Contributory negligence

Contributory negligence in common law jurisdictions is generally a defense to a claim based on negligence, an action in tort. This principle is relevant to the determination of liability and is applicable when plaintiffs/claimants have, through their own negligence, contributed to the harm they suffered.[1] In some jurisdictions it may be applied by the court in a tort matter irrespective of whether it was pleaded as a defense.[2]

The contributory negligence defense can potentially eliminate the defendant's responsibility to pay damages to an injured plaintiff. For example, a pedestrian crosses a road negligently and is hit by a driver who was driving negligently. Since the pedestrian has also contributed to the accident, they may be barred from complete and full recovery of damages from the driver (or their insurer) because the accident was less likely to occur if it hadn't been for their failure to keep a proper lookout. Another example of contributory negligence is where a plaintiff actively disregards warnings or fails to take reasonable steps for his or her safety, then assumes a certain level of risk in a given activity; such as diving in shallow water without checking the depth first.

History

The doctrine of contributory negligence was dominant in U.S. jurisprudence in the 19th and 20th century.[3] The English case Butterfield v. Forrester is generally recognized as the first appearance, although in this case the judge found the victim to be the sole proximate cause of the injury.[3]

Burden of proof

In some jurisdictions, in order to successfully raise an contributory negligence defense, the defendant must prove the negligence of a plaintiff or claimant. In others, the burden of proof is on a plaintiff to disprove his or her own negligence.

Even if the plaintiff was negligent, the tortfeasor may still be held liable if he or she had the last clear chance to prevent the injury, meaning that even though the plaintiff was negligent the defendant was the last person with a clear opportunity to take action that would have prevented the plaintiff's injury from occurring.

Availability

Contributory negligence is generally a defense to a tort of negligence. The defense is not available if the tortfeasor's conduct amounts to malicious or intentional wrongdoing, rather than to ordinary negligence.

In some jurisdictions, the doctrine states that a victim who is at fault to any degree, including only 1% at fault, may be denied compensation entirely. This is known as pure contributory negligence.[3]

Australia

In Australia, particularly New South Wales, the award of damages is reduced by the same percentage as the plaintiff's own negligence.[4] For example, if the plaintiff was 50% negligent in causing his or her own accident, but would otherwise be entitled to $100,000 in damages, a court will award only $50,000. A court may also find that 100% contributory negligence is applicable in which case the plaintiff is not entitled to any damages.[5] Determining the extent of the contributory negligence is subjective and heavily dependent on the evidence available. Parties will often work to negotiate a mutually satisfactory percentage figure when engaging in alternative dispute resolution (such as mediation). If the matter does not settle, a percentage figure is ultimately assigned by the court at the hearing.

In Australia, contributory negligence is available when the plaintiff's own negligence contributed to its own injuries.[6] Also refer to Pennington v Norris for second test.[7]

United States

In the United States, the pure contributory negligence only applies in Alabama, Maryland, North Carolina, and Virginia. Indiana applies pure contributory negligence to medical malpractice cases and tort claims against governmental entities.[8] In the other 45 states in the U.S., plaintiff's recovery is simply diminished by the extent to which he or she contributed to the harm under principles of comparative negligence, with some states using a mixed model of comparative and contributory negligence. A state with a mixed model may, for example, prevent a plaintiff from recovering damages if the plaintiff is determined to bear more than 50% of the responsibility for his or her own injury.[9]

United Kingdom

In England and Wales, it is not possible to defeat a claim under contributory negligence and therefore completely deny the victim compensation. It does however allow for a reduction in damages recoverable to the extent that the court sees fit.[10][11]

In England and Wales, it is not a defense to the tort of conversion or trespass to chattels. In the United States, it is not a defense to any intentional tort.

India

In India compensation in favour of victim gets reduced in proportion with his negligence.

See also

References

  1. ↑ "Contributory Negligence". Wex. Cornell Law School. Retrieved 28 June 2017.
  2. ↑ "Douglas v. Harris, 35 N.J. 270, 281, 173 A.2d 1 (1961)". Google Scholar. Google. Retrieved 28 June 2017. "[T]he rule requiring a defendant to so affirmatively plead [contributory negligence] is mandatory. However, the court may relax that rule when its enforcement would be inconsistent with substantial justice."
  3. 1 2 3 Little WBL. (2007). "It is Much Easier to Find Fault With Others, Than to be Faultless Ourselves": Contributory Negligence as a Bar to a Claim for Breach of the Implied Warranty of Merchantability. Campbell Law Review.
  4. ↑ Civil Liability Act 2002 (NSW), Part 1A, Division 8, see also Law Reform Miscellaneous Act 1965 (NSW) s 9(1)(b).
  5. ↑ Civil Liability Act 2002 (NSW), section 5S
  6. ↑ Froom v Butcher [1976] 1 QB 286
  7. ↑ Pennington v Norris [1956] HCA 26, (1956) 96 CLR 10 (6 June 1956), High Court.
  8. ↑ Swisher, Peter N. (2011). "Virginia Should Abolish the Archaic Tort Defense of Contributory Negligence and Adopt a Comparative Negligence Defense in Its Place". University of Richmond Law Review. 46: 359. Retrieved 6 September 2017.
  9. ↑ Larson, Aaron (21 December 2016). "Negligence and Tort Law". ExpertLaw. Retrieved 6 September 2017.
  10. ↑ . "Law Reform (Contributory Negligence) Act 1945".
  11. ↑ "Contributory negligence". Practical Law. Thomson Reuters. Retrieved 28 June 2017.
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