Contributory negligence should not be considered in assessing damages

11.60 The ALRC does not propose that contributory negligence be included as a factor to be considered by a court to reduce an award of damages. Under state apportionment legislation, a court may reduce an award of damages in certain claims to the extent that the plaintiff was at fault,[78] but only where the defence of contributory negligence would have been a complete defence at common law. Contributory negligence is not a defence at common law to intentional torts and the apportionment legislation therefore does not apply to such claims.[79]

11.61 Including contributory negligence as a factor in the assessment of damages would be inconsistent with the fault element of the proposed statutory cause of action which limits liability to intentional or reckless conduct.