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In the 1920s, the provinces passed legislation that required the court to determine the degree of responsibility of each of the parties in a tort action, and to apportion the damages accordingly. These statutes provided a general framework for the apportionment of loss of contributory negligence cases in all jurisdictions, as all say that where harm is contributed by two or more parties, loss of apportioned according to the degree of fault.

Thus, it was necessary for common law provinces to introduce contributory negligence legislation in order to include actions of the injured party. Initially, contributory negligence was almost as if absolute defence. In other words, the claims would be dismissed if the defence can prove both parties negligence. This would allow the defendant to escape liability even in those cases where the defendant was, for the most part, responsible for the loss or injury suffered by the plaintiff. Contributory negligence underwent a number of largely unsuccessful efforts by the courts to relieve the hardship in cases where the plaintiff was responsible in only a very minor way for the injury or loss sustained. One of the earliest defences raised by a defendant was the argument that the injuries suffered by the plaintiff were due to the plaintiff’s own carelessness. Hence, this law provided the premises for not protecting those who were capable of protecting their own interests and those who were prepared to assume the risk of loss or injury on a voluntary basis.

For instance, when an accident occurs, the court tries to evaluate the negligence of both the injured party and the driver. And if the driver is held 80% responsible and the injured party is 20% responsible, then the claims are apportioned accordingly. That is, the injured party may claim 80% of the damages.

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Personal Injury Scotland