Where the Court considers that the defendant has breached its duty of care to an injured plaintiff but that the injured plaintiff was partly responsible for the injuries, damages payable will be reduced in accordance with the proportionate of liability of each party.
The Courts have historically understood however that the assessment involves more than a comparison of culpability and that the whole conduct of each party must be considered. The leading case is Podrebersek –v- Australian Iron & Steel Pty Limited in which the court said:
“An apportionment between the plaintiff and the defendant of their respective share in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man … and the relative importance of the act of the parties in causing the damage … it is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.”
Subsequently, the Court of Appeal in Talbot-Butt –v- Holloway said:
“The culpability of the plaintiff and the defendant must take proper account of the fact that … the plaintiff’s conduct posed no danger to anyone but herself, while the defendant who was driving (the vehicle) … was in charge of a machine that was capable of doing great damage to any human being who got in its way.”
As a result, the Courts have generally taken the view that a pedestrian who departed from the reasonable standard of care was less culpable than the driver whose departure may have been of equal measure because of the damage which could be inflicted by the car.
Justice Baston however has considered the doctrine of contributory negligence in view of the Civil Liability Act 2002. The Court in Cosmidas noted that because the legislation required a consideration of the probability that harm would occur if care were not taken, the culpability of each party is no different merely because that party was in a position to cause greater harm.
Subsequently, the Court of Appeal appears, at least in one instance, to have returned to the pre-Cosmidas approach and it remains to be seen whether in fact the Civil Liability Act has had an impact on the manner in which contributory negligence is to be assessed.