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Contributory negligence under the TPA – Will the High Court be able to continue its protection of the careless consumer?

By Amanda P. Stickley

Abstract

In 2004 apportionment was introduced to the Trade Practices Act 1974 (Cth) - a new subsection was inserted into s 82 of the Act enabling a court to take into account a claimant's own failure to exercise reasonable care and reduce the damages awarded. The introduction of contributory negligence as being relevant in assessing damages under s 82 for misleading or deceptive conduct will test the tension that exists between the principles of consumer protection and the concept of personal responsibility. The High Court has in the past refused to apply contributory negligence to claims under s 82 despite much criticism and arguments for a just and equitable determination of responsibility for damage suffered. This article examines the tensions between the principles of consumer protection, previously guarded by the High Court in its interpretation of the Act, and the imposition of personal responsibility through the new s82(1B) on the careless consumer. It questions whether the new provision will undermine the policy of consumer protection and where the High Court may draw the line in its protection of the careless consumer by examining scenarios that commonly arise involving a lack of reasonable care on the part of the claimant

Topics: Trade Practices Act, contributory negligence
Publisher: LexiNexis Butterworths
Year: 2006
OAI identifier: oai:eprints.qut.edu.au:10247

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