James Goudkamp, ‘Rethinking Contributory Negligence’

The doctrine of contributory negligence is one of the most important rules in the law of torts, both in practical and in theoretical terms. It is significant for practical reasons because of the frequent and often powerful effect that it exerts on claims and litigation. The doctrine is of theoretical importance for several reasons, but primarily because it shows clearly that tort law is concerned not only with the quality of the defendant’s behaviour but also with the nature of the claimant’s conduct. Despite its significance, legal writers have shown relatively little interest in contributory negligence. Fairly modest progress has been made in terms of advancing our understanding in this connection since Williams published his seminal treatise Joint Torts and Contributory Negligence. That monograph, despite being over 60 years old and written when the apportionment legislation was in its infancy, remains by a significant margin the leading analysis in the field. Possibly as a result of the general juristic neglect of the doctrine of contributory negligence, many erroneous beliefs about it have flourished. The goal of this chapter is to identify and correct some of these mistakes. It will be argued that: 1. the traditional definition of the doctrine of contributory negligence is incomplete because it fails to account for the doctrine’s frequent exclusion for reasons of public policy; 2. contrary to widely held views, rules that specify the standard of care that defendants must achieve for the purposes of the tort of negligence should not be transplanted automatically to the contributory negligence context; 3. the doctrine of contributory negligence has often been conflated with various other rules including the defence of voluntary assumption of risk, the defence of illegality, the mitigation of damage principle and the doctrine of provocation; 4. in contrast with what some writers believe, post-tort fault on the part of the claimant should not result in, or be relevant to, the apportionment of damages; 5. the doctrine of contributory negligence is part of the law of remedies and not, as is widely thought, the law of liability; 6. scholars’ concentration on the direct effect of the apportionment legislation has meant that they have failed to notice the legislation’s significant indirect effects on many facets of the law of torts; 7. serious confusion exists as to the permissibility of apportioning responsibility in certain ways; and 8. in opposition to the views of some writers, the apportionment legislation does not apply, and should not apply, to awards of exemplary damages.

Goudkamp, James, Rethinking Contributory Negligence (June 14, 2013) in Erika Chamberlain, Jason Neyers and Stephen Pitel (eds), Challenging Orthodoxy in Tort Law (Hart Publishing 2013).

First posted 2014-09-11 07:15:40

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