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

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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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