A Study of Contributory Negligence
Date Issued
2009
Date
2009
Author(s)
Lin, Tzung-Ying
Abstract
Contributory negligence as an element of tort law is provided in Article 217 of Civil Code. The Article states that if an injured person has negligently contributed in causing or aggravating the injury, the court may reduce the amount of compensation or release the compensation entirely. Reduction of damages can take place only if the conditions of contributory negligence are satisfied. Article 217 entails a contributory element from the victim in the sense that the damaged party neglects the duty of care for oneself; causation and tortious capacity as requirements of fault liability are also conditions of contributory negligence. However, the meanings and scope of these conditions are ill defined. As such, the difference between the conditions and consequence of contributory negligence has caused confusion in practice. The objectives of this study were thus to compare the German legal system and European principles as they relate to tort law and to propose possible solutions through analysis of theories and case studies.ontributory negligence requires the damaged party to take reasonable care of its own interest. The theoretical basis for this requirement is the burden of self-protection, namely, the duty of care concerning an individual’s own affairs. Article 217 states that contributory negligence should be considered not only when the damage is caused by positive self-endangering actions of the damaged party, but also when the damaged party neglects to take positive self-protecting measures to avert or minimize potential damages. Contributory negligence can also be established if the victim, while fully aware of the circumstances, undertakes an activity or participate in a situation involving an unusually high degree of danger. The principles of justice and fairness between tortfeasors and victims are important in defining the obligations of the damaged party. While considerations should be given to prevent tortfeasors from unnecessary heavy liabilities, fairness and reasonableness should also be ensured for the injured party.enerally, the standard of care can be established by considering the actions of a reasonably prudent person. However, in the case of contributory negligence, the legal practice tends to allow for subjective factors of the victim. Although the standard of care required of the damaged party is the same as that of the tortfeasor, exceptions may be made for certain populations. According to the provisions of Bürgerliches Gesetzbuch (BGB), contributory negligence can be disregarded if the victim is underage or handicapped in cases of traffic accidents.n a legal environment of strict liability, the interpretation of contributory negligence tends to be broad, and courts may expand the scope of contributory negligence to an extent such that compensations are excluded completely. Unreasonably strict definitions of a specific provision’s protective purpose, combined with the application of the controversial theory of superseding cause, make it increasingly difficult for plaintiffs to request compensations. The justification of contributory negligence under the legal system of No-Fault Compensation and Compulsory Liability Insurance is also problematic if the purpose of efficient compensation is not achieved.he reduction of compensation occurs upon the satisfaction of all the conditions of contributory negligence. The most likely consequence of contributory negligence is a distribution of damages between the tortfeasor and the victim in the form of quotas; however, how these damages may be distributed remains elusive in practice. This study proposes that the court should first conduct an appropriate apportionment procedure by balancing the casual contributions of the liable and the injured parties. Subsequently, an equitable adjustment procedure may be performed by considering the extent of blameworthiness and other factors, such as socioeconomic status. As a result, the consequences of contributory negligence may become more predictable.
Subjects
contributory negligence
duty of care for oneself
assumption of risk
superseding cause
strict liability
No-Fault Compensation
SDGs
Type
thesis
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