The decline of contributory negligence and apportionment: Choosing the black or white of all-or-nothing over many shades of grey?

Research output: Contribution to journalArticleResearchpeer-review

Abstract

In a range of decisions in contract, equity and under the Trade Practices Act,the High Court has rejected the possibility of the apportionment of damagesas a result of a plaintiff’s contributory fault. Instead, the trend of decisions istoward an all-or-nothing approach to the award of damages: either a plaintiffsuccessfully establishes that the defendant’s conduct caused the loss andrecovers fully or else a defendant establishes that some intervening event(including perhaps the plaintiff’s conduct) breaks the chain of causation andthere is no recovery Such a trend is to be regretted. However, itsresonances may even be beginning to be felt in torts law, where some caseshave denied that a defendant owes a duty of care, or has breached suchduty if owed, in part because of some failure by the plaintiff to have regardfor his or her own safes
Original languageEnglish
Pages (from-to)51-67
Number of pages17
JournalTorts Law Journal
Volume11
Issue number1
Publication statusPublished - 2003
Externally publishedYes

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title = "The decline of contributory negligence and apportionment: Choosing the black or white of all-or-nothing over many shades of grey?",
abstract = "In a range of decisions in contract, equity and under the Trade Practices Act,the High Court has rejected the possibility of the apportionment of damagesas a result of a plaintiff’s contributory fault. Instead, the trend of decisions istoward an all-or-nothing approach to the award of damages: either a plaintiffsuccessfully establishes that the defendant’s conduct caused the loss andrecovers fully or else a defendant establishes that some intervening event(including perhaps the plaintiff’s conduct) breaks the chain of causation andthere is no recovery Such a trend is to be regretted. However, itsresonances may even be beginning to be felt in torts law, where some caseshave denied that a defendant owes a duty of care, or has breached suchduty if owed, in part because of some failure by the plaintiff to have regardfor his or her own safes",
author = "Joachim Dietrich",
year = "2003",
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volume = "11",
pages = "51--67",
journal = "Torts Law Journal",
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}

The decline of contributory negligence and apportionment: Choosing the black or white of all-or-nothing over many shades of grey? / Dietrich, Joachim.

In: Torts Law Journal, Vol. 11, No. 1, 2003, p. 51-67.

Research output: Contribution to journalArticleResearchpeer-review

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AB - In a range of decisions in contract, equity and under the Trade Practices Act,the High Court has rejected the possibility of the apportionment of damagesas a result of a plaintiff’s contributory fault. Instead, the trend of decisions istoward an all-or-nothing approach to the award of damages: either a plaintiffsuccessfully establishes that the defendant’s conduct caused the loss andrecovers fully or else a defendant establishes that some intervening event(including perhaps the plaintiff’s conduct) breaks the chain of causation andthere is no recovery Such a trend is to be regretted. However, itsresonances may even be beginning to be felt in torts law, where some caseshave denied that a defendant owes a duty of care, or has breached suchduty if owed, in part because of some failure by the plaintiff to have regardfor his or her own safes

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