such persons as the court considers just and equitable, having regard to
the respective degrees of fault of those persons.