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Contributory negligence in common-law jurisdictions is generally a defense to a claim based on negligence, an action in tort. This principle is relevant to the determination of liability and is applicable when plaintiffs/claimants have, through their own negligence, contributed to the harm they suffered. It can also be applied by the court in a tort matter irrespective of whether it was pleaded as a defense.
For example, a pedestrian crosses a road negligently and is hit by a driver who was driving negligently. Since the pedestrian has also contributed to the accident, they may be barred from complete and full recovery of damages from the driver (or their insurer) because the accident was less likely to occur if it hadn't been for their failure to keep a proper lookout. Another example of contributory negligence is where a plaintiff actively disregards warnings or fails to take reasonable steps for his or her safety, then assumes a certain level of risk in a given activity; such as diving in shallow water without checking the depth first.
In some jurisdictions, the doctrine states that a victim who is at fault to any degree, including only 1% at fault, may be denied compensation entirely. This is known as pure contributory negligence.:85 In the United States, the pure contributory negligence only applies in Alabama, Maryland, North Carolina, and Virginia. Indiana applies pure contributory negligence to medical malpractice cases and tort claims against the state government. In the other 45 states in the U.S., plaintiff's recovery is simply diminished by the extent to which he or she contributed to the harm: this doctrine is known as comparative negligence.
In England and Wales, it is not possible to defeat a claim under contributory negligence and therefore completely deny the victim compensation. It does however allow for a reduction in damages recoverable to the extent that the court sees fit. In India compensation in favour of victim gets reduced in proportion with his negligence.
In Australia, particularly New South Wales, the award of damages is reduced by the same percentage as the plaintiff's own negligence. For example, if the plaintiff was 50% negligent in causing his or her own accident, but would otherwise be entitled to $100,000 in damages, a court will award only $50,000. A court may also find that 100% contributory negligence is applicable in which case the plaintiff is not entitled to any damages. Determining the extent of the contributory negligence is subjective and heavily dependent on the evidence available. Parties will often work to negotiate a mutually satisfactory percentage figure when engaging in alternative dispute resolution (such as mediation). If the matter does not settle, a percentage figure is ultimately assigned by the court at the hearing.
Burden of proof
In some jurisdictions, the defendant has to prove the negligence of a plaintiff or claimant. In others, the burden of proof is on a plaintiff to disprove his or her own negligence. Even if the plaintiff was negligent, the tortfeasor may still be held liable, if he or she had the last clear chance to prevent the injury.The essence of contributory negligence is to reduce the level of damages that would have been paid by the defendant.
Contributory negligence is generally a defense to a tort of negligence. The defense is not available if the tortfeasor's conduct amounts to malicious or intentional wrongdoing, rather than to ordinary negligence. In England and Wales, it is not a defense to the tort of conversion or trespass to chattels. In the United States, it is not a defense to any intentional tort. In Australia, contributory negligence is available when the plaintiff's own negligence contributed to its own injuries. Also refer to Pennington v Norris for second test.
The doctrine of contributory negligence was dominant in U.S. jurisprudence in the 19th and 20th century. The English case Butterfield v. Forrester is generally recognized as the first appearance, although ironically in this case the judge found the victim to be the sole proximate cause of the injury.
- Little WBL. (2007). "It is Much Easier to Find Fault With Others, Than to be Faultless Ourselves": Contributory Negligence as a Bar to a Claim for Breach of the Implied Warranty of Merchantability. Campbell Law Review.
- . "Law Reform (Contributory Negligence) Act 1945".
- "What is Contributory Negligence?".
- Civil Liability Act 2002 (NSW), Part 1A, Division 8, see also Law Reform Miscellaneous Act 1965(NSW), s 9(1)(b)
- Civil Liability Act 2002 (NSW), section 5S
- Froom v Butcher  1 QB 286
- Pennington v Norris HCA 26 Austlii