Contributory negligence
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| Tort law II |
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Contributory negligence is a common law defence to a claim or action in tort. It applies to a situation where a plaintiff or claimant has, through their own negligence, caused or contributed to the injury they suffered from a tort. An example might be a situation in which a pedestrian crosses a road carelessly and is hit by a driver who is also driving carelessly.
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[edit] Scope of the Defence
At common law, contributory negligence was an absolute defence. If a defendant successfully raised the defence, he would be able to avoid liability for the tort completely. This could lead to injustice where the negligence of a plaintiff or claimant was slight. The defence of contributory negligence would prevent them from recovering any damages at all.
Most jurisdictions in the United States have abolished the doctrine altogether, instead adopting a comparative negligence standard that reduces the damages to be awarded by an amount reflecting the degree to which the plaintiff's negligence contributed to the injury. Only Virginia, Maryland, Alabama, North Carolina, and the District of Columbia retain contributory negligence as a complete defense to negligence.
Some jurisdictions have altered the common law so that contributory negligence is only a partial defence, meaning that a defendant avoids only part of their liability. For example, in England and Wales, the Law Reform (Contributory Negligence) Act 1945 had this effect. In practice this has a similar effect to the doctrine of comparative negligence (see Acts of the claimant).
[edit] Burden of proof
In some jurisdictions the defendant has to prove the negligence of the plaintiff or claimant; in others the burden is on the plaintiff or claimant to disprove their own negligence. The tortfeasor may still be held liable if he had the last clear chance to prevent the injury (the last clear chance doctrine).
[edit] Applicability
Contributory negligence is generally a defence to tort claims arising out of negligence of the defendant. In contrast, where the defendant's conduct amounts to malicious or intentional wrongdoing as opposed to ordinary negligence the defence does not apply. In England and Wales it is not a defence to the torts of conversion or trespass to goods and in the US it is not a defence to claims of assault or slander.
[edit] Culture
Contributory negligence was the title and subject of a circa 1982 poem by Attila the Stockbroker, a UK performance poet, protesting at a mere fine given to a rapist, after the high court judge determined that the women concerned in some way provoked or contributed to the rape.
