Contributory Negligence PDF

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negligence that is diminished by the plaintiff ...

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Contributory Negligence 1. Intro ss.3 CLA & 3 LRCNAL (definition). s. 7 LRCNAL + Pennington v Norris (Just & Equitable). s. 44 CLA (Same standard P&D). 2. s. 50(1) CLA Must use section. 3. s. 50(2) CLA Damages (if not given, imagine number).

AUD $ [X]

4. s. 50 (3) (a) CLA 1. General contributory negligence Common Law (No statutory factors unless not within scope) 2. Intoxication P ss. 3, 46, 48 CLA + Robbins v Skouboudis (presumption unless rebutted) 5. s. 50 (3) (b) CLA Decide percentage (+ Pennington v Norris: culpability) (Entirely discretionary for CN, at least 25/50% for intoxication) 6. 50 (3) (c) CLA Take % off

7. s. 50 (4) Fixed statutory deductions in series. 1. Intoxication D ss. 3, 47, 48 CLA + Allen v Chadwick (Irrebuttable presumption unless exception) (25% OR 50%)

2. Seatbelt/Helmet/Passenger Compartment s. 49 CLA + Allen v Chadwick (Irrebuttable unless exception) (Act of stranger? – Allen v Chadwick) (25%)

[Y] %

AUD $ [X] – [Y] % -------------------Total 1

Total 1 – 25/50% ---------------------Total 2

Total 2 – 25% ---------------------Total 3

For example: Alex and Bennie have been out drinking. Alex arrived on his motor cycle and Bennie in his dad’s car. The two young boys got rather drunk (BAC 0.08) and Bennie got a little worried about driving his dad’s car (a shining Mazerati) back to his parents’ home. The boys therefore agreed that Alex would give Bennie a lift on his motor cycle. The boys get on Alex’ motor cycle and Alex puts his helmet on (there is no spare helmet for Bennie). As they cruise along Goodwood Road, Bennie realises he needs to use the loo and wants Alex to stop at the nearest gas station. He therefore starts patting Alex on the shoulder, but in his drunken state, the pat is more like a good beating. As a result, Alex loses control over the motor cycle and they smash into a tree on the side of the road. Bennie sues Alex, Alex argues contrib. negl.

This is just a quick set-out to get the ‘calculus’. You will have to actually describe the different elements and give arguments where relevant. Also, DO NOT DO ANY ACTUAL CALCULATIONS DURING THE EXAM, just use ‘Total 1’, ‘Total 2’ etc.

Intro (See above.) s. 50 (1) Use section. s. 50 (2)

(e.g.) AUD $ 1,000,000

s. 50 (3) (a) 1. General negligence by distracting driver/pat-beating. 2. P is drunk (cannot be rebutted), BAC below 0.15. s. 50 (3) (b) Considering culpability, 20% for 1 and 25% for 2. s. 50 (3) (c) Deduct 45%.

s. 50 (4) 1. D is drunk (no exception), BAC below 0.15. 25% deducted.

2. P is not wearing a helmet (no exception). 25% deducted.

45%

$1,000,000 – 45% -----------------------Total 1: $ 550,000

Total 1 ($ 550,000) – 25% ----------------------Total 2: $412,500 Total 2 ($ 412,500) – 25% -----------------------Total 3: $ 309,375...