What Is Contributory Negligence in a Road Accident Claim?

Almost every defended MVIL trial includes an allegation that the plaintiff was partly to blame. The law on the point is statutory and the arithmetic is simple, but the percentages depend heavily on the facts.

What counts as fault

“Fault” is defined in section 39 as negligence, breach of statutory duty or other act or omission giving rise to liability in tort, or which would, apart from Part IX, have given rise to the defence of contributory negligence. Section 40(3) requires the court to find and record the total damages that would have been awarded without the reduction, so every judgment states both the full assessment and the percentage. Section 40(5) and (6) extend the principle to death claims: the deceased’s own fault reduces the dependants’ damages proportionately, and a dependant who was partly at fault has his own share reduced.

Section 40 also settled a doctrinal question. In Brown v MVIT [1980] PGLawRp 610; [1980] PNGLR 409 the court held that the statutory apportionment provisions take precedence over the common law defence of volenti non fit injuria. A passenger who gets into a car with a driver he knows to be drunk has not consented to be injured; he has been careless, and the remedy is a reduction, not a complete bar.

The range of reductions

The Supreme Court’s reasoning in Pojari shows how the percentage is reached. The deceased rode pillion without a helmet after drinking with the rider, who then drove at excessive speed. The trial judge found him 10 per cent at fault; the Supreme Court held the judge “erred in not properly analysing the evidence and assessing the deceased’s own culpability in terms of his voluntary assuming of risk” and fixed it at 30 per cent. The rider’s bad driving remained the major cause; the passenger’s choices were a real but lesser one.

Where the defence failed

The plaintiff is not at fault merely because he was there. In Moka v MVIL [2004] PGSC 38; SC729 two men pushing their broken-down vehicle off the road were struck by a truck; the Supreme Court set aside the 50 per cent reduction imposed at trial. In Wai v MVIL [2006] PGNC 193; N2974 a bus driver forced over a cliff by a passing truck “had acted as a reasonable driver” and the defence was not sustained. In Vali v MVIL [2022] PGNC 225; N9654 a pedestrian struck on a public street was found not contributorily negligent. And in MVIT v Tabanto [1995] PGSC 16; [1995] PNGLR 214 the Supreme Court refused to treat riding in the back of a non-PMV vehicle as negligent in itself.

It must be pleaded

Contributory negligence is a defence, and MVIL must plead it with particulars. In Alo v MVIT [1992] PGLawRp 629; [1992] PNGLR 487 a claim of contributory negligence raised at trial without notice was rejected. In Tabanto the Trust had pleaded it in paragraph 4 of its defence, which is why the Supreme Court considered it at all. A plaintiff facing the allegation should look first at the defence to see whether, and how, it has been raised.

How the reduction is applied

The percentage is applied to the whole assessment before interest. In Dinogo general damages of K25,000 were reduced by 15 per cent (K3,750) to K21,250, and interest was then calculated on the reduced past component. In Moka v MVIL [2001] PGNC 90; N2098 at first instance each head — general damages, future economic loss — was separately reduced by 50 per cent. Where the plaintiff has also failed to mitigate his loss, for example by refusing recommended surgery, a further reduction is made under the ordinary rules of damages, as in MVIT v Pupune [1993] PGLawRp 537; [1993] PNGLR 370; that is not contributory negligence but is often confused with it.