Contributory Negligence: A partial defense reducing the defendant's liability; focuses on the plaintiff's pre-accident behavior.
Asks if the plaintiff took appropriate care for their own safety.
Asks if their response to foreseeable risk was reasonable.
Determines if the plaintiff's actions contributed to the accident or the extent of the harm suffered.
It's crucial to differentiate between pre- and post-accident behavior; the defense applies only to pre-accident carelessness.
Ipp JA in Ackland v Commonwealth of Australia [2007] Aust Torts Reports 81-916 emphasized "blameworthiness" regarding behavior leading up to the accident.
Section 9, Law Reform (Miscellaneous Provisions) Act 1965 (NSW):
Deals with the apportionment of liability in cases of contributory negligence.
A claim isn't defeated due to contributory negligence.
Damages are reduced to the extent the court deems just and equitable, considering the claimant's share of responsibility.
Civil Liability Act 2002 (NSW):
Section 5S: Contributory negligence can defeat a claim entirely if the court deems a 100% reduction just and equitable.
Section 5R: Standard of contributory negligence.
Principles determining negligence also apply to determining contributory negligence.
The standard of care is that of a reasonable person in the plaintiff's position.
The determination is based on what the person knew or ought to have known at the time.
Apportionment: Multiple Wrongdoers
Concurrent Wrongdoers:
Those causing the same indivisible harm.
Joint Wrongdoers: Performing the same wrongful act, including those acting in concert or vicariously liable.
Several Concurrent Wrongdoers: Separate acts combine to cause the same indivisible harm.
Solidary Liability:
Joint and severally liable; advantageous to the plaintiff.
The plaintiff can sue any or all wrongdoers, each liable for the entire loss.
The plaintiff can bring only one action against any or all wrongdoers.
Under common law, defendants originally lacked the right to seek contribution, but the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) (s 5) grants this right.
Solidary liability applies to personal injury damages but not economic loss or property damage.
Proportionate Liability:
Advantageous to the defendant; each defendant is only liable for their portion of the loss.
Civil Liability Act 2002 (NSW) pt 4 requires:
An apportionable claim: economic loss and property damage (excluding personal injury).
A concurrent wrongdoer: causing the same indivisible harm.
Law Reform (Miscellaneous Provisions) Act 1946 (NSW) Section 5:
Addresses proceedings against and contribution between joint and several tort-feasors.
Judgment against one tort-feasor doesn't bar action against others.
A tort-feasor can recover contribution from any other liable tort-feasor.
The contribution amount is just and equitable, considering each person’s responsibility; the court can exempt or fully indemnify a person.
Civil Liability Act 2002 (NSW) PART 4:
Deals with proportionate liability.
Includes sections on application of the Part, concurrent wrongdoers, apportionable claims, the duty to inform the plaintiff, contribution, subsequent actions, joining non-parties, and the Part's overall application.
Civil Liability Act 2002 (NSW) Section 35:
Proportionate liability for apportionable claims.
A defendant's liability is limited to their proportion of responsibility for the damage or loss.
The court can only give judgment against the defendant for that amount.
Civil Liability Act 2002 (NSW) Section 34:
Application of Part defines apportionable claims as:
Claims for economic loss or property damage in contract, tort, or otherwise for failure to take reasonable care, excluding personal injury.
Claims for economic loss or property damage under the Fair Trading Act or Australian Consumer Law.
A single apportionable claim exists even with multiple causes of action.
A concurrent wrongdoer is one of two or more persons whose acts/omissions caused the damage, independently or jointly.
Civil Liability Act 2002 (NSW) Section 34A:
Certain concurrent wrongdoers don't benefit from apportionment.
This applies if the wrongdoer intended to cause or fraudulently caused the economic loss or damage, or if their liability is excluded by section 3B.
The liability of excluded concurrent wrongdoers is determined by other relevant legal rules.
Other concurrent wrongdoers' liability is determined according to this Part.
Hunt & Hunt Lawyers v Mitchell Morgan Nominees (2013) 247 CLR 613:
A fraudster obtained funds by forging signatures on mortgage documents.
The law firm was found to have breached its duty of care.
The High Court held that a 'concurrent wrongdoer' includes those whose actions caused the plaintiff's claimed damage, whether jointly or independently.
There is no express limitation on the nature of the claim, other than the requirement that the acts/omissions of all concurrent wrongdoers caused the damage.
Assessment of Compensation: Basic Principles
Temporal Considerations:
Trials often occur long after the dispute arises.
This leads to questions about the timing of compensation assessment.
Inlcudes the lump sum rule and the 'once and for all' rule.
The date of assessment varies by cause of action:
Breach of contract: Damages are assessed at the date of the breach.
Intentional wrongdoing and negligence: Damages are assessed at the time the award is made.
The relevance of inflation must also be considered.
Present Value of Future Losses:
Money today is worth more than the same amount in the future.
Courts adjust future losses to prevent over-compensation.
This aligns with compensatory damages principles.
Legislative Framework:
Civil Liability Act 2002 (NSW) prescribes a 5% discount rate.
This evolved from Todorovic v Waller (3%).
Reflects a conservative policy approach.
Medical Expense Scenario:
Future cost: 100,000 in 10 years.
Present Value calculation using 5% discount rate.
Future Loss Example:
200 per week for 40 years.
Assuming 3% discount rate:
$1 per week for 40 years calculates to $1,224.20
$1,224.20∗$200=$244,840
Taxation of Damages:
Personal injury compensation (including lump sum payments for loss of earning capacity) is generally non-assessable income.
Lost income/profits damages are taxable and require