The Evolution of the Tortious Blame Game
Image © Walt Disney Co., 1968.
Contributory negligence, otherwise known as the tortious blame game, occurs when a plaintiff exposes themselves ‘to a foreseeable risk of injury and suffers an injury within the class of risk to which they were exposed’. [1] A finding of contributory negligence must be based on all the relevant circumstances brought before the courts, meaning that a finding of contributory negligence in one case does not have to be reciprocated in another case with similar facts. [2]
Historically, contributory negligence was a complete defence to tortious actions in negligence. [3] This would often produce harsh results for the plaintiff as a finding of contributory negligence would almost always defeat a claim of negligence, even if the plaintiff’s contribution to the risk was trivial. For example, in cases where the defendant committed gross negligence, but the plaintiff slightly contributed to the risk, the defence of contributory negligence would prevail. Therefore, the principles of contributory negligence did not accord with the fundamental purpose of tort law — to properly compensate people who were injured by a wrong.
Courts began to recognise the brutality of the principle and shifted the onus of proof onto the defendant, as a way of advocating for fairness. The courts also developed the ‘last opportunity’ rule, which was simple — if the defendant had the last opportunity to avoid an accident, despite the plaintiff’s contributory negligence, the plaintiff would still succeed. However, the Law Reform (Contributory Negligence) Act 1945 (UK) (‘the UK Act’), abolished the complete defence of contributory negligence. Instead, courts now apportion damages on a ‘just and equitable’ basis, considering the responsibilities of each party. This is the case in New South Wales (see s 9(1) of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW)).
Academics such as A.L. Goodhart (‘Goodhart’) believed that the UK Act did not expressly or implicitly abolish the ‘last opportunity’ rule. [4] Instead, the UK Act allowed courts to apply the rule on a somewhat rational basis. [5] This point has merit, however, it seems to place a heavy reliance on the foreseeability aspect of negligence. Therefore, Goodhart neglects other important considerations such as moral blameworthiness and public policy (pun intended).
In modern times, findings of contributory negligence are based on the level of care a reasonable person, in the position of the plaintiff, would have taken in the circumstances. Courts will then use this to determine whether the plaintiff took less care than expected. In New South Wales, the standard of contributory negligence is provided within s 5R of the Civil Liability Act 2002 (NSW):
The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
For that purpose:
a. the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and
b. the matter is to be determined on the basis of what that person knew or ought to have known at the time.
The above provision applies the same standard of care to the plaintiffs and the defendants. [6] That standard, being objective, means that the plaintiff’s idiosyncrasies are typically not considered. [7] Courts are notoriously callous in matters where the plaintiff is intoxicated, forgetful or impulsive. However, mere inadvertence does not typically constitute contributory negligence. [8]
It should also be noted that children can be found guilty of contributory negligence if they have failed to exercise the ordinary standard of care expected of a normal child of comparable age. [9] In these instances, the age of the plaintiff can be considered as a qualifier — the younger the child, the harder it is to establish contributory negligence.
As you can see, the defence of contributory negligence has come a long way to ensure procedural fairness. It is no longer a complete defence and has been codified so that an objective standard is applied on a consistent basis. To wrap this up, here are some examples of where contributory negligence has been found:
- Failing to wear a seatbelt; [10]
- Manually lifting an object that is considered too heavy to safely lift in that manner;[11] and
- Accepting a ride from a driver who is clearly intoxicated. [12]
[1] Joslyn v Berryman (2003) 214 CLR 552, 558 (McHugh J).
[2] Carolyn Sappideen, Prue Vines and John Eldridge, Torts: Commentary and Materials (Thomson Reuters Australia, 13th ed, 2021) 678.
[3] John Murphy, ‘Misleading Appearances in the Tort of Deceit’ (2016) 75(2) Cambridge Law Journal 301, 325.
[4] A. L. Goodhart, 'The Last Opportunity Rule' (1949) 65(2) Law Quarterly Review 237, 237.
[5] Ibid.
[6] Joachim Dietrich and Iain Field, ‘The ‘Reasonable Tort Victim’: Contributory Negligence, Standard of Care and the Equivalence Theory’ (2017) 41(2) Melbourne University Law Review 602, 609.
[7] King v Cmr of Railways [1971] Qd R 266, 274 (Skerman J).
[8] Sungravure Pty Ltd v Meani (1964) 110 CLR 24, 37-9 (Windeyer J).
[9] McHale v Watson (1966) 115 CLR 199, 213-15 (Kitto J).
[10] Froom v Butcher [1976] 1 QB 286 (CA).
[11] Bassanese v Freightbases Pty Ltd (1982) 29 SASR 300.
[12] Insurance Commissioner v Joyce (1948) 77 CLR 397.