Contributory negligence

Question 1

Who must prove contributory negligence?

Answer 1

For D to prove defence on balance of probabilities

Question 2

What D establish for a finding of contributory negligence?

Answer 2

• C failed to take reasonable steps of their own safety and
• this failure contributed to C’s damage

Question 3

What is the effect of contributory negligence?

Answer 3

Reduces liability of D in relation to harm their breach of duty had caused
* C’s damage are reduced by percentage court thinks is just and equitable having regards to C’s share in responsibility
* a partial defence

Question 4

What does failure to take reasonable steps for safety mean?

Answer 4

C is required to take same degree of care that a reasonable and prudent person would take - standard is objective.
- being drunk is not an excuse for failing to take reasonable steps for own safety
- allowance are made for C who have been placed in an emergency or difficult dilemma
- where C is a child, court will take into account age in determining standard of care to be expected.
- rescuers are generally protected from contributory negligence
- nature of duty

Question 5

What does failure contributed to C’s damage?

Answer 5

Means C’s fault must contribute to damage suffered and need not to accident so failing to wear seat belt will be contributory negligence if wearing it would have reduced injury even though wearing it does not cause accident.

Question 6

What deduction is made in C’s damage?

Answer 6

Court has discretion on how great a reduction to make
* C’s culpability will generally be expressed in percentage terms = equivalent percentage of damages will them be deducted from C’s award
* courts look at what is just and equitable.
* greater reduction is C contributed to accident as well as damage

looks at both C and D’s respective culpability