Contributory negligence in tort law : a comparative review in the light of the process of European harmonisation

Abstract

The thesis deals with the defence of contributory negligence in Tort. The introductory chapter establishes that in order for contributory negligence to subsist, the defendant (tortfeasor) must prove the following elements: i] That plaintiff did not take the precautions that a reasonable person would have taken for his own protection, namely the standard of care applicable to the claimant's act; ii]That the damage was reasonably foreseeable and that the plaintiff's act contributed to such damage. A brief study shows the historical development of contributory negligence in common law as well as civil law jurisdiction, as well as the generally unacceptable situation prior to the reform of this defence. The first chapter takes a comparative view of contributory negligence with reference being made to England, Germany, France, Italy and Austria. The choice of these countries was made on the basis that English doctrine is used extensively in Maltese jurisprudence, French civil law is the legislative source of fault and Austria is the country from which the Maltese legislator took the section related to contributory negligence and transposed it into the Maltese Civil Code , although not ad verbatim. The author chose to analyse the German approach since this is probably the best structured law among its European counterparts and Italian doctrine is another source prevalent in Maltese civil law. The thesis shows similarities and differences between these countries, with fault and causation being the most apparently recurring similarities. In all countries compared, contributory negligence is recognised as a defence which minimises the tortuous liability of the defendant. In the second Chapter Maltese Contributory Negligence was analyzed and the two main conditions from case law were found to be mainly negligence and causation but on closer analysis the dissertation finds that this is not totally harmonized. As regards to sources it is evident that the courts make the majority of references to English Doctrine. Chapter three analyses the key players in the harmonisation process as well as the various methods of harmonization. Furthermore, this Chapter strives to identify and discuss the various difficulties encountered in establishing a common statute on Contributory Negligence at a European level. The final Chapter of the thesis makes some observations on the perceived inadequacies of the European principles in comparison with Maltese legislation, and proposes certain reforms.