1. Contributory negligence
Contributory negligence applies where the plaintiff failed to take reasonable care for his or her own safety, and that failure contributed to the damage suffered. It does not defeat the claim altogether, but reduces damages to such an extent as the court thinks just and equitable having regard to the plaintiff’s share in the responsibility for the damage.
Contributory negligence recognises that an accident may have more than one cause. The defendant may have been negligent, but the plaintiff’s own lack of care may also have played a part in causing the injury, or in making it worse. In such a case, the law apportions responsibility between them.
In Hong Kong, contributory negligence is governed by the Law Amendment and Reform (Consolidation) Ordinance (Cap. 23). The court therefore asks 3 questions:
- Did the plaintiff fail to take reasonable care for his or her own safety?
- Did that failure contribute to the damage suffered?
- If so, to what extent should damages be reduced in a way that is just and equitable?
The standard is objective. The question is whether a reasonable person in the plaintiff’s position would have acted differently to avoid the risk of harm. However, the court takes account of the circumstances facing the plaintiff at the time, including the pressures of the moment, the seriousness of the danger, and any relevant characteristics such as youth where the plaintiff is a child.
It is not sufficient that the plaintiff behaved carelessly in some general sense. The carelessness must have contributed to the damage suffered. In other words, the plaintiff’s lack of care must be sufficiently connected to the injury.
If contributory negligence is established, the court must decide what reduction is just and equitable. This is not a precise mathematical exercise. The court considers both:
- the relative blameworthiness of the parties; and
- the causative potency of their respective acts, that is, how important each party’s conduct was in bringing about the damage.
The result is expressed as a percentage reduction in the plaintiff’s damages. For example, if the total damages are assessed at $100,000 and the plaintiff is held to be 30% contributorily negligent, the plaintiff will be awarded $70,000.
Typical examples of contributory negligence include:
- failing to keep a proper lookout when crossing the road
- ignoring a traffic signal or crossing when it is unsafe
- travelling without a seat belt where that contributes to injury
- accepting a lift from an obviously intoxicated driver
- using dangerous equipment in an obviously unsafe way
- ignoring a clear and obvious danger
For more information on the contributory negligence on the part of children and parents, please refer to “Children as plaintiffs” and “Parents as plaintiffs”.
