Contributory negligence

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Contributory negligence occurs when the plaintiff's own negligence contributed to its own injuries.[1] Whilst contributory negligence used to be a complete defence to negligence, it now only reduces the damages recoverable by the plaintiff.[2]

To establish contributory negligence, the same test is applied as to establishing normal negligence.[3] However, there are a few extra rules:

  1. Duty - a duty of care is automatically found, since one always has a duty to take reasonable care for his own safety.
  2. Breach - standard of care is breached if the plaintiff ought to have reasonably foreseen that, if he did not act as a reasonable prudent man, he might be hurt himself.[4] 'Reasonableness' is also measured subjectively, according to what this specific person knew or ought to have known at the time.[5]
    • The standard of care will not be breached if the plaintiff acted reasonably 'in the agony of the moment'. Weigh up risk taken by the plaintiff's action against degree of danger caused by the defendant.[6]
    • The standard of care may be breached for failing to anticipate the negligence of others, in cases where the reasonable man would be likely to guard against such negligence.[7]
    • The standard of care may be mandated by statutory safety requirements or community standards.
    • Special rules apply to intoxication.[8]
  3. Causation - the plaintiff's action need not be the original cause of the damage, it is enough that it aggravated the damage.[9]
  4. Remoteness - Operates as normal. The plaintiff's contributory negligence liability for his own damages extends only to those damages which are not too remote.[10]

If these requirements are satisfied, contributory negligence is found and the court will apportion damage according to relative faults. This means that the plaintiff's damages will be reduced so as to not include the damages that he caused himself. Damages are apportioned:

  • "as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage".[11]
    • This involves "a comparison both of culpability, ie of the degree of departure from the standard of the reasonable man...and of the relative importance of the acts of the parties in causing the damage."[12]

This article is a topic within the subject Torts.

Contents

Required Reading

Sappideen, Vines, Grant & Watson, Torts: Commentary and Materials (Lawbook Co, 10th ed, 2009), pp. 671-693 [16.65-16.145]; 701-702 [16.195-16.200].

Introduction

[13] There are many cases in which a plaintiff's own carelessness aggravates or contributes to harm suffered as a result of the negligence of another. A common example is when a person's injuries were aggravated since he did not wear seat belts. The defendant is guilty of negligent driving, but the plaintiff negligently contributed to his own injury. This is called contributory negligence.

Contributory negligence used to be a complete defence in the sense that a plaintiff guilty of contributory negligence could not recover damages at all. However, the passing of Law Reform Miscellaneous Act 1965 (NSW), s 9(1) changed this, and now contributory negligence is used to apportion the damages between the parties according to their individual faults (in other words, reduce the amount recoverable by the plaintiff).

According to s 5R of the Civil Liability Act 2002 (NSW), the test to establish whether a plaintiff is guilty of contributory negligence is the same as the normal one. That being said, there are a few things to consider when applying this test:

Duty

In the case of contributory negligence, there is no need to prove a duty of care, since all people are deemed to owe a duty of care towards themselves.

Breach of the standard of care

Just as a defendant is deemed to be negligent if his conduct fellow below the standard of care of the reasonable man, a plaintiff is contributorily negligent if he departed from the standard of care that the reasonable man takes towards himself. In determining whether a plaintiff has breached the standard of care owed towards himself, there are a few things to consider.

The agony of the moment

[14] A plaintiff might not be guilty of contributory negligence if he had acted in 'the agony of the moment'. This means that the plaintiff, in response to imminent physical danger created by the negligence of the defendant, acted in a negligent way to try avoid the danger, and ended up aggravating his own injuries. Although a more appropriate course of action might have been available, the court makes allowances for such circumstances since the plaintiff was in a state of emergency and could not properly consider the options available to him. [15] Examples include:

  • Plaintiff jumps off a train when it negligently left the station with his infant son still on the platform unattended: Caterson v Commissioner for Railways[16]
  • Plaintiff released his seat-belt when the car he was in was about to hit a pole on his side: Avram v Gusakoski [17]

Obviously, even in the agony moment not everything is allowed. As usual, for the purposes of determining whether the standard of care has been breached, the court determines whether the risk the plaintiff was taking in trying to escape was unreasonable when weighed up to the degree of risk or inconvenience created by the negligence of the defendant.

  • For example, a plaintiff will be guilty of contributory negligence if he jumped off a cliff to escape a bee released by the defendant. There will be no protection for acting 'in the agony of the moment' since the risk taken by jumping off the cliff is so disproportionate to the risk created by the defendant.

Anticipating negligence of others

[18] A plaintiff might be deemed as contributorily negligent if he failed to anticipate the possible negligence of others. This is based on the notion that the reasonable man does guard against the possible negligence of others, and therefore failing to do so would fall short of the standard of care.[19]

Once again, this requirement has it limits, and a person is not required to anticipate every possible negligence, but merely those which commonly occur.[20]

Leniency in the standard of care

[21] Just as the standard of care required of the defendant may be lowered under certain circumstances, the standard of care required of the plaintiff may be lowered in certain circumstances.

Children

The standard of care required of a plaintiff to look after himself is lowered in the case of a child. The standard of care will still be determined objectively, but according to a reasonable child of the same age and gender as the plaintiff.[22] This is because s 5R (2) specifies that:

  • (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and
  • (b)the matter is to be determined on the basis of what that person knew or ought to have known at the time.

Employees

Traditionally, employees who carry out actions against employers who have provided an unsafe working environment have been subjected to a fairly lenient standard of care, in order to make allowances for momentary lapses of concentration when performing prolonged repetitive work, especially in distracting conditions. This was discussed in Czatyrko v Edith Cowan University:[23]

  • Facts: An employee stepped off a truck, assuming platform was behind him. It wasn’t, and he injured himself.
  • Held: The employee failed to take simple step of looking back, but he was not guilty of contributory negligence, because the act he performed was repetitive, performed as part of the system of work, and in a reducing space.
    • "No directions or warnings of any kind were given...[the employees] were under pressure from their supervisor to complete their job promptly. The work was repetitive. In all of these circumstances, it presented a fertile field for inadvertence".[24]

That being said, such a lenient standard will not be applied where the worker acted contrary to introductions or adopted a different system of work.[25]

Statutory safety requirements

[26] There are scenario in which certain safety requirements are actually prescribed by statutes. The failure of a plaintiff to abide by such safety requirements usually constitutes conduct falling below the standard of care and therefore contributory negligence. However, it is not conclusive evidence, and ultimately the question will vary according to the circumstances.

  • For example, it is a statutory requirement to wear seat-belts in cars or helmets on a motorcycle. Failure to do so will generate a presumption of contributory negligence by the courts.[27]

Community standards

[28] Similarly to statutory safety requirements, the standard of care may be determined by community standards (which tend to reveal what the conduct of the reasonable man is). For example:

  • It was found that it was not a community standard to wear tough clothing whilst riding on a motorcycle. Accordingly, the plaintiff was not contributorily negligent for failing to wear tough clothing (note, this was a while ago): Kirk v The Nominal Defendant [1984] 1 Qd R 592</ref>.

Causation

[29] Consistently with the normal negligence inquiry, the negligence of the plaintiff must have some causal connection to the harm he suffered. However, it should be noted that the negligence of the plaintiff does not need to be the cause of the accident, but rather a cause of the damage (ie, it is sufficient if it aggravated the injuries rather than caused them). This was discussed in Froom v Butcher:[30]

  • "The question is not what was the cause of the accident. It is rather what was the cause of the damage. In most accidents on the road the bad driving, which causes the accident, also causes the ensuing damage. But in seat belt cases the cause of the accident is one thing. The cause of the damage is another. The accident is caused by the bad driving. The damage is caused in part by the bad driving of the defendant, and in part by the failure of the plaintiff to wear a seat belt. If the plaintiff was to blame in not wearing a seat belt, the damage is in part the result of his own fault. He must bear some share in the responsibility for the damage: and his damages fall to be reduced to such extent as the Court thinks just and equitable."

Remoteness

[31] Consistently with the normal negligence inquiry, the plaintiff's contributory negligence liability for his own damages extends only to those damages which are not too remote.[32]

Apportioning damages

The court is supposed to apportion damages based "as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage".[33] This was discussed in Pennington v Norris:

  • Facts: a person (the Plaintiff) didn't look crossing road and was hit by a car driven by the Defendant.
  • Held: the Defendant was mostly responsible because he was driving really fast on a misty and wet night at about the time everyone is leaving the nearby pubs. His culpability or responsibility is much greater than the Plaintiff's. 80%-20% apportionment.

Apportionment was also discussed in Podrebersek v Ausralian Iron and Steel Pty Ltd:[34]

  • Apportionment involves:
    1. "a comparison both of culpability, ie of the degree of departure from the standard of the reasonable man...
    2. and of the relative importance of the acts of the parties in causing the damage."[35]

Intoxication

[36] Intoxication is given special importance in cases of contributory negligence.

Motor vehicle accidents

In NSW, the Motor Accidents Compensation Act 1999 (NSW), s 138(2) automatically finds a plaintiff guilty of contributory negligence if:

  • (a) (the plaintiff was the driver) the plaintiff was intoxicated and cannot prove that the harm would have been caused regardless of his intoxication.
  • (b) (the plaintiff was the passenger) the plaintiff was aware (or ought to have been aware) that the driver was under some impairment due to intoxication.

And also in McKenzie v Nominal Defendant[37]:

  • Facts: Plaintiff [Mackenzie] was a passenger on a motorcycle pillion driven by the Defendant [Brown]. They were both drunk at the time, and the Plaintiff was aware the Defendant was drink driving, never had a license, had no experience in driving a large bike and thought he was “immature and irresponsible”. They were both injured and the Plaintiff sued to recover damages, Defendant claimed contributory negligence.
  • Held: When determining the standard of care, the court considers what a reasonable person would do in the position of the person based on what that person knew or ought to have known at the time (making it more subjective). In this case, the Plaintiff knew enough things so that, even while drunk, a reasonable person would not let the Defendant drive. Contributory negligence valued at 80%.

General claims

Under s 50 of the Civil Liability Act, an intoxicated (self induced that is) person is completely barred from making a claim in negligence unless he is able to show that the harm would have been likely even without the intoxication. Even if this is showed, contributory negligence is set at 25% unless the intoxication is completely disconnected from the cause of the injury.

End

This is the end of this topic. Click here to go back to the main subject page for Torts.

References

Textbook refers to Sappideen, Vines, Grant & Watson, Torts: Commentary and Materials (Lawbook Co, 10th ed, 2009).

CLA refers to Civil Liability Act 2002 (NSW)

  1. Froom v Butcher [1976] 1 QB 286
  2. Law Reform Miscellaneous Act 1965 (NSW), s 9(1)
  3. CLA, s 5R
  4. Froom v Butcher [1976] 1 QB 286
  5. CLA, s 5R(2)(b)
  6. Sabley v Kais (1967) 118 CLR 424; Caterson v Commissioner for Railways (1973) 128 CLR 99; Avram v Gusakoski [2006] WASCA 16
  7. GRant v Sun Shipping Co Ltd [1948] AC 549, 567
  8. Motor Accidents Compensation Act 1999 (NSW), s 138(2), CLA, s 50
  9. Froom v Butcher [1976] 1 QB 286
  10. Jones v Livox Quarries Ltd[1952] 2 QB 608
  11. Law Reform Miscellaneous Act 1965 (NSW), s 9(1)(b)
  12. Podrebersek v Ausralian Iron and Steel Pty Ltd (1985) 59 ALJR 492, 494
  13. Textbook, p. 671 [16.65]
  14. Textbook, p. 672 [16.75]
  15. Sabley v Kais (1967) 118 CLR 424
  16. (1973) 128 CLR 99
  17. [2006] WASCA 16
  18. Textbook, pp. 672-3 [16.80]
  19. "a prudent man will guard against the possible negligence of others when experience shows such negligence to be common.": GRant v Sun Shipping Co Ltd [1948] AC 549, 567 (Lord du Parcq)
  20. London Passenger Transport v Uponson [1949] AC 155, 173
  21. Textbook, pp. 672-3 [16.80]
  22. Doubleday v Kelly [2005] NSWCA 151
  23. [1984] 155 CLR 306
  24. [1984] 155 CLR 306 at [18].
  25. Moller v Trollope Silverwood and Beck Pty Ltd [2004] VSCA 22
  26. Textbook, p. 674 [19.90]
  27. Motor Accidents Compensation Act 1999 (NSW) s138(2)(c)(d); Petracho v Griffiths [2007] NSWCA 302.
  28. Textbook, p. 675 [19.95]
  29. Textbook, p. 675 [19.100]
  30. [1976] 1 QB 286
  31. Textbook, p. 678 [16.115] Note 6
  32. Jones v Livox Quarries Ltd [1952] 2 QB 608
  33. Law Reform Miscellaneous Act 1965 (NSW), s 9(1)(b)
  34. '(1985) 59 ALJR 492
  35. (1985) 59 ALJR 492, 494
  36. Textbook, pp. 684-6 [16.140] Notes 7 & 8
  37. [2005] NSWCA 180
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