«Contributory Negligence, Assumption of Risk and Duties of Protection Terms of Reference 1. Inquire into the application, effectiveness and operation ...»
8. Contributory Negligence, Assumption of Risk
and Duties of Protection
Terms of Reference
1. Inquire into the application, effectiveness and operation of common
law principles applied in negligence to limit liability arising from
personal injury and death, including:
(e) contributory negligence; and
(f) allowing individuals to assume risk.
3. In conducting this inquiry, the Panel must:
(b) develop and evaluate proposals to allow self assumption of risk to override common law principles;
(c) consider proposals to restrict the circumstances in which a person must guard against the negligence of others.
8.1 In relation to claims for negligently-caused personal injury and death, contributory negligence is failure by a person (typically the plaintiff) to take reasonable care for his or her own safety, which contributes to the harm the person suffers.
8.2 Legislation in all Australian jurisdictions provides for the ‘apportionment’ of damages (that is, reduction of the damages to which the plaintiff is entitled) when a person has been contributorily negligent. We shall refer to this legislation as the ‘Apportionment Legislation’. Under the Apportionment Legislation, the court has a very wide discretion to reduce the plaintiff’s damages to the extent the court considers just and equitable having regard to the plaintiff’s share of responsibility for the harm suffered.
Essentially, the court’s discretion is exercised by comparing the degree of culpability of the defendant with that of the plaintiff. The defendant’s negligence is compared to the contributory negligence of the plaintiff. Regard is had to the degree to which each departed from the requisite standard of care and to the relative causative importance of the conduct of each.
Page 121 Law of Negligence Review
8.3 Because the apportionment of damages under the Apportionment Legislation is essentially an evaluative exercise involving a comparison of degrees of fault and causal contribution, an appeal court will not lightly interfere with the apportionment of damages decided by a trial judge or jury.1
8.4 In the context of this Review, the Panel considers that there are three questions about the current law relating to contributory negligence and the
apportionment of damages that deserve attention:
(a) Should the standard of care applicable to contributory negligence be the same as that applicable to negligence?
(b) Should particular types of contributorily negligent conduct attract a minimum reduction of damages fixed by statute?
(c) Should the law allow apportionment for contributory negligence in such a way as to deny the contributorily negligent person any damages at all?
8.5 Although these questions arise in relation to the law of negligence generally, we shall discuss them only in the context of claims for personal injury and death.
The same standard of care
8.6 The basic principle underlying the defence of contributory negligence is that people should take reasonable care for their own safety as well as for that of others. Contributory negligence is an objective concept that refers to the care that the reasonable person in the plaintiff’s position would have taken for his or her own safety.
8.7 Should the law allow people to take less care for their own safety than it requires others to take for their safety? This question concerns the standard of care applicable to contributory negligence. Should the standard of care applicable to contributory negligence be the same as that applicable to negligence? Another way of putting this question is to ask whether the standard of care applicable to victims of the negligent conduct of others should be different from that applicable to the negligent person merely because they are victims?
1 Liftronic Pty Limited v Unver (2001) 179 ALR 321.
8.8 We have explained that the negligence calculus provides a framework for deciding what precautions the reasonable person would have taken to avoid harm to others and, hence, what precautions the defendant could reasonably be expected to have taken (paragraph 7.8). Although it is rarely used in this way, the calculus can also provide a framework for deciding what precautions the plaintiff could reasonably be expected to have taken for his or her own safety. The common factor is the reasonable person. This is the basis for the view that there is only one standard of care, namely that of the reasonable person, and that it is common to both negligence and contributory negligence.2
8.9 Nevertheless, it might also be said that the standard of care should be determined on the basis that people can reasonably expect others to take more care for their safety than those same people are expected take for their own safety. Under this approach, victims of the negligence of others are treated differently merely because they are victims.
8.10 In the opinion of the Panel, there is in the Australian community today a widely-held expectation that, in general, people will take as much care for themselves as they expect others to take for them. This is an application of the fundamental idea that people should take responsibility for their own lives and safety, and it provides powerful support for the principle that the standard of care for negligence and contributory negligence should be the same.
8.11 Leading textbook writers have asserted that in practice, the standard of care applied to contributory negligence is lower than that applied to negligence despite the fact that, in theory, the standard should be the same.3 There is a perception (which may reflect the reality) that many lower courts are more indulgent to plaintiffs than to defendants. In some cases judges have expressly applied a lower standard of care for contributory negligence.4 This may result, for example, in motorists being required to keep a better lookout than pedestrians. In the Panel’s view, this approach should not be supported.
8.12 It is important to note that applying the same standard of care to contributory negligence as to negligence does not entail ignoring the identity 2 Commissioner of Railways v Ruprecht (1979) 142 CLR 563 per Mason J at 571-3.
3 G. Williams, Joint Torts and Contributory Negligence (1951), 353-4; J.G. Fleming, The Law of th Torts, 9 edn (1998), 466.
4 Commissioner of Railways v Ruprecht (1979) 142 CLR 563 per Murphy J 577-8; Cocks v Sheppard (1979) 25 ALR 325; Watt v Bretag (1982) 56 ALJR 760; Pollard v Ensor  SASR 57, Evers v Bennett (1982) 31 SASR 228.
Page 123Law of Negligence Review
of the plaintiff or the nature of the relationship between the plaintiff and the defendant. If, for instance, the defendant was an adult and the plaintiff was a child, applying the same standard of care to the plaintiff as to the defendant would not entail treating the plaintiff as an adult (any more than it would entail treating the defendant as a child). Again, if the defendant was a teacher and the plaintiff was a pupil, or the defendant was an employer and the plaintiff was an employee, it would be perfectly consistent with applying the same standard of care to both parties to take account of the fact (for instance) that there is a relationship of authority between teacher and child, or that employees typically have less control over the work environment than employers. The requirement to apply the same standard of care in dealing with the issue of contributory negligence as is applied in dealing with that of negligence means only that the plaintiff should not be treated differently from the defendant merely because the plaintiff is the person who has suffered harm. It would not, for instance, involve ignoring the fact that of the two parties, the defendant was in the better position to avoid the harm. But the mere fact that a person has suffered harm, rather than inflicted it, says nothing about that person’s ability, relative to that of the inflicter of the harm, to take precautions to avoid it.
8.13 In the view of the Panel, a legislative statement setting out the approach to be followed in dealing with the issue of contributory negligence, emphasising that contributory negligence is to be measured against an objective standard of reasonable conduct, stating that the standard of care applicable to negligence and contributory negligence is the same, and establishing the negligence calculus as a suitable basis for considering contributory negligence, could discourage the tendency of courts to be overly indulgent to plaintiffs when apportioning damages for contributory negligence.
The Proposed Act should embody the following principles:
(a) The test of whether a person (the plaintiff) has been contributorily negligent is whether a reasonable person in the plaintiff’s position would have taken precautions against the risk of harm to himself or herself.
(b) For the purposes of determining whether a person has been contributorily negligent, the standard of the reasonable person is the same as that applicable to the determination of negligence.
(d) Whether a plaintiff has been contributorily negligent according to the criteria listed in (a) and (c) must be determined on the basis of what the plaintiff knew or ought to have known at the date of the alleged contributory negligence.
Minimum reduction of damages
8.14 It has been suggested to the Panel that the law of negligence should be changed to require a court to reduce damages by a certain minimum percentage in cases involving certain categories of conduct that constitute contributory negligence.
8.15 One such case is where the plaintiff’s ability to take care for his or her own safety, at the time of death or injury, was impaired as a result of being intoxicated.5 Another such case is where a person is injured or killed in a motor vehicle accident while not wearing a seatbelt. For example, a court might be required to reduce, by a minimum of 25 per cent, the damages payable to such a person, even if it is likely that the injury or death would still have occurred had the person not been intoxicated, unless the court is satisfied that the person’s intoxication did not contribute in any way to the injury or death. Such a provision has three components: (a) a fixed minimum reduction of damages;
(b) a presumption that a certain type of conduct was contributorily negligent unless the court is satisfied that it did not contribute in any way to the injury or death; and (c) a shifting of the burden of proof on the issue of contributory negligence to the plaintiff.
5 See Wrongs (Liability and Damages for Personal Injury) Amendment Act 2002 (SA), s 35A(j); cl 51 of the consultation draft of the Civil Liability Amendment (Personal Responsibility) Bill 2002 (NSW).
8.16 The Panel is of the opinion that such provisions are generally undesirable. Negligence and contributory negligence come in an infinite variety of forms. From one case to another, the respective culpability of the plaintiff and defendant, and their relative causal contributions to the death or injury may differ widely. It is impossible to fix a minimum, just and equitable apportionment of responsibility to the plaintiff applicable to cases where the plaintiff’s contributory negligence involves a certain type of behaviour. In the opinion of the Panel, any such fixed reduction would be arbitrary and unprincipled, and could work injustice in some cases. The Panel considers that any fettering of judicial discretion to apportion damages for contributory negligence is undesirable.
8.17 The possibility of injustice is increased where a minimum reduction of damages is coupled with a presumption that certain types of behaviour constitute contributory negligence unless the court is satisfied that the behaviour did not in any way contribute to the plaintiff’s death or injury. As has already been noted, the standard of care that the law expects of a plaintiff is that of a reasonable person in the plaintiff’s position and in all the circumstances of the case. As circumstances differ from case to case, it is not possible to say in advance that certain types of behaviour will always and in all circumstances amount to contributory negligence. For example, being intoxicated will sometimes, perhaps often, amount to contributory negligence, but not necessarily always.
8.18 Furthermore, the onus of showing that the plaintiff was guilty of contributory negligence has traditionally rested on the defendant. As it cannot be presumed that certain types of behaviour will always and in all circumstances be contributorily negligent, a reversal of the onus of proof is, in the Panel’s opinion, undesirable.
8.19 Accordingly, the Panel recommends that there be no provision that certain conduct by plaintiffs attracts a minimum reduction for contributory negligence. The Panel recommends that courts retain their wide discretion to apportion damages in cases of contributory negligence. The Panel further recommends that there be no provision that certain types of conduct be presumed to amount to contributory negligence unless the plaintiff can show that the conduct did not contribute in any way to the death or injury suffered by the plaintiff.
Page 126 Contributory Negligence, Assumption of Risk and Duties of Protection Assumption of risk and 100 per cent contributory negligence
8.20 As noted in paragraph 8.2, the Apportionment Legislation gives the court a very wide discretion to reduce the damages payable to a plaintiff who has been contributorily negligent. The only guidance the Apportionment Legislation gives to courts is that the reduction should be such as the court considers 'just and equitable’.