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Tort Law - Negligence


Contributory Negligence

If a plaintiff is found to have acted to their own detriment in a situation, so that they are partially or wholly responsible for the harm they are suing for, then either their claim is defeated, or the sum they can recover in damages is reduced. There are two elements to contributory negligence:


  • Did the plaintiff do what they should have done to take care of themselves?

  • If not, did their failure to take reasonable care contribute to the harm that was suffered?


If a certain precaution is commonly understood by the general public, then the plaintiff is held to have been negligent in not taking such a precaution. Examples are a car accident resulting in injury due to failure to wear a seatbelt (irrespective of the road rules), or crossing a road without streetlights, wearing dark clothing, in a fog and being struck by an approaching vehicle.


The latter example comes from Pennington v Norris.[1] The High court was asked whether the 50 percent reduction in damages at the trial should be reduced. The High Court ruled that the blame of the defendant driver was much greater than the blame of the plaintiff pedestrian in that the plaintiff was not expected to look out for the potential of an accident. Case facts showed that the driver was taking less than reasonable care under the circumstances. Therefore the driver was found to be 80 percent to blame and damages were increased accordingly. A curious thing about this decision is that while a person acting reasonably would watch carefully for oncoming vehicles while crossing a road in fog, the court did not think a pedestrian should have to do this.

Actions taken in crisis situations are treated differently to those taken where there is time to think. In Caterson v Commissioner for Railways a person boarded a train, accidentally leaving their 14 year old son on the platform, 40 miles from home. The next station was 80 miles away. They then jumped off the train while it was speeding up and were injured. The plaintiff had failed to check for a communication cord which could have signalled the driver to stop. The court did not consider this unreasonable due to the brevity of time in which to act and the time it may take to find the cord, the possibility of panic, and the choice being between risk and serious inconvenience. This was deemed not to be contributory negligence.




[1] Pennington v Norris (1956) 96 CLR 10.

[2] Caterson v Commissioner for Railways (1973) 128 CLR 99.

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