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Contributory negligence

1987 Act section 151N>>
Civil Liability Act 2002 section 5R et fol >>
Law Reform (Miscellaneous Provisions) Act 1965 s 10 Workers compensation and contributory negligence>>

Pollard v Baulderstone Hornibrook Engineering PL & Anor [2008] NSWCA 99. McColl JA, Mason P and Beazley JA agreeing.

On contributory negligence, McColl JA said [13]:

At common law, a plaintiff is guilty of contributory negligence when the plaintiff exposes himself or herself to a risk of injury which might reasonably have been foreseen and avoided and suffers an injury within the class of risk to which he or she was exposed: Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 at [16] per McHugh J.

Summary >>

Almario v Varipatis (No 2) [2012] NSWSC 1578 (21 December 2012) Campbell J

Contributory negligence

  1. The defendant says that if liable, the plaintiff is guilty of contributory negligence in as much as his conduct in the past constitutes an obdurate refusal to diet, and he has failed to avoid alcohol even after his cirrhosis and liver failure were diagnosed.
  1. The defendant carries the onus of making good this partial defence and by dint of s5R the standard of care required by the person suffering harm is the standard of a reasonable person in his position. The general principles established by s5B apply to contributory negligence.
  1. There is no doubt that as a matter of law lifestyle choices by an injured plaintiff may form a factual basis for a finding of contributory negligence. The Commonwealth v McLean (1996) 41 NSWLR 389 was a case in which a plaintiff alleged that throat cancer was caused by the defendant's negligence. Part of the chain of causation was drinking alcohol and smoking to alleviate the stress he suffered as a result of a collision between the HMAS Melbourne and HMAS Voyager. The defendant sought leave to amend its defence to rely upon those lifestyle choices made by the plaintiff as contributing to the throat cancer. The Court of Appeal held that there was no legal objection to the proposed defence.
  1. To my mind, it is open to Dr Varipatis to argue that the plaintiff's failure to accept advice to manage his obesity by dieting and exercising over the decade or more before preceding his liver cancer constitutes contributory negligence.
  1. Although the defendant carries the onus, the plaintiff's position in regard to the matter is not improved by his inability to explain himself because of his denial that he had received appropriate advice and his related failure to provide an explanation of his inability to follow it. Anyone can appreciate the difficulty of dieting on a long-term basis. Also, it is conceptually difficult to postulate a reasonable man as a person in the position of the plaintiff, with his morbid obesity and significant health issues.
  1. Moreover, a question arises about the correct identification of the relevant risk of harm against which the plaintiff had to protect himself. There is no evidence that anyone gave him any specific advice about the relationship between his obesity and the risk of progressive liver disease having the dire consequences he has now suffered. It seems improbable that any such advice was given to him, given that the interrelationship of obesity, diabetes and liver disease was not clearly understood until 2002. On the other hand, one must infer that as every doctor told him to get thin, some explanation must have been given of some of the specific health risks to which his obesity subjected him.
  1. Considering the matter in terms of s5B, the best that can be said is that there was a foreseeable and not insignificant risk of serious illness unless he reduced his weight to a healthier level. This is the same risk of harm in general terms that I have identified in relation to the ground of negligence in respect of which the plaintiff has succeeded on the issue of causation.
  1. It seems to me that a reasonable person in the position of the plaintiff would have taken the precaution of dieting given there was a relatively high degree of probability that serious illness would overtake him unless his obesity was overcome and that that harm could well be grave. One should not however underestimate the burden of overcoming a weight problem especially one as large as Mr Almario's.
  1. As I have found already, obesity is a medical condition, and is susceptible to medical treatment. Although I am satisfied that in not adhering to the opportunities he has been given in the past to diet, the plaintiff has been guilty of contributory negligence, in terms of the apportionment of responsibility between him and Dr Varipatis, I am of the view that the failure to provide reasonable medical treatment by way of referral for bariatric surgery is more significant in terms of the degree of departure from the standard of the reasonable man, and of causative potency in bringing about the specific injuries which have occurred. Medical science understands the enormity of the task confronting the obese. It seems to me that as between the defendant and the plaintiff, responsibility should be apportioned at eighty percent to Dr Varipatis and twenty percent to Mr Almario.

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