The words ‘negligence’ and ‘duty of care’ are often thrown around in the legal sector, but do we actually understand what they mean? These phrases are extremely important in tort law and build the foundation for us to understand the more complex areas of tort law – such as contributory negligence.
What Is Negligence And Duty Of Care?
Negligence is the failure to take reasonable care to avoid causing injury or loss to another person.
It falls under the tort of negligence and is made up of three elements including duty of care, breach of duty and damage/causation/scope of liability.
Duty of care is a legal obligation to ensure the safety or well being of others.
What Is Contributory Negligence?
Contributory negligence occurs when a person’s lack of care was a contributing factor to the injury or harm that they suffered.
Why Does Contributory Negligence Exist?
Contributory negligence exists so that a claimant’s share in the responsibility for any harm experienced is taken into consideration. It is important as it determines to what extent each of the parties departed from the standard of care of a reasonable person.
The Test For Contributory Negligence
In contributory negligence cases, the defendant has the onus of establishing contributory negligence on the part of the injured party and it must be specifically pleaded as a defence. This means the defendant must convince the court that the person failed to abide by the standard of care that a ‘reasonable’ person would observe in the circumstances.
According to section 5R of the Civil Liability Act 2002 the standard of care applied when determining whether a person is guilty of contributory negligence is that of a reasonable person in the position of the person who suffered harm and is based on what they knew or ought to have known at the time.
In cases involving motor vehicle accidents and workplace injuries, contributory negligence is often automatically raised by defendants in an effort to reduce the damages payable to claimants.
What Happens If A Person Is Found To Be Contributory Negligent?
In Australia, the award of damages a plaintiff receives will be reduced by the same percentage as the plaintiff’s negligence if they are found to have been contributorily negligent. For example, if the plaintiff was found to have been 25% contributorily negligent for the harm he or she received, then the plaintiff’s damages award will be reduced by 25%. In this way this defence can either work as a full or a partial defence.
Each state and territory in Australia has it’s own Wrongs Acts, which outline and determine how liable for contributory negligence a person is.
Who Can Be Liable For Contributory Negligence?
In Australia it is generally accepted that anyone, bar children under the age of five, can be found contributorily negligent. However, the Australian courts have found children to be contributorily negligent in a number of different circumstances.
A significant Australian case where the High Court discussed a child’s ability to be found contributorily negligent was the case of McHale v Watson. This case determined that “the adequacy of a child defendant’s conduct should be judged by reference to the reasonable child of the same age for the purposes of the tort of negligence.” This means that a child is expected to conform to standards appropriate for children of the same age and life experience.
Contributory negligence has the potential to significantly reduce an award of damages and is a very useful legal defence. Think you may be eligible for a defence in contributory negligence?
Millner and Knight have a specialist panel of independent lawyers dedicated to getting you the compensation you deserve. We handle all matters on strictly no win no fee basis, even if you were partly to blame for the accident which caused your injuries.
Please call 1800 106 107 for a free no-obligation consultation regarding your situation. All calls are strictly confidential and you won’t be under any pressure to proceed with a claim.