J. Can an occupier reduce liability by relying on contributory negligence?
Contributory negligence is often the most important practical defence. Even if an occupier has breached the duty owed to a visitor under the Occupiers Liability Ordinance (Cap. 314), the occupier may still argue that the injured person also failed to take reasonable care for his or her own safety.
If the visitor failed to take reasonable care for his own safety, the court may reduce damages to reflect his share of responsibility, and in some cases the claim may fail entirely if the accident was solely his fault.
Contributory negligence may arise where the injured person, for example:
- ignored a clear warning sign;
- entered a restricted or obviously dangerous area;
- climbed over a barrier or guard rail;
- ran, played, or behaved recklessly in unsafe surroundings;
- failed to keep a reasonable lookout for an obvious danger; or
- was affected by alcohol or drugs and that contributed to the accident.
However, an occupier cannot rely on contributory negligence simply because the visitor could have been more careful. If the danger was hidden, unexpected, or one which the occupier should reasonably have guarded against, the occupier may still remain largely liable.
The court will look at all the circumstances in deciding whether the plaintiff was contributorily negligent, including:
- how obvious the danger was;
- whether any warning or barrier was provided;
- the purpose for which the visitor was using the premises;
- the visitor’s age and experience;
- whether the visitor was acting under pressure or in an emergency;
- whether the occupier should have expected that visitors might act in that way; and
- how far each party’s conduct contributed to the injury.
In practice, contributory negligence is often easier to establish than volenti. A court may say that the occupier was careless too, but that the visitor must still bear part of the loss because he did not act with reasonable self-protection.
