Gavin Howe
Contributory negligence is a defence in tort law, which is a branch of private law, that can be used to completely bar plaintiffs from any recovery if they contributed to their injury through their own negligence. This defence is based in common law and has been recognised in the English case of Butterfield v. Forrester. The doctrine of contributory negligence was dominant in U.S. jurisprudence in the 19th and 20th centuries, however, many jurisdictions have since abolished it in favour of a comparative fault or comparative negligence approach. Other negligence defences include assumption of risk, where a plaintiff voluntarily enters a dangerous situation with full awareness of the risks involved, and complicity of the plaintiff, where the plaintiff is at least partially at fault for the injury.
| Characteristics | Values |
|---|---|
| Type of defense | Contributory negligence |
| Description | A defense to a tort claim based on negligence |
| Effect | Plaintiff's contributory negligence bars recovery |
| Availability | Not available if conduct rises above ordinary negligence to intentional or malicious wrongdoing |
| Availability | Not available in England and Wales |
| Availability | Only applies in Alabama, Maryland, North Carolina, and Virginia in the US |
| Availability | Applies in the District of Columbia with exceptions for motor vehicle accidents involving pedestrians and bicycles |
| Availability | Applies in Indiana for medical malpractice cases and tort claims against government entities |
| Modified version | Plaintiff barred from recovery if more than a certain percentage at fault (typically more than 50%) |
| Comparative negligence | Plaintiff's recovery is reduced by the percentage of fault assigned to them |
| Assumption of risk | Plaintiff voluntarily enters a dangerous situation, fully aware of the risk involved |
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What You'll Learn
Contributory negligence
The doctrine of contributory negligence was dominant in US jurisprudence in the 19th and 20th centuries. However, due to its harsh results, many common law jurisdictions, including the majority of US states, have abolished it in favour of a "comparative fault" or "comparative negligence" approach. Under comparative negligence, a negligent plaintiff can recover against a negligent defendant for their share of the blame. For instance, if a plaintiff is found to be 30% at fault, their damages award will be reduced by 30%.
In some jurisdictions, the burden of proof is on the defendant to prove the negligence of the plaintiff, while in others, the plaintiff must disprove their own negligence. Even if the plaintiff was negligent, the defendant may still be held liable if they had the last clear chance to prevent the injury. For example, if a pedestrian crosses the road negligently and is hit by a negligent driver, the pedestrian may be barred from full recovery of damages because the accident was less likely to occur if they had kept a proper lookout.
In Australia, civil liability is governed by Australian common law and the relevant state statutes. Most jurisdictions have enacted legislation that covers findings of non-absolute contributory negligence, also known as comparative negligence. In New South Wales, if a court finds contributory negligence, the award of damages is reduced by the same percentage as the plaintiff's negligence. However, a finding of 100% contributory negligence has never been upheld by an appeal court in Australia.
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Comparative negligence
There are three types of comparative negligence rules: pure comparative negligence, modified comparative negligence, and slight/gross negligence. Pure comparative negligence allows the plaintiff to recover damages based on the percentage of fault, even if they are primarily responsible for their injuries. For example, if a plaintiff is found to be 90% at fault, they can still recover 10% of their losses from the defendant.
Modified comparative negligence has two variants. The first variant, followed by a majority of states, allows plaintiffs to recover damages only if their negligence is not greater than the defendant's. In some states, this threshold is set at 50%, while in others, it is 51%. The second variant allows plaintiffs to recover only if their negligence is not as great as the defendant's, meaning their fault must be less than 50% of the combined negligence.
Slight/gross negligence is the third type of comparative negligence rule, but there are limited sources explaining this rule.
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Pure contributory negligence
The benefit of pure contributory negligence is that it does not require courts to determine the degree of blame each party holds. However, this all-or-nothing approach can lead to unfair outcomes. To mitigate this, courts have developed exceptions, such as the doctrine of last clear chance, which allows a negligent plaintiff to recover damages if the defendant was the only party that could have prevented the harm.
The majority of jurisdictions have abandoned pure contributory negligence in favor of comparative negligence, which allows for a more equitable distribution of damages based on the degree of fault of each party. Under pure comparative negligence, a plaintiff can recover damages from the defendant proportional to their share of fault, even if they are primarily at fault.
In England and Wales, contributory negligence does not completely deny the victim compensation but allows for a reduction in damages as the court sees fit.
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Assumption of risk
Primary assumption of risk occurs when the defendant has no duty of care to the plaintiff, and, therefore, cannot be found negligent. This often applies to sporting events and recreational activities. For instance, a professional football player who sustains a normal football-related injury cannot sue their team for negligence. Secondary assumption of risk occurs when the defendant does have a duty of care to the plaintiff, but the plaintiff knew about the risk caused by the defendant's negligence and proceeded anyway. For example, an employer supplies a defective piece of machinery to an employee, who uses it carefully anyway. If the machinery causes injury, the employer may have a secondary assumption of risk defence.
In many jurisdictions, implied assumption of risk has been merged with the doctrine of comparative negligence due to their substantial overlap. Under pure comparative negligence, the plaintiff can recover damages based on the percentage of fault attributed to the defendant. For example, if the plaintiff is 40% at fault and the defendant is 60% at fault, the plaintiff can recover 60% from the defendant. In some states, a mixed model of comparative and contributory negligence is used, where the plaintiff is barred from recovery if they are more than a certain percentage at fault (typically more than 50%).
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Tort law
One of the key aspects of tort law is the concept of negligence, which refers to a failure to exercise appropriate care, resulting in harm or injury to another. Negligence is a standard that holds people to a certain level of conduct, even if they may be unable to meet that standard. There are several defences available to a claim of negligence, including contributory negligence and assumption of risk.
Contributory negligence is a defence in some common law jurisdictions, where the plaintiff's own negligence contributes to their injury. If contributory negligence is established, the plaintiff may be completely barred from recovering damages from the defendant. However, this doctrine has been criticised as harsh, and many jurisdictions have moved towards a comparative negligence approach, where the plaintiff's damages are reduced according to their percentage of fault.
Assumption of risk is another defence to negligence, where the plaintiff voluntarily encounters a known risk. In such cases, the plaintiff is deemed to have consented to the risk of injury and cannot later sue for damages. However, if the plaintiff had no choice but to encounter the risk, they cannot be said to have assumed it voluntarily.
In the context of negligence defences, it is worth noting that pure comparative negligence allows a plaintiff to recover damages even if they are primarily at fault for their injuries. This approach apportions recovery based on the percentage of fault attributed to each party by a judge or jury.
In summary, tort law focuses on holding people accountable for the harm they cause and deterring others from creating dangers. Negligence defences, such as contributory negligence and assumption of risk, balance the responsibility between the parties involved, ensuring that plaintiffs do not recover damages when they have contributed to their own injury or voluntarily assumed the risk.
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Frequently asked questions
Contributory negligence is a defense to a tort claim based on negligence. It completely bars plaintiffs from any recovery if they are found to have contributed to their injury through their own negligence.
In some jurisdictions, the defendant must prove the negligence of the plaintiff. In others, the plaintiff must disprove their own negligence. For example, if a plaintiff is found to be 40% at fault for an accident, they can still recover 60% from the defendant.
Assumption of risk is another negligence defense. A plaintiff is said to "assume the risk" of injury if they voluntarily enter a dangerous situation, fully aware of the risks. Another defense is the "last clear chance" doctrine, where the tortfeasor may still be held liable if they had the last clear chance to prevent the injury, even if the plaintiff was negligent.
