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

Stickley, Amanda P. (2006) Contributory negligence under the TPA – Will the High Court be able to continue its protection of the careless consumer? Competition and Consumer Law Journal, 14(1), pp. 39-52.

PDF (64kB)

View at publisher


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.

Impact and interest:

Citation counts are sourced monthly from Scopus and Web of Science® citation databases.

These databases contain citations from different subsets of available publications and different time periods and thus the citation count from each is usually different. Some works are not in either database and no count is displayed. Scopus includes citations from articles published in 1996 onwards, and Web of Science® generally from 1980 onwards.

Citations counts from the Google Scholar™ indexing service can be viewed at the linked Google Scholar™ search.

Full-text downloads:

1,858 since deposited on 19 Oct 2007
49 in the past twelve months

Full-text downloads displays the total number of times this work’s files (e.g., a PDF) have been downloaded from QUT ePrints as well as the number of downloads in the previous 365 days. The count includes downloads for all files if a work has more than one.

ID Code: 10247
Item Type: Journal Article
Refereed: Yes
Keywords: Trade Practices Act, contributory negligence
ISSN: 1039-5598
Divisions: Current > QUT Faculties and Divisions > Faculty of Law
Current > Schools > School of Law
Copyright Owner: Copyright 2006 LexiNexis Butterworths
Copyright Statement: Reproduced in accordance with the copyright policy of the publisher.
Deposited On: 19 Oct 2007 00:00
Last Modified: 29 Feb 2012 13:23

Export: EndNote | Dublin Core | BibTeX

Repository Staff Only: item control page