Professional Liability Guide

CHAPTER 3 – DEFENCES

CHAPTER 3 – DEFENCES

Contributory negligence Contributory negligence can be raised as a defence to any number of actions for damages in circumstances where the actions of a claimant have in some way caused or contributed to a loss resulting from the defendant’s alleged negligence. The defence has its grounding both in common law and under various statutes. The principles applied in determining whether a plaintiff has been contributorily negligent are the same as in deciding whether the defendant breached a duty of care. 173 The standard of care is that of a reasonable person based on what they knew, or ought reasonably to have known, at the time the harm was suffered. 174 Contributory negligence does not of itself defeat the claim, but legislation gives the courts the power to apportion liability and reduce damages. 175 Damages can be reduced by an amount the courts consider just and equitable, which may be up to 100%, depending on the circumstances. 176 In determining the amount of the reduction of damages for contributory negligence, a court compares culpability (i.e. the degree of departure from the standard of care of a reasonable person) and the relative importance of the acts of the parties in causing the damage. It is the whole conduct of each negligent party in relation to the circumstances of the incident that must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case. 177 In Swansson v Harrison & Ors, 178 the defendant insurance broker raised a defence of contributory negligence on the part of his plaintiff client in defence of a claim following a series of events resulting in the plaintiff being disentitled to indemnity under a life insurance policy. The broker alleged the plaintiff was contributorily negligent for failing to inform the broker that, at the time of providing instructions to cancel one life insurance policy and enter into another, the plaintiff was undergoing medical investigations for symptoms that (after the new policy’s inception) turned out to be pancreatic cancer. The Court reduced the plaintiff’s damages by 50% because it was of the view that the plaintiff failed to exercise the care of a reasonable person in his situation by not telling the broker his ongoing symptoms and that the results of medical investigations were pending. 173 CLA (Qld) s 23 (1); CLA (NSW) s 5R(1); CLA (SA) s 44(1); CLA (Tas) s 23(1); Wrongs Act (Vic) s 62(1); CLA (WA) s 5K(1); there are no comparative legislative provisions in the NT or ACT. 174 CLA (Qld) s 23 (2); CLA (NSW) s 5R(2); CLA (SA) s 44(1); CLA (Tas) s 23(2); Wrongs Act (Vic) s 62(2); CLA (WA) s 5K(2); there are no comparative legislative provisions in the NT or ACT. 175 Law Reform Act 1995 (Qld) ( LRA (Qld) ) s 10(1); Law Reform (Miscellaneous Provisions) Act 1965 (NSW) ( LRA (NSW) ) s 9(1); Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) ( LRA (SA) ) s 7(2)(b); Wrongs Act 1954 (Tas) ( Wrongs Act (Tas) ) s 4(1); Wrongs Act (Vic) s 26(1); Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 (WA) ( LRA (WA) ) s 4(1); Civil Law (Wrongs) Act 2002 (ACT) s 102(1); Law Reform (Miscellaneous Provisions) Act 1956 (NT) ( LRA (NT) ) s 16(1), (2). 176 CLA (Qld) s 24; CLA (ACT) s 47; CLA (NSW) s 5S; Wrongs Act (Vic) s 63; see different provisions which apply in South Australia Civil Liability Act 1936 (SA) s 50. 177 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529, 532–533. 178 [2014] VSC 118.

33

© Carter Newell 2023