Contributory negligence (or comparative negligence) arises when an injured person's lack of care contributed to the harm or injury they suffered. The defendant can claim this as a full or a partial defence. If the court finds that a plaintiff was contributorily negligent, this can reduce or eliminate the defendant's liability for the plaintiff's injury.

Each of the States and Territories in Australia have different regulations on negligence. The Civil Liability Act 2002 governs negligence claims in NSW. This article discusses legal matters pertaining to contributory negligence.

What Does Contributory Negligence Mean Under the Law?

Generally, negligence occurs when a person fails to do something leading to injury, damage or loss to another person.

Under the Civil Liability Act, negligence means failure to exercise reasonable care and skill. Hence, failing to use appropriate care or failing to take into consideration the potential harm it may cause others will result in negligence.

A party can make a claim of negligence where a person or entity owes a duty of care to someone, breached that duty of care, and as a result, caused injury or damage.

However, a person or organisation can raise the defence of contributory negligence if someone is suing them for negligence. By raising this defence, the defendant claims that the plaintiff contributed in some way to the injury they suffered.

Contributory Negligence occurs when a plaintiff, or the injured party, did not exercise reasonable care for their safety. The court evaluates the degree of fault between both parties. If the court sustains the defence, the injured party will share responsibility for the accident that led to their injury.


A few common examples of where contributory negligence can be a claim as defence include instances where:

  • A person who sustained an injury in a car accident failed to wear a seat belt,
  • A person's intoxication contributed to the injury they sustained,
  • A worker suffered an injury while failing to wear proper safety equipment or not following company safety procedures,
  • A driver who failed to see a car and turn to the other direction because they were texting on the phone,
  • A slip or fall occurring as a result of the injured person's failure to keep a lookout for their own safety where there is a reasonable expectation that they could do so, or
  • Engaging in a high-risk activity, such as diving into water from a pier.

What Is the Standard for Contributory Negligence?

Under Section 5R of the Civil Liability Act, courts must consider the following to determine whether contributory negligence exists:

(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and

(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.

Hence, the standard of care that is considered is that which a reasonable person, in the position of the person who suffered the harm, and with the knowledge they had or ought to have had at the time, would have taken in the circumstances.

"Reasonable Person"

A "reasonable person" includes someone approaching a situation with appropriate caution and taking practical action. "Reasonable care" is when someone considers their safety and the safety of others in the same circumstances or in a manner that an ordinary and rational person would. It is a minimum standard of behaviour and conduct.

How Does Contributory Negligence Affect Liability?

Contributory negligence can be a whole or partial defence. In NSW, the percentage of liability of negligence found will affect the amount of compensation awarded to the plaintiff. The amount of compensation awarded is reduced according to the percentage that the plaintiff's negligence is found to have contributed to the harm or injury.

For example, if a court determines that the plaintiff's contributory negligence caused 20% of the injury, the liability of the defendant reduces by 20%. In this case, the defence acts as a partial defence.

However, Under Section 5S of the Civil Liability Act, a court may determine a reduction of 100% if the court thinks it just and equitable to do so. Hence, it is possible that the plaintiff's negligence could be assessed as 100% of the cause of the injury. In this case, the defence acts as a complete defence.

How To Prove Contributory Negligence

It is the defendant who has the burden of proof to establish negligence on the plaintiff's part. The defendant must prove that the injured person failed to abide by a standard of care that a reasonable person would have exercised in the same situation.

In addition, contributory negligence cannot be raised as a defence if there is any malice or intentional conduct on the part of the defendant. Contributory negligence is not available as a defence if the defendant's negligence amounts to malicious or intentional wrongdoing as opposed to ordinary negligence.


Under Section 49 of the Civil Liability Act, intoxication of a person is irrelevant to either the existence of the duty of care, or the standard of care owed to that person.

The leading case in Australia that discussed the duty of care owed to intoxicated persons is Cole v Sth Tweed Heads Rugby Club [2004] HCA 29. In this case, the High Court held that in ordinary circumstances, no duty of care is owed by the licensee of premises to a person who is served alcohol where that person becomes intoxicated and gets injured as a result.

Can Children Be Contributorily Negligent?

In Australia, children over five years of age can be contributorily negligent. Courts assess the child's level of understanding and state of knowledge. The expectation is that they should conform to the same standard that is appropriate for their age and experience.

If there is a claim against a child, courts consider the child's capacity to foresee the consequences of their actions (McHale v Watson [1966] HCA 13).

The Importance of Seeking Legal Advice

If you are facing charges involving negligence, it is highly advisable to seek legal advice. JB Solicitors has a team of experienced lawyers that can offer you legal representation and specific legal advice for your situation. We can plan your defences and ensure that you get the best outcome from your case.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.