Contributory negligence
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| Tort law II |
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Contributory negligence (Violenti in Australia) is a common law defence to a claim based on negligence, an action in tort. It applies to cases where plaintiffs have, through their own negligence, contributed to cause the damages they incurred as a result of defendants' negligence. For example, a pedestrian crosses a road carelessly and is hit by a driver who is also driving carelessly. A contribution claim (legal) is a claim brought by one or more defendants to a lawsuit for money damages brought by a plaintiff.
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[edit] Scope of the Defence
At common law, contributory negligence was originally 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 modified the doctrine, either by court decision or by legislation and have accordingly changed the name to comparative negligence wherein, rather than awarding no damages at all, the jury reduces the compensation to be awarded by a percentage reflecting the degree to which the plaintiff's negligence contributed to cause the damages. Maryland, Alabama, North Carolina, Virginia, and the District of Columbia retain contributory negligence as a complete defense to negligence. In England and Wales, the Law Reform (Contributory Negligence) Act 1945 had a similar effect. 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 defense to any intentional tort.
[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.
