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Apportionment legislation was first introduced in England in 1911 and modified in 1945. This later legislation has been adopted in Australia (but note that the Western Australian legislation is worded slightly differently). The English provision states:
"Where any person suffers damage as a result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage."
The courts apportion liability on a percentage basis. This is measured by the degree of departure from the standard of conduct expected by law.
"What has to be done is to arrive at a 'just and equitable' apportionment as between the plaintiff and the defendant of the 'responsibility' for the damage" - Dixon CJ, Webb, Fullagar and Kitto JJ in Pennington v Norris (1956) 96 CLR 10.
Legislative provisions in some states allow a court to assess a plaintiff's carelessness at 100%. This would mean the plaintiff could not claim any compensation from the defendant.
See, for example, section 5S Civil Liability Act (NSW).
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