The variable standard of care, contributory negligence and volenti

Abstract

One of the problems which arises in the tort of negligence is where the plaintiff is aware of certain characteristics of the defendant which indicate that the defendant is incapable of achieving the usual standard of care, and yet the plaintiff enters into or continues a relationship with that person. Entering a car driven by a drunk driver is a simple example. There seems to be a common feeling that such a plaintiff is ‘less deserving’ and that it is a necessary consequence of the fault system that he should bear at least part of the responsibility for his loss. Recent developments, particularly in Australia, have suggested different approaches to this problem which raise issues about the nature and role of the standard of care, as well as about the relationship between the standard of care and various defences to negligence.