Liability and Contributory Negligence

Question: Discuss about the Liability and Contributory Negligence. Answer: Introduction: In this question, Rebecca and Michelle had gone to attend a performance by Oprah Winfrey. However as a result of a ticketing issue at the box office, the performance got delayed. Therefore, both of them drank wine at a bar while waiting for the performance to start. After the performance, Rebecca knew that Michelle was too drunk but still she decided to ride with Michelle in a car. But after some time, as Michelle was driving to unsafely, Rebecca told her to stop the car as she wanted to get out. But Michelle did not stop the car and after some time the car collided. Rebecca underwent serious injuries in the accident including a broken leg. As a result, now Rebecca wants to know if she can hold Michelle liable and also the effect of the defense of contributory negligence on this case. The law of tort describes contributory negligence as claimants behavior that has contributed in the injury of the claimant because the claimant did not fulfill the standard of care that would have been exercised by any other person under such circumstances for the purpose of avoiding the injury or to avoid the loss that was suffered by the claimant (Mason, 1987). Therefore generally a party facing a claim for negligence uses the defense of contributory negligence. However, the defense of contributory negligence is available only if the defendant is in a position to establish that it was also the fault of the claimant in some way and such fault has also contributed in part, regarding the injury that has been suffered by the claimant (Seddon, 1999). For this purpose, the defendant is also legally required to establish that in case it was just and equitable if the damages payable to the claimant are reduced so that the fault on part of the claimant can be considered (Legg, 1999) Therefore in such cases, the burden is on the defendant to prove that the claimant has also contributed in negligence. An example in this regard can be given of Dann v Hamilton (1939), when the claimant accepted the lift offered by the defendant even while being aware that the defendant was too drunk. The court stated that the defense of volenti non fit injuria will not be applicable in such a case. But the situation would be different if extreme circumstances were presen t, for example if the driver was so down that the drunkenness of the driver was obvious and thus it can be said that an obvious and glaring risk was accepted by the plaintiff (Palmer and Davies, 1980). Owens v Brimmell (1977) also needs to be discussed in this regard. Both the driver and passenger took wine. When they were returning home, the driver lost control and the car hit a lamp post. While deciding the case, the Court of Appeal stated that the passenger has also contributed in negligence because the passenger decided to ride with the defendant even when he was aware of the fact that the driver had consumed alcohol in a large quantity and as a result, it was difficult for the driver to drive safely and properly. The passenger can also be held liable for contributory negligence when the driver was aware of the fact that on the way back, the car will have to be driven by the companion but still the passenger accompanied the driver in excessive drinking. Therefore in such cases, although the defense of volenti non fit injuria is not applicable however the amount of damages awarded to the claimant can be reduced due to the contributory negligence of the claimant. Similarly in Astley v Austrust Limited (1999) , the matter before the court was if the claimant was responsible for contributory negligence because under the contract, it was decided by the defendant to protect the claimant from any loss/damage that may be caused due to the breach. In this case, the court also have to consider if the damages awarded to the plaintiff for the breach of contract can be reduced in view of plaintiffs contributory negligence. The answer given by the High Court to the first problem was in affirmative, the unsettled the second question was negative. However in view of this decision, in most of the states in Australia, amendments have been introduced to reverse the effect of the decision given in this case (Lockhart, 1989). In the present question, Rebecca and Michelle took wine while there were waiting for the show of Oprah Winfrey to start. But while returning back, Rebecca knew that Michelle was too drunk and therefore she cannot drive properly. Still Rebecca accepted to sit with Michelle. Similarly when they were consuming wine, Rebecca knew very well that the car will be driven by Michelle on their way back but she joined her in excessive drinking. But when it became clear that mission could not drive safely, Rebecca wanted to get out. Nonetheless, Michelle kept on driving and the car crashed and Rebecca underwent serious injuries. In this case, under the circumstances, Rebecca has suffered the injuries on account of the negligence of Michelle and at the same time, Michelle had breached the duty of care towards the persons who were riding with her in the car. On the other hand, it can be claimed by Michelle that Rebecca knew very well that Michelle was done when she accepted the ride. Consequently, the risk has been voluntarily assumed by Rebecca. Or in other words, it can be said that Rebecca had also contributed in the negligence due to which she had suffered the injuries. Therefore, Rebecca can sue Michelle for the injuries suffered by our but at the same time Michelle can also claim the defense of contributory negligence due to which the amount of damages awarded to Rebecca may be reduced. References Legg, M. (1999) 'The High Court's Decision on Contractual Liability and Contributory Negligence in Asrtey v Austrust Ltd 17 Aust Bar Rev 262 Lockhart C. (1989) 'Contributory Negligence as a Defence to a Claim for Breach of Contract: Arthur Young Co I, WA Chip Pulp Co Pty Ltd' 19 UWAL Rev 411 Mason, K. (1987) 'Contract and Tort: Looking Across the Boundary from the Side of Contract' 61 ALJ 228 Palmer, N.E. and Davies P.J. (1980) 'Contributory Negligence and Breach of Contract: English and Australasian Attitudes Compared' 29 Int Comp LQ 415 Seddon, N. (1999) 'Contract Remcdics where both Parties are at Fault' Remedies Teachers Conference (Melbourne) 7 Astley v Austrust Limited, 1999, 197 CLR 1 Dann v Hamilton [1939] 1 KB 509 Owens v Brimmell [1977] 1 QB 859