Difference between contributory and comparative negligence

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Difference between contributory and comparative negligence

Contributory negligence is a defense to a claim of negligence where a defendant argues that, it is the plaintiff’s act or omission which has to a large extent contributed to the damage occasioned. This type of act or omission is of such a nature that it is proper to describe it as HYPERLINK “http://www.duhaime.org/LegalDictionary/N/Negligence.aspx”negligence. It is applied where both the defendant and the claimant are both guilty of negligence materially contributing to the injury. In Badger v Ministry of Defense [2005], a company had employed a boiler who during the course of his work was exposed to asbestos. The asbestos caused him to develop asbestosis where he developed lung cancer and eventually died. The defendant was smoking and therefore contributed to this negligence that resulted to his death. The court held that the defendant was not careful enough for his own safety and could therefore not recover any damages (White 2002).

Comparative negligence on the other hand is a rule of law that is applied in cases of accident. It is used to determine the responsibility and damages in an accident which is usually based on the negligence of all parties to the accident. It is also called non-absolute contributory negligence. It reduces the amount of damages that a plaintiff is awarded in a claim of negligence. When this defense is used, the court must make a decision on the degree to which the negligence of the plaintiff combined with negligence of all other actors relevant to the case in question contributed to the plaintiff’s damages. In real sense this doctrine has a modified the doctrine of HYPERLINK “http://en.wikipedia.org/wiki/Contributory_negligence”contributory negligence which does not allow award of damages to a plaintiff who has negligently contributed to his loss (Caroll, 2009).

Contributory negligence was historically a common law defense for in tort case. If two people were involved in an accident, the person injured could recover for his/her injuries and damages only if they did not in any way contribute to the accident.  This was based on a doctrine that established that a person whose negligence caused injury to another person could not be held liable if the injured person contributed in a way to his own injury. This could be so even if it was a very small factor that contributed to the loss.  For example, if John and Jane were involved in an accident and Jane suffered some injury, and Jane was at fault to an extent of 5%, she would get no recovery in damages. This method has harsh results and has resulted in most states moving from the strictness of pure contributory negligence to form of a comparative negligence system (Caroll, 2009).

In a comparative negligence system, the claimant could still recover a part of his or her damages. This is not withstanding the fact that she caused the accident through some of her actions. I.e. she recovers even though he or she was in part to blame for the accident. A Claimant’s recovering financially could be reduced, or denied. This is dependent on how claimant’s actions contributed to the accident.  If a state is using a comparative negligence system, a judge decides the proportion of blame assign to each party.  In Walker v. Maine General Medical Center, 2002, the issue involved a claim of medical malpractice.. The widow of a patient who died said that the court have given her $1.2 million as damages for the death of her husband. The court apportioned damages using the principle of comparative negligence according to the extent of negligence of each party (White 2002).

In this case where the physician advised his patients that an X-ray was necessary to determine whether or not his tibia had been fractured and because of the cost of the procedure, the patient refused and the patient then sued the physician stating that he had been negligent in not ordering an X-ray qualifies as comparative negligence. This is because in Comparative negligence, compensation to be made is determined based on a comparing the defendant’s negligence with that of the claimant. The claimant does not recover any damages as a result of her contribution to her injury. No negligence was on the part of the doctor as he advised the patient of the dangers of not having an X-ray.

References

White. L. Duncan, G. (2002). Medical-surgical nursing: an integrated approach Edt2. Stamford. Cengage Learning.

Carroll. R. (2009) Risk Management Handbook for Health Care Organizations Edt 5.River Street, Hoboken U.S. John Wiley and Sons.