Contributory negligence can be argued as a whole or as a partial defence to the tort of negligence. A claim of negligence can be made out where a person or an entity is shown to have owed a duty of care to someone, has breached that duty of care and as a result, the person or entity has suffered harm or injury. This article outlines the defence of contributory negligence.
A person or organisation that is being sued for negligence can raise the defence of contributory negligence. By raising this defence, the defendant asserts that the plaintiff contributed in some way to the injury they suffered as a result of the defendant’s negligence. If the defence is made out the liability owed to the plaintiff for the negligence which is proven may be reduced.
What is the test for contributory negligence?
The standard of care that is considered in contributory negligence cases to determine whether a person was contributory negligence is that which a reasonable person, in the position of the person who suffered the harm, and with the knowledge they had or ought to have had at the time, would have taken in the circumstances. If the injured person is proven to have breached this standard of care they may be found to have been contributorily negligent.
Onus of proof
It is the defendant in negligence cases who has the onus of proof in establishing contributory negligence on the plaintiff’s part. The defendant must prove on the balance of probabilities that the injured person failed to abide by a standard of care that a reasonable person would have exercised in the same situation. Contributory negligence cannot be raised as a defence if there is any malice or wrongdoing on the part of the defendant.
How does a finding of contributory negligence affect liability?
The amount of compensation awarded is reduced according to the percentage that the plaintiff’s contributory negligence is found to have contributed to the harm or injury. For example, if a court determines that the plaintiff’s contributory negligence caused 20% of the injury, the liability of the defendant will be reduced by 20%. It is possible that contributory negligence could be assessed as 100% of the cause of the injury. In this case, contributory negligence would act as a complete defence to liability for negligence.
It should also be noted that each of the states and territories in Australia has legislation that relates to negligence and these each contains provisions for how contributory negligence should be assessed to calculate the liability.
Some examples of contributory negligence
A few common examples of where contributory negligence may be asserted as a defence include where:
- A person who sustains an injury in a car accident has failed to wear a seat belt;
- A person’s intoxication contributed to the injury they sustained;
- A worker suffers an injury while failing to wear proper safety equipment or not following safety procedures.
Children and contributory negligence
All persons apart from children under the age of five can be found to be contributorily negligent in Australia. If a child older than five is found to have been contributorily negligent then the level of contributory negligence is to be assessed in accordance with what another reasonable child of the same age and life experience would have been expected to do in the same circumstances (McHale v Watson  HCA 13; (1966) 115 CLR 199 (7 March 1966)).
In the case of McHale v Watson three children were playing together – McHale, Watson and another child. Watson caused permanent blindness to McHale by throwing a sharpened metal rod at McHale. She was twelve years old at the time. McHale sued Watson and the court had to determine the liability of the defendant. It found that Watson could not have foreseen the consequences of his action as he was only twelve years old at the time and also that he did not intend for any harm to occur. As a result, Watson was not found to be liable for the injury sustained by McHale.
Criminal conduct, intoxication and contributory negligence
The various state and territory legislation may include provisions which automatically reduce the liability of a defendant where certain conditions are deemed to show contributory negligence. For example, the Civil Liability Act 2003 (Qld) imposes a 25% reduction of liability where it is shown that the plaintiff was intoxicated at the time the relevant injury or injuries were sustained.
Further, if it can be shown that the plaintiff’s injury was sustained while they were engaging in criminal activity the court has the discretion to not award any damages for negligence. However, the court still has the discretion to award damages in this situation where not doing so would be unfair.
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