A plaintiff is guilty of contributory negligence when the plaintiff exposes himself or herself to a risk of injury which might reasonably have been foreseen and avoided and suffers an injury within the class of risk to which the plaintiff was exposed. IN CONTEXT Contributory negligence and the civil liability reforms [8.760] The Ipp Report recommended, at [8.13], that: (a) The test of whether a person (the plaintiff) has been contributorily negligent is whether a reasonable person in the plaintiff’s position would have taken precautions against the risk of harm to himself or herself. (b) For the purposes of determining whether a person has been contributorily negligent, the standard of the reasonable person is the same as that applicable to the determination of negligence. (c) In determining whether a person has been contributorily negligent, the following factors (amongst others) are relevant: (i) The probability that the harm would occur if care was not taken. (ii) The likely seriousness of the harm. (iii) The burden of taking precautions to avoid the harm. (iv) The social utility of the risk-creating activity in which the person was engaged. The Ipp Report also recommended that under apportionment legislation (the legislation providing for contributory negligence) a court should be entitled to reduce a plaintiff’s damages by 100 per cent where it is just and equitable to do so. These recommendations have generally been given effect to in the civil liability reforms of the states. The New South Wales provisions under the Civil Liability Act 2002 (NSW) are: 5R Standard of contributory negligence (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. (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time. 5S Contributory negligence can defeat claim The progress of society is linked to the maintenance and continuance of industrial operations and fast methods of transport, and must therefore suffer the harms associated with them. The question is simply, who is to pay for their cost, the hapless victim who may be unable to pin conventional fault on any particular individual, or those who benefit from the accident- producing activity? John Fleming. Business and the Law 466 Andrew, Terry, and Giugni Des. Business & the Law, Thomson Reuters (Professional) Australia Pty Limited, 2016. ProQuest Ebook Central, .
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