Contributory Negligence and Apportionment of Damages in Australian Law

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Commercial Law
Assignment
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Table of Contents
Introduction................................................................................................................................3
Issue...........................................................................................................................................4
Rules and Relevant Law.............................................................................................................4
Contributory Negligence........................................................................................................4
Standard of Care.....................................................................................................................4
Burden of Proof......................................................................................................................5
Effect for contributory negligence.........................................................................................5
Application of Law....................................................................................................................5
Facts of the Case....................................................................................................................5
Analysis/Discussion...............................................................................................................6
Conclude/Advise........................................................................................................................6
Conclusion..................................................................................................................................8
Reference....................................................................................................................................9
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Introduction
The assignment aims at understanding law of negligence through the given case study. In the
given case, Tamara (plaintiff/aggrieved party) sues the Aldi Supermarket
(defendant/respondent) for claiming the injury suffered by her as the consequence of
negligence committed by the staff of the supermarket. The staff argues that there’s no
negligence on the part of staff and damage suffered by Tamara is because she has been
careless. The objective of assignment is to advise Tamara that whether or not she is liable to
claim the damages from Aldi Supermarket and what defenses are available to the defendant.
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Issue
Whether or not Tamara is also liable for the injury suffered?
Rules and Relevant Law
Division 7 of Part 21 of Law of Negligence and Limitation of Liability2 lays down the
provision of contributory negligence. S22 states the rules for determining whether or not the
plaintiff is also liable for the act of negligence. It examines if the person who has suffered the
harm has also been contributory negligent. It signifies that whether the plaintiff has taken
standard of care required to be taken by a person of reasonable discretion. Section 23 lays
down that the claim can be reduced to 100% if court thinks that it is justified in the eyes of
law.
Contributory Negligence
Contributory negligence connotes the incident in which the person has found to have
contributed to the injury suffered by them. The plaintiff is equally obliged to take reasonable
care in order to avoid occurrence of an event which may result in causing injury to them. As a
result, the amount of claim shall be reduced to the extent they are found to contribute the act
of negligence. In the incidents of contributory negligence, the legislation provides the
provision of apportionment of damages.
The court examines following three questions for determination of apportionment of the
damages:
A. Are the standards of care which are applicable in act of negligence, applicable in
contributory negligence?
B. Does the act of contributory negligence attract the reduction in amount of the
damages claimed?
C. Should the law be applied in a way that the plaintiffs’ claim can be reduced to 100%?
Standard of Care
A person is expected to take reasonable care for ensuring their own safety. The concept of
contributory negligence implies that the standard of care taken by the person who would have
been in the plaintiff’s position. The court is at the responsibility of determining to what extent
1 Law of Negligence and Limitation of Liability Act 2008
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the parties should be made liable for the act of negligence. The apportionment of liability on
the parties must be just and equitable.
Burden of Proof
The onus of proof is on the plaintiff to prove the negligence but the defense of contributory
negligence is taken by the defendant hence the burden of proving that the plaintiff has been
contributory in the act is on the defendant. This implies that the defendant has the
responsibility of convincing the court that the plaintiff has not taken standard of care for
avoidance of act of negligence. The court shall decide the case on the balance of
preponderance.
Effect for contributory negligence
In some countries the legal effect of contributory negligence is such that the plaintiff does not
get any amount for recovering the damages. But Australia doesn’t have this kind of
legislation3.
In Australia, the claim of damages reduce to the extent plaintiff is found guilty of the
incident. The claim shall be equal to the plaintiff’s contribution to the act of negligence. For
example, if the plaintiff is found 30% liable in the act of negligence then the claim shall be
reduced by 30%. The court has the discretion in determining the liability of plaintiff in the
contributory negligence.
Application of Law
The provisions of above stated act shall be applied in the given case in determining
the liability of Aldi Supermarket and in determining whether Tamara was contributory
to the act of negligence4.
Facts of the Case
 Tamara is fond of the particular chocolate which is only available at Aldi
Supermarket.
 The availability of the chocolate is rare.
3 Velasco, J., 2014. A Defense of the Corporate Law Duty of Care. J. Corp. L., 40, p.647.
4 Rhee, R.J., 2012. The Tort Foundation of Duty of Care and Business Judgment. Notre Dame L. Rev., 88,
p.1139.
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 On Saturday morning Tamara ran to buy the last available piece of the chocolate.
 In order to compete with other shopper who was also interested in buying the same
chocolate she ran and slipped.
 As per Tamara, she slipped on the puddle of melted ice-cream.
 As a consequence, Tamara ended up hurting her back.
 The treatment cost her more than $700,000.
 Tamara wishes to claim the amount from Aldi Supermarket.
 Aldi supermarket argues that there could not be any puddle of ice cream as the staff
inspects the floor every 40 minutes.
Analysis/Discussion
The provision of the contributory negligence shall be applied in the current case. According
to the provisions of the Law of Negligence and Limitation of Liability Act 20085. Tamara
was obliged to take reasonable care in order to ensure that she do not get hurt. The staff alone
is not responsible for the injury suffered by Tamara. Even if Aldi Supermarket succeeds in
proving that staff inspects the floor every 40 minutes, they still need to prove that whether or
not there was puddle of melted ice-cream when Tamara slipped. However, the burden of
proof is initially on Tamara to prove the act of negligence by defendant. The burden of proof
shall shift to the defendant if they take the defense of contributory negligence. This implies
that they need to prove that Tamara suffered because she did not take standard of care and
slipped because of her carelessness. The rules laid down under a famous case of Littley v.
Brooks and Canadian National Ry. Co., [1932] S.C.R. 4626 can be applied in the present
scenario. In the mentioned case, the Supreme of Court held that the parties to the dispute are
liable for the negligence in the proportion of 75% to the defendants and 25% to the driver of
motor car. The claim should be given to the plaintiffs but with reduced damages. And the
decision must be just and equitable in the eyes of law.
Conclude/Advise
After the critical analysis of the case, it has been advised to Tamara can file a civil suit
against Aldi Supermarket as negligence is a civil wrong covered under law of Torts. She can
sue Aldi Supermarket in order to claim the damages suffered by her. But the case shall not
succeed wholly as she was equally liable for the injury. Although, Aldi Supermarket can take
5 Law of Negligence and Limitation of Liability Act 2008
6 Littley v. Brooks and Canadian National Ry. Co., [1932] S.C.R. 462
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the defense of contributory negligence but this not reduce the amount of claim to 100% as
they are equally liable for the injury suffered by Tamara. Hence, it is the discretion of court to
determine the percentage of liability of both the parties. And there is a possibility that Tamara
shall not get the full amount i.e. $700,000 as claim for damages but a part of it would be
awarded by the court in proportion to the liability of the parties.
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Conclusion
Negligence is a civil wrong in the law of torts but there may be incidents where the plaintiff
is also liable for the injury or harm suffered by them. Accordingly, the claim is reduced in the
proportion of the contribution of the parties in the act of negligence. The rules and law related
to the contributory negligence has been discussed in the assignment. Also there has been
discussions regarding the impact of contributory negligence and who shall bear the burden of
the proof. It also has been evaluated that it is the discretion of the court in determining the
liability of the parties.
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Reference
 Law of Negligence and Limitation of Liability Act 2008, [online] Available at:
https://www.legislation.gov.au/Details/C2016Q00058/Html/Text#_Toc197935214.
[Accessed on 10th May 2019]
 Law of Negligence Limitation of Liability Act 2008, s 22and s23 Littley v. Brooks and Canadian National Ry. Co., [1932] S.C.R. 462
 Velasco, J., 2014. A Defense of the Corporate Law Duty of Care. J. Corp. L., 40,
p.647.
 Rhee, R.J., 2012. The Tort Foundation of Duty of Care and Business Judgment. Notre
Dame L. Rev., 88, p.1139.
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