Negligence a court may determine a reduction of 100

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negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated. Contributory negligence is not a complete defense, except where s63 applies. Court will usually apportion responsibility and reduce damages. Elements of contributory negligence: 1. The plaintiff failed to take reasonable care for her own safety. (Breach of Duty). 2. Her failure to take reasonable care was a cause of (contributed to) her injury. ( Causation). Element 1- Breach Wrongs Act , s 62 (1) “The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.” All elements of breach need to be discussed with reference to P’s negligence. Wrongs Act , s 62 (2) - Trite addition. Essentially part of the breach requirements. For that purpose: 1. the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and 2. the matter is to be determined on the basis of what that person knew or ought to have known at the time Historically the courts have considered slightly different principles, when determining contributory negligence. 32
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Exceptions / Relevant Considerations Failure to take reasonable care: some relevant considerations Sudden emergencies (“the doctrine of alternative danger”) Courts will consider whether P was placed in a situation of sudden emergency due to D’s negligence. The P could be contributorily negligent but the SOC will be lower. Caterson v Commissioner for Railways (1973) 128 CLR 99 (CB 397) P boarded an express train in order to assist a passenger in removing baggage. The train started moving without warning before the passenger had time to disembark, the passengers 14 year old son was on the platform some 64kms away from home. The P jumped from the train and was injured in doing so. A jury found a verdict in favor of the plaintiff. D had clearly been negligent. Q was whether P was contributorily negligent. P could have pulled the emergency stop. P said that due to the emergency nature of situation if he had time to think he would have pulled cord. D argued no imminent physical injury. Court held that inconvenience could also be a factor. Balancing act of risk took to avoid inconvenience with risk of physical injury. In this case the risk of injury was low while inconvenience risk taken was high. Anticipating other people’s negligence The courts view that a reasonable person in the P’s position would guard against other peoples negligence. EG: Driving to an intersection where driver has a right of way, a reasonable person in the P’s position will check whether other driver will give way. Damages will not be heavily reduced.
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