Advanced Torts Essay Jason Yeoh

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Walking Away - The Defence of Contributory Negligence and the

Liability of Intoxicated Persons
In analysing the defence of contributory negligence and the liability of intoxicated persons, the Civil
Liability Act 2002 (NSW) (CLA) appears far more concerned with a plaintiff’s responsibility than with
that of the defendant. As a result, the CLA fails to uphold the underlying theme of tort law,
‘corrective justice’. That is, it fails to fulfil the quasi-punitive aspect of tort law. Instead the CLA has
imposed a higher degree of personal responsibility on less deserving plaintiffs, thereby creating a
great imbalance in favour of negligent defendants. The Act unfairly excuses the negligent actions of
defendants merely because the plaintiff also neglected to take reasonable care for his own safety.
Reform must take place to bring the provisions in line with the bilateral nature of the relationship
between plaintiff and defendant to reflect the ‘special morality of tort law’. 1

I Tort law as an instrument of corrective justice

In Perre v Apand,2 McHugh J acknowledged a long-held principle that tort law is ‘an instrument of
corrective justice’.3 At its broadest ‘corrective justice’ is, concerned with restoring “equality”
between parties that have been upset by the infliction of injury by one on the other in the course of
both “voluntary and involuntary transactions”. 4 Thus, to properly fulfil this function, tort law must
focus upon the ‘correlativity’ of parties, requiring those who have harmed others without
justification to be held personally responsible and put the matter right by reparation damages,
specific relief or other means.5 According to Ernest Weinrib, such ‘personal responsibility’ is inherent
in findings of liability reflecting the normative relationship between a particular plaintiff and a
particular defendant.6 As such the idea of a wrong in tort law must be understood as giving legal
expression to the requirements of ‘fairness’ between the parties and of conceptual coherence within
their relationship.

This essay will show that the defences of contributory negligence and intoxication, as they exist in
the CLA, appear to ignore ‘corrective justice’ notions of ‘correlativity’ and ‘personal responsibility’.
Instead they take an extremely one-dimensional approach to the relationship between plaintiff and

1
Ernest Weinrib, ‘The Special Morality of Tort Law’ (1989) 34(3) McGill Law Journal 403-413.
2
[1999] HCA 36.
3
Ibid [103], [151].
4
David Bostock, Aristotle’s Ethics (Oxford University Press, 1st ed, 2000) 80.
5
Sir Anthony Mason, ‘Fault, Causation and Responsibility: Is Tort Law Just An Instrument of Corrective Justice’ (2000) 19
Australian Bar Review 201, 202.
6
Ernest Weinrib, Tort Law as Corrective Justice (19 April 2009) IVR Encyclopaedia of Jurisprudence
<http://ivr-enc.info/index.php?title=Tort_Law_as_Corrective_Justice>.

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defendant. Both defences supply a framework heavily biased towards defendants, allowing
defendants to escape liability merely because the plaintiff also failed to take reasonable care for
their own safety. The defences of contributory negligence and intoxication must be reformed to
come in line with the ‘bilateral moral character’ of tort law where injurers who wrongfully harm
victims have a moral duty to compensate only their victims and victims have a moral right to recover
against their injurers.7 Where this is achieved the ‘corrective justice’ goals will take precedence and
the ‘morality latent in the structure of tort law’ will properly be reflected in the actual law. 8

II Contributory negligence
In 2002 the CLA was enacted. It significantly reformed the common law defence of contributory
negligence. In doing so, the legislature attempted to construct ways to reduce or even negate the
liability of negligent defendants, effectively empowering courts to allow a defendant to walk away
from even the most serious wrongdoing, simply because the plaintiff was also at fault. 9 This is best
seen in section 5R of the CLA which fails to recognise the ‘dualistic’ nature of tort law by imposing on
the injured party the standard of care of a reasonable person in the position of that person at the
time. This standard is determined according to what the person knew or ought to have known at the
time.10 The specific wording of section 5S also reflects this departure from the common law by
allowing a court to disregard the negligence of a defendant even after a plaintiff has successfully
argued he was owed a duty of care and that the duty was breached.

Establishing Contributory Negligence

A plaintiff makes out his or her claim in negligence under the CLA by first establishing a duty of care
was owed to him under section 5B and, secondly, satisfying section 5D. Under Section 5D the court is
required to consider whether the negligence was a necessary condition of the harm and whether it is
appropriate for the scope of the negligent person’s liability to extend to the harm so caused. 11 In
deciding the later element, the court is obliged to consider whether or not and why responsibility for
the negligent conduct should be imposed on the defendant. 12 If these requirements are met, a
defendant can proceed to use the defence of contributory negligence under section 5R to negate or
reduce his or her liability. In determining the contributory negligence of a plaintiff a court applies the
same principles in determining negligence by the defendant in a determination of contributory
7
Jules Coleman, The Practice of Principles (Oxford University Press, 1st ed, 2001).
8
Ernest Weinrib, above n 1, 403-413.
9
Barbara McDonald, ‘The Impact of the Civil Liability Legislation on Fundamental Policies and Principles of Common Law
Negligence’ (2006) 14 Torts Law Journal 299.
10
Civil Liability Act 2002 (NSW) section 5R(2)(a)-(b).
11
Civil Liability Act 2002 (NSW) section 5D(1)(a)-(b).
12
Civil Liability Act 2002 (NSW) section 5D(4).

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negligence. Once a court deems that the plaintiff also failed to take precautions against the risk of
that harm occurring, section 5S allows a court to reduce damages by up to 100 percent by reason of
contributory negligence.

Unfairness of the defence of contributory negligence

The test of contributory negligence fails to uphold ideals of ‘corrective justice’ by taking an
unbalanced approach to the respective contributions of plaintiffs and defendants and how their
actions correlate to the harm and relief awarded. In order words, the CLA fails to fully appreciate the
nature of the relationship between the plaintiff and defendant in which the tort of negligence
occurs; typically plaintiffs are vulnerable to the actions of defendant regardless of the fact a court
may find them to have contributed to the damage suffered. By reviving the old common law
doctrine of contributory negligence as a full defence and ignoring the vulnerability of plaintiffs, the
CLA has created a bias that is significantly in favour of defendants.

In order to fully explain why this bias towards defendants is unfair and should be reformed, it is
necessary to look to the policy goals underlying the introduction of theses sections in the CLA.
In determining contributory negligence section 5R applies the same standard of care to the
defendant as is applied to plaintiffs. The Negligence Review Panel, which made recommendations to
the government on future reform, suggested this section to reflect a ‘widely-held expectation that,
people will take as much care for themselves as they expect others to take for them’. 13 The
sentiment of the panel gained traction in the public at the time due in part to the widespread media
coverage of extremely large sums of money being awarded to successful plaintiffs in negligence
claims.

Although the fundamental idea that people should take responsibility for their own actions is
admirable, it cannot and should not literally mean that a plaintiff is expected to and must take the
same or all of the precautions that a defendant is required to. Such a stance is problematic as it
assumes that the position of the two parties is identical in terms of vulnerability. Barbara McDonald
argues that a case in which both parties are in identical positions is rare. In addition, there is a key
difference between the negligence, on a fundamental level, between the negligence of the two
parties, as the defendant’s negligence resulted in putting other people at risk of harm, either
individually or as a class, while the plaintiff’s negligence was merely to put him or herself at risk. 14

13
Review of the Law of Negligence: Final Report, Canberra, 2002(Negligence Review Panel Report) at para 8.10.
14
Barbara McDonald, above n 9, 295.

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Although these provisions of the CLA have been strongly, and rightly, criticised, it should be
recognised that courts have attempted to soften the effect of these provisions by circumventing
section 5R’s comparative fault by taking the traditional view of a standard of care. In Joslyn v
Berryman15, McHugh J held that it may be that a plaintiff’s contributory negligence is usually given
lesser weight in damages than that of the defendants, but if that was the case it was probably better
explained by the more culpable nature of a defendant’s conduct than by a lesser standard being
applies. 16Arguably judges have avoided using a strict interpretation of section 5R to maintain
notions of ‘fairness’ to the plaintiff.

More problematic than the imposition of the same standard of care on the plaintiff and the
defendant is the fact that, the CLA’s reforms have allowed contributory negligence to become a
complete defence. By doing so the legislature has resurrected a draconian 20 th century rule which
the common law perceived as ‘harsh and unjust’. 17 Justice Hayne only recently argued that a 100
percent ‘reduction’ in liability is a step which apportionment legislation should not permit to uphold
goals of ‘fairness’.18 However the wording of section 5S clearly permits such a ‘reduction’.

A 100 percent reduction appears to defeat all logical reasoning whilst ignoring notions of justice. A
100 percent reduction is illogical because to reach such a conclusion a court will have to find a duty
of care existed, that the defendant was negligent and the necessary causation was present. The
court will then proceed to completely disregard all previous findings in favour of contributory
negligence to such a degree as to effectively hold that the defendant has not been negligent at all.
This strange scenario effectively occurred in the recent case of Mackenzie v Nominal Defendant,19 in
which the trial judge made a 100 percent reduction. However, the Court of Appeal took a different
view of the facts and overturned the decision of the trial judge. 20 Sadly the Court of Appeal further
reasoned that it would have upheld the decision of the trial judge if it had taken the same view of
the facts. The finding of the trial judge that the loss should have borne solely by the plaintiff is an
excellent example of the way in which the law again heavily favours the defendant. The court found
for the defendant regardless of the fact that both the defendant and plaintiff in were both adults,
equally intoxicated, and without finding there was a serious joint illegal enterprise or a duty of care.
In addition, no evidence was found that the plaintiff forced, insisted or even persuaded the

15
[2003] 214 CLR 552.
16
Ibid [16].
17
Barbara McDonald, ‘Teaching Torts in an Age of Statutes’ (2010) 18 Torts Law Journal 184.
18
Wynbergen v Hoyts Corporation Pty Ltd (1997) 149 ALR 25, 27-30.
19
Mackenzie v Nominal Defendant [2005] 43 MVR 315 (NSW CA).
20
Ibid [99] per Giles J.

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defendant to perform the actions which caused the accident. 21 Although this decision was
overturned on appeal, it is demonstrative of the reasoning process of the courts under the CLA.

In establishing contributory negligence as a complete defence the legislature has taken regrettable
and backward steps in the law.22 By imposing a greater degree of personal responsibility on plaintiffs,
the legislative reforms of 2002 have certainly achieved their aims of both making it more difficult for
plaintiffs to succeed and reducing the damages that courts could award to successful plaintiffs. 23
However, there is a degree of irony and hypocrisy in these reforms. The irony lies in the fact that the
notion of ‘personal responsibility’ appears to be one-dimensional. This is because it is only the
plaintiff, and not the defendant, who has been made accountable for his or her actions. In addition
to the fact that such an approach is one-dimensional, this stance is also problematic because it does
not serve corrective justice notions, as discussed above. This is evident in the fact that the
‘correlatively’ of parties is ignored by totally excusing defendants of their personal duties and
responsibilities to others merely because those others also failed to take reasonable care for their
own safety.24

III Intoxication
The troubling nature of these reforms to contributory negligence is particularly evident in context of
negligence claims involving a plaintiff who was intoxicated at the time of the injury. The fact that a
plaintiff was intoxicated at the time of injury has long been accepted as a form of contributory
negligence relevant both to culpability and to causation. However the recent statutory reforms
represent an overreaction to issues of a plaintiff’s culpability on the part of Parliament. 25 Although
there are policy arguments in favour of shifting some of the losses to the victim in cases of
intoxication, the current legislation has failed to strike the right balance. By ignoring notions of
‘corrective justice’, the Act almost entirely overlooks that the defendant’s conduct has been
instrumental in causing damage. As discussed above, this is a result of parliament’s desire to make
people personally responsible for their actions at the expense of the legitimate and worthy pursuit
of compensation and equality where the defendant’s blameworthy conduct has caused damage. 26

21
Ibid [61] per Giles J.
22
Barbara McDonald, above n 9, 295.
23
Justice David Ipp, ‘Themes in the Law of Torts’ (Speech delivered at the Judges’ Review Conference, Sydney, 16 March
2007).
24
Barbara McDonald, above n 17, 186.
25
See generally; Graeme Orr and Gregory Dale, ‘Impaired Judgments? Alcohol Server Liability and “Personal Responsibility”
after Cole v South Tweed Heads Rugby League Football Club Ltd’ (2005) 13 Torts Law Journal 103.
26
Norman Katter, ‘Negligence and Intoxication – Has Civil Liability Reform Gone Too Far?’ (2006) 11 Deakin Law Review
161.

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Section 50 of the CLA provides for a rebuttable presumption of contributory negligence for self-
induced intoxication. Self-induced intoxication is, defined under section 50(1) as being under the
influence of alcohol or drugs, whether or not taken for a medicinal purpose. These provisions are
repeated in other state jurisdictions.27 However, the provisions of the CLA differ significantly from
other states in respect to section 50(2) which effectively treats intoxication as a grounds for denying
liability rather than as contributory negligence. 28 No other state has equivalent or similar provisions
to this section. Under section 50(2) a court will find contributory negligence unless it is satisfied that
the person’s intoxication did not contribute in any way to the cause of death, injury or damage. If
the court is satisfied that there was likely to have been death, injury or damage even if the person
had not been intoxicated, it is presumed that the person was contributory negligent unless the court
is satisfied that the intoxication did not contribute in any way to the death, injury or damage. 29
Where the presumption in section 50(3) applies, there is a mandatory reduction of the damages by
at least 25 percent.30Thus the NSW statute differ significantly by giving a large measure of protection
to defendants at the stage of the court’s considering duty of care and breach in negligence claims
bought by a plaintiff who was intoxicated at the time of injury. Furthermore in analysing the heading
of Section 50 the NSW provision differ by stating that; where a defendant is intoxicated to the extent
that his or her ability to exercise reasonable care is impaired, a court is not to award (at all) unless
satisfied that the injury would have occurred anyway.

Orr and Dale argue that the NSW position is the most defendant-friendly position reached by the
common law and panders to the perceived community view that deems drinking as a social burden,
outside the law’s protection.31 The case of Russell v Edwards32 illustrates the harsh and draconian
nature of the NSW provisions. Here a 16-year old male plaintiff had established all the elements of a
negligence claim – duty, breach and causation of damage – but had to admit that his intoxication
was (also) an essential cause of his injury. Again the defendants were exculpated, the law failing to
note the relationship between parties in making no allowance for age or other physical or mental
capacity of the plaintiff or the greater control, experience or superior position of a defendant.

27
See For example: Wrongs Act 1958 (Vic) ss 14F-14H, Civil Liability Act 1936 (SA) ss 46-48.
28
Graeme Orr and Gregory Dale above n 25, 117-119.
29
Civil Liability Act 2002 (NSW) section 50(3).
30
Civil Liability Act 2002 (NSW) section 50(4).
31
Graeme Orr and Gregory Dale above 25, 104.
32
Russell v Edwards [2006] NSWCA 19.

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IV Reforming the defences

In light of the CLA’s clear bias towards defendants in negligence cases, as seen in recent decisions, it
is clear that the statutory defence of contributory negligence requires reform. The first steps to
reforming this defence is to remove its use as a full defence. Secondly, courts should make
allowances for the personal attributes of the plaintiff in order to better recognise the intricacies of
individuals and the relationships between the plaintiff and the defendant in determining the
standard of care and the degree of responsibility attributed to the plaintiff. Prior to the introduction
of the CLA, judges showed a willingness to take into account personal attributes. For example, in
McHale v Watson, Windeyer J said that characteristics, such as, the age of a child were not mere
idiosyncrasies to be ignored when applying an objective standard to a defendant. 33 Norman Katter
proposes that NSW takes a less severe approach similar to that adopted in civil liability legislation in
force in other states.34 Such an approach would follow other states in allowing damages awarded to
the plaintiff to be reduced as a result of the plaintiff’s intoxication. However, this discretion would
not extend so as to prevent any recovery whatsoever, as is currently the position in New South
Wales.35 This is effectively a return to the law as it was before the CLA was introduced. Katter is
particularly in favour of the adoption of similar provisions to those in force in Queensland. They take
a more prescriptive approach in defining the percentage of the plaintiff’s contributory negligence. 36
Such an approach according to Katter is ‘fair and strikes a balance between recognition of personal
responsibility for one’s actions, and a right to recover some compensation where another’s fault has
cause harm to the plaintiff’.37

V Conclusion
Although the tort of negligence has been harshly criticised in recent years for being too plaintiff-
friendly, and the contributory provisions address these criticisms, there is now a risk that public
sentiment will turn the other way and that cases in which relief is denied completely will be seen by
the public as unfair. As McHugh J has said, there is a real danger the law of negligence will fall ‘into
public disrepute if it produces results that ordinary members of the public regard as unreasonable’. 38
The current defences of contributory negligence and intoxication are ‘unreasonable’, disregarding
principles of ‘corrective justice’ and ‘fairness’ by ignoring the bilateral relationship between the
plaintiff and defendant, and as such warrants legislative change.
33
McHale v Watson (1964) 115 CLR 384.
34
Norman Katter, above n 20, 166-169.
35
Other State Civil Liability provisions include; Civil Liability Act 1936 (SA) ss 46, 47,48; Civil Liability Act 2002 (WA) s5L; Civil
Liability Act 2003 (QLD) ss 46, 47,48,49.
36
See for example Civil Liability Act 2003 (QLD) ss 47,48,49.
37
Norman Katter, above n 26, 169.
38
See Tame v New South Wales (2002) 211 CLR 317, 354.

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Statutes
Civil Liability Act 1936 (SA) ss 46-48.
Civil Liability Act 2002 (NSW) ss 5, 50.
Civil Liability Act 2002 (WA) s5L.
Civil Liability Act 2003 (QLD) ss 46-49.
Wrongs Act 1958 (Vic) ss 14F-14H.

Cases
Joslyn v Berryman(2003) 214 CLR 552.
Mackenzie v Nominal Defendant (2005) 43 MVR 315 (NSW CA).
McHale v Watson (1964) 115 CLR 384.
Perre v Apand Pty Ltd [1999] HCA 36.
Russell v Edwards [2006] NSWCA 19.
Tame v New South Wales (2002) 211 CLR 317.
Wynbergen v Hoyts Corporation Pty Ltd (1997) 149 ALR 25.

Bibliography
Bostock David, Aristotle’s Ethics (Oxford University Press, 1st ed, 2000) 80.

Jules Coleman, The Practice of Principles (Oxford University Press, 1st ed, 2001).

Justice David Ipp, ‘Themes in the Law of Torts’ (Speech delivered at the Judges’ Review Conference, Sydney, 16 March
2007).

Katter Norman, ‘Negligence and Intoxication – Has Civil Liability Reform Gone Too Far?’ (2006) 11 Deakin Law Review 161.

Mason Sir Anthony, ‘Fault, Causation and Responsibility: Is Tort Law Just An Instrument of Corrective Justice’ (2000) 19
Australian Bar Review 201, 202.

McDonald Barbara, ‘Teaching Torts in an Age of Statutes’ (2010) 18 Torts Law Journal 184.

McDonald Barbara, ‘The Impact of the Civil Liability Legislation on Fundamental Policies and Principles of Common Law
Negligence’ (2006) 14 Torts Law Journal 299.

Orr Graeme and Dale Gregory, ‘Impaired Judgments? Alcohol Server Liability and “Personal Responsibility” after Cole v
South Tweed Heads Rugby League Football Club Ltd’ (2005) 13 Torts Law Journal 103.

Review of the Law of Negligence: Final Report, Canberra, 2002(Negligence Review Panel Report) at para 8.10.

Weinrib Ernest, ‘The Special Morality of Tort Law’ (1989) 34(3) McGill Law Journal 403-413.

Weinrib Ernest, Tort Law as Corrective Justice (19 April 2009) IVR Encyclopaedia of Jurisprudence
<http://ivr-enc.info/index.php?title=Tort_Law_as_Corrective_Justice> at 19 October 2010.

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