Contributory negligence

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Contributory negligence in common-law jurisdictions is defense to a claim based on negligence, an action in tort. It applies to cases where plaintiffs/claimants have, through their own negligence, contributed to the harm they suffered. For example, a pedestrian crosses a road negligently and is hit by a driver who was driving negligently. Since the pedestrian has contributed to the accident, they cannot sue the driver for damages because the accident would not have occurred if it weren't for the pedestrian's own negligence. Another example of contributory negligence is where a plaintiff voluntarily disregards warnings and assumes a certain level of risk, although accepting reasonable risk while attempting to rescue another person is not considered contributory negligence.

Contributory negligence is sometimes regarded as unfair because under the doctrine a victim who is at fault to any degree, including only 1% at fault, may be denied compensation entirely, which is known as pure contributory negligence.[1]:85 In the United States, the pure contributory negligence only applies in Alabama, the District of Columbia, Maryland, North Carolina, and Virginia. Indiana applies pure contributory negligence to medical malpractice cases and tort claims against the state government.

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.[2] [3] In India compensation in favour of victim gets reduced in proportion with his negligence.

Contributory negligence can be compared with comparative negligence, where the negligence of the plaintiff is not a complete defense of the insured but can reduce the damages.

Burden of proof[edit]

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.

Availability[edit]

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 defence to the tort of conversion or trespass to chattels. In the U.S., 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.[4] Also refer to Pennington v Norris for second test[1]

Culture[edit]

"Contributory Negligence" was the title of a circa 1982 poem by Attila the Stockbroker, a performance poet in the UK. The poem criticized a court decision where a rapist escaped heavy punishment and was ordered to pay only a fine on the ground that the women in some way provoked or contributed to the rape.

History[edit]

The doctrine of contributory negligence was dominant in U.S. jurisprudence in the 19th and 20th century.[1] 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.[1]

See also[edit]

References[edit]

[5]

External links[edit]