Archive for contributory negligence

Oz standards not dispositive

Harrington Estates (NSW) Pty Ltd t/as Harrington Grove Country Club v Turner [2016] NSWCA 369
NEGLIGENCE – liability of occupier – liability of landscape architect – patron injured as stepped into garden bed in Club car park – true depth of garden bed obscured by vegetation – primary judge found Club liable but architect not liable – both Club and architect liable for patron’s injury – no appellate interference with assessment of contributory negligence – statutory contribution between Club and architect 75% : 25%

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Contributory negligence under the CLA

Accordingly, the existence and extent of a claimant’s contributory negligence is to be assessed by reference to the risk of harm which is the subject of his or her claim for damages, and the precautions that a reasonable person in the claimant’s position would have taken against that risk: Gordon v Truong (2014) 66 MVR 241; [2014] NSWCA 97 at [14] – [15] (Basten JA).


The question of whether a person has been guilty of contributory negligence is to be determined objectively – whether the plaintiff had taken that degree of care for his or her own safety that an ordinary reasonable person would take: Boral Bricks Pty Ltd v Cosmidis (No 2) (2014) NSWLR 393; [2014] NSWCA at 139 at [54] (McColl JA); see also at [94] (Basten JA, Emmett JA agreeing).