Date: Sat, 24 Mar 2007 14:03

From: Harold Luntz

Subject: Contributory negligence in strict liability?

In Higgins v. William Inglis & Son Pty. Ltd. [1978] 1 NSWLR 649, a scienter action involving a bull, the NSW Court of Appeal cited conflicting text book views on whether contributory negligence is a defence to an action based on strict liability and then reviewed three pre-apportionment English decisions, concluding:

I think it proper to deduce from the way in which emphasis has been placed in these decisions on the view that the plaintiff's conduct was really the only cause, that mere contributory negligence was not a defence to an action founded on the strict liability incurred by the owner of an animal who kept it with knowledge of its dangerous tendencies.

The decision that contributory negligence was not a defence at common law and therefore did not provide a partial defence under the apportionment statute as worded at the time has been followed in at least two subsequent Australian cases.

Harold Luntz.

At 12:11 AM 25/03/2007, David Cheifetz wrote:

In passing, the strict liability basis of the plaintiffs' claims in Cowles was scienter, not Rylands, but that's not germane to the point under discussion.

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