Legal Analysis Of Negligence: Comparative And Contributory Negligence In Australia

Comparative Negligence

Accidents happen every day, people get injured, and property spoiled. In many cases when an accident occurs the common question is always who caused it. Such questions can be addressed by the concept of comparative and contributory negligence. As the term mean, an accident can be contributed by an individual or one can be comparatively neglectful for his or her harm. This paper examines the case between a defendant Keith and a plaintiff Ruth. Keith used substandard materials when replacing Ruth’s wooden stair tread. After a short while, the tread broke down. Because, Ruth did not know about the faulty, she carried some obscure equipment that made her not to see the fault. She fell down and dislocated her knee. Because of this accident, she got admitted to the hospital and recovered after two months. Additionally, she resigned from her paid employment and stayed for twelve months before seeking for alternative employment. As a result, Ruth intends to sue Keith for Negligence and claim for 12 months in lost income and punitive damages to punish him for his incompetence. This paper, therefore, intends to provide legal advice and remedies that Ruth has against Keith.

From the evidence provided in this case, it is clearly that the accident was as a result of negligence. Negligence is a conduct that develops an insensible risk of injury to others. When one is reckless and his recklessness causes harm to another person, then he or she is liable for paying damages (Gifford & Robinet, 2014). For a plaintiff to claim for negligence against defendant, he or she must prove that:

• The defendant owed a responsibility toward the appellant. That is the reasonable care for other people’s safety.
• The defendant violated his duty by failing to act reasonably. For example, the carpenter using substandard materials for repair works.
• The defendant’s breach was what caused the appellant’s injuries
• The appellant suffered actual harm that she may claim for damages
• The defendant’s breach was the approximate cause of the harm. The defendant should have known that his violation would result to harm.

 The idea of contributory negligence is applied in characterizing behavior that creates an insensible risk to another person. The concept is that there is a need for one to act reasonably when performing a duty. If a person fails to act reasonable and injury happens, he or she may be held liable either partially or entirely for the outcome harm, even if another person got involved in the accident (Gifford & Robinet, 2014). In other words, the appellant contributed to her own injuries due to her actions or omissions. Therefore, in this case, Ruth could have caused her accident. It is because if Ruth could have acted reasonably, she could not have carried an obscure item that blocked her from seeing broken tread, which made her slip and fell down causing her to dislocate her knee. On the other hand, under Australian Law, the burden of proof for the contributory negligence is on the shoulders of the defendant who needs to prove to the court that the appellant also contributed to his or her own accident due to being negligent (‘Presumptions, Burden Of Proof, And The Conflict Of Laws’, 1930).

Contributory Negligence

Consequently, to determine whether or not the contributory negligence exist on the part of the appellant, the court applies the same principle of care as in the other types of negligence. For example, did the defendant do all that any other reasonable person could have done if was to be in the same situation? (Jewoo, 2014). Any failure to act on the part of the appellant that is regarded as the proximate cause of the appellant’s damages results to contributory negligence.

Because the principles of an act depend on what one could expect would happen due to an act, the responsibility to act reasonably was derived from foreseeability. Because of this, courts relied on the foreseeability (Harder, S 2014). If the defendant could predict the harm of a claimant, then the defendant owed the claimant a duty to act with reasonable care.

The Australian Law Reform Commission Chapter 12.63 recommends that contributory negligence should not get incorporated as a factor to be considered by a court to decrease an award of damages. A court may decrease an award for damages based on the state apportionment law in some claims to the extent that plaintiff was liable (Terry,1915). However, it is applicable only where the defense of contributory negligence would have been treated absolutely as the defence at a common law. Conversely, at common law, a contributory negligence is not treated as a defence to international torts. The apportionment legislation for that reason does not apply to such claims. Moreover, chapter 12.64 of the ALRC adding contributory negligence as a factor in the evaluation of damages would not be consistent with the liability element of the proposed legal cause of action that restricts liability to reckless behavior. Referring to the issue of apportionment of responsibility, the court will put into consideration the complete conduct of both parties in connection with the circumstances of an accident after, which it will compare between their own exits from their responsibilities.  

For an injured person get compensated for the damages, he or she must show that there was a negligence on the part of the other person. Claims for damages from negligence sometimes proceeds up to Supreme Court, but in many cases, they are issued in the Magistrate Court. What determines the court to which the case will be held is the seriousness of the injury and a number of damages caused. The two aspects of the damages arising from negligence are: (1) the appellant must be able to find fault on the part of the defendant by providing evidence, and (2) Once the responsibility has been established the court must then evaluate the amount suitable for damages (Goudkamp & Klar, 2016).

Burden of Proof

For a plaintiff to be able to establish liability under the common law, he or she must find that a defendant owed him or her duty of care. For many years the law has been requiring people to conduct their duties in a standard manner so that to protect other from unreasonable risks. The court considers what a reasonable person could have done after considering all the facts surrounding the incidents that resulted in harm to the appellant. The court will as questions such as:

• Was the injury foreseeable?
• What was the likelihood that harm will come out of the defendant’s behavior?
• What is the normal practice in such conditions?

In case the defendants did something that a reasonable person would not have done, the law says there has been negligence (Gifford & Robinet, 2014). However, it does not mean that the plaintiff should be paid the damages. The plaintiff must also show that there has been actual harm. For example, Ruth must show her dislocated knee as evidence. Additionally, she must also show that there is a sensible relation between the conduct of the defendant and the injuries she got. The damage must also be closely related to the wrong conduct. However, the harmful conduct should not be the only cause of the injury.

Consequently, the defense of consent to the injury gets applied if the defendant has evidence to show that the plaintiff knew about the risk of harm to themselves, but voluntarily ignored the liability ensuing from the danger. For example, an appellant might have been hurt from a collision when traveling by car whose driver identified to be drunk. If this defence becomes successful, it will totally defeat the appellant’s claim for damages, even though the appellant was also negligent (Gifford & Robinet, 2014). However, if the defendant can prove that the appellant also contributed to the harm he or she got, this will decrease the appellant’s claim for compensation by the percentage realized by the Judge. For example, if the jury finds that Ruth was 15 percent to be liable for her own injuries because of carrying an obscure at the time of the accident, the amount of compensation to her will reduce by 15 percent.

Moreover, for the court to decide whether the defendant was reckless, a judge may consider whether the defendant has violated any of the statutory duty (Ashley, 2004). For example in an accident where the defendant was in a vehicle where the driver had failed to stop when the traffic light was red in accordance with traffic rules. Such a violation is an evidence of negligence because the driver has breached the common law of duty to take care. Breach of statutory duty has also been used by the courts as being negligent, especially where the law fails to offer criminal punishment for the breach of the statute.

Assessment of Damages

After the court has found that the defendant has been neglectful, it then proceeded to evaluate the damages. The assessment of damages gets done in the basis of once and for all. Such evaluation completes the rights of the affected party and it becomes final evaluation without any further come back to the same assessment. Conversely, the court is still allowed under the Wrongs Act 1958 (Vic) to create an arrangement for a structured payment by the use of periodic settlement financed by an annuity (Bohlen, 1908). The total amount gets assessed by totaling different amounts evaluated under the number of the damages a party has caused. The court differentiates the special damages from general damages. Special damages small expenses such as medical expenses, for example, ambulance fees, money spent up to the trial date among others. Such damages are easily quantified because of their nature (Gwilliam, 1987). On the other hand, general damages cover expenses like loss of future earning ability, loss of life enjoyment, pain and suffering, and deformity. These are damages that are not easily quantifiable because of their inability nature. In such circumstances, the court examines the individual aspects of general damages then evaluates the right amount of money, which is reasonable and fair to the defendant to pay the plaintiff’s damages. Under the Civil Liability Act, an obligatory decrease of the appellant’s damages is set in certain situations. Especially, in circumstances where an appellant got injured, in situations where either the defendants or the appellant, both, are under the influence that has led to the defendant’s breach of the duty (Schofield, 1890.

Moreover, section 10 of the Law Reform Act 1995(Qid) provides the court with authority to reduce damages by a percentage, which is considered fair and same being that the extent has been awarded to share of the plaintiff responsibility for the injury (Goudkamp & Klar, 2016). Additionally, section 24 of the Civil Liability Act provides that a court might decrease the appellant’s damage by a hundred percent on the account of contributory negligence if it considers it fair and reasonable to do so (Gifford & Robinet, 2014).

Conclusion

To conclude with, damages for contributory negligence depend on the duty of care, breach of the duty of care, causation, and remoteness. A duty of care comes in by a reason of deciding to do a particular activity. People who will get affected by such activities will be able to complain about the breach of care. Once a duty of care has been realized by the courts, the court will consider the principles that are required of the party owing the duty of care. The court determines this by taking into consideration what a sensible person would have done if was in the same position of the party owing duty of care. Moreover, once a breach has been identified, the evidence harm that came out of the negligence act must be shown. It might be found that both parties contributed towards the injury, therefore, the damage may be apportioned in relations to individual’s liability. Lastly, once causation has been identified, it should get considered whether the damaged incurred was foreseeable, and if so, then the defendant has the burden of proof in his defense.

References

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Bohlen, FH 1908, ‘Contributory Negligence’, Harvard Law Review, vol. 21, no. 4, pp. 233-260.

Gifford, DG, & Robinet, CJ 2014, ‘Special Feature: Apportioning Liability In Maryland Tort Cases: Time To End Contributory Negligence And Joint Several Liability’, Maryland Law Review, vol. 73, no. 3, pp. 701-769.

Goudkamp, J, & Klar, L 2016, ‘Apportionment of Damages for Contributory Negligence: The Causal Potency Criterion’, Alberta Law Review, 53, 4, pp. 849-862.

Goudkamp, J, & Nolan, D 2016, ‘Contributory Negligence in the Twenty-First Century: An Empirical Study of First Instance Decisions’, Modern Law Review, 79, 4, pp. 575-622.

Gwilliam, DR 1987, ‘The Auditor, Third Parties and Contributory Negligence’, Accounting & Business Research (Wolters Kluwer UK), vol. 18, no. 69, pp. 25-35.

Harder, S 2014, ‘Contributory Negligence in Contract and Equity’, Otago Law Review, vol. 13, no. 2, pp. 307-332.

Jewoo, L 2014, ‘Two Defining Features of Russian Tort Law: Their Rationale and Legal Effect’, Review of Central & East European Law, vol. 39, no. 2, pp. 109-143.

‘Presumptions, Burden Of Proof, And The Conflict Of Laws’, 1930, Harvard Law Review, vol. 43, no. 7, pp. 1134-1137.

Schofield, W 1890, ‘Davies v. Mann: Theory of Contributory Negligence’, Harvard Law Review, 3, 6, pp. 263-277.

Terry, HT 1915, ‘Negligence’, Harvard Law Review, vol. 29, no. 1, pp. 40-54.