Pros And Cons Of Contributory Negligence

Introduction

In certain circumstances, when plaintiff succeeds in establishing duty of care, breach of duty and resulting damage, defendant may attempt to shelter behind several defences to avoid liability. Two major defences to negligence are Contributory Negligence and Assumption of Risk (Volenti Non Fit Injuria).

Contributory Negligence

Defendant can raise defence of contributory negligence when plaintiff's injury was partly contributed by his own fault. In such situation, the court will apportion the liability between the plaintiff and defendant.

1945 Act

To apply 1945 act, a person has to suffer by damage, which defined as personal injuries and loss of life. The act also includes property damage.

This act is applicable where damages were caused partly by the fault of both parties. The court has power to apportion damages only when fault occurred. Fault of defendant means negligence, breach of statutory duty or other act or omission which gives rise to liability in tort. Fault of plaintiff means an act or omission which give rise to defence of contributory negligence.

Apportionment

In apportionment of liability between plaintiff and defendant, two test are used to evaluate defendant’s share in the responsibility for the cause of damage.

Causation test distribute liability with 50/50 apportionment as conduct of both parties are causes of damage.

Blameworthiness test derive from behavior of a reasonable person and distribute liability on culprit parties. Parties who does not act as reasonable man and at fault will shoulder the liability.

Factors of contributory negligence

Defendant must show that plaintiff failed to take reasonable care for their own safety which caused the damage. It is not necessary for plaintiff t...

... middle of paper ...

...iry. All these actions suggest that the plaintiff was capable of understanding what he was doing. The plaintiff had actual knowledge of the risk and voluntarily accepted the risk through his conduct. Therefore, the defendant’s defence of assumption of the risk succeeded.

Conclusion

In response to many theories of liability to tort, it is important to understand two major defences to negligence, contributory negligence and assumption of risk, when handling cases. This is beneficial for defendant to reduce liability when the plaintiff has succeeded to establish the three elements of negligence. In relation to hospitality industry, defences to negligence were frequently used to protect and reduce liability of the hospitality establishment. Even till today, although defences are developing and ever changing, the underlying principles however are substantially the same.