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In the beginning, contributory
negligence acted as a complete defence at common law. However, under
the Law Reform (Contributory Negligence) Act 1945, contributory
negligence operates as a partial defence whereby the courts can apportion
loss between the parties. It essentially means that the plaintiff has failed to
use reasonable care for the safety of himself or his property, which then gives
rise to his damage and injury. A successful defence of contributory negligence
absolves the liability of defendant. It serves to reduce the amount of
compensation payable to the plaintiff in proportion to his own contribution.

 It is for the defendant to plead the
contributory negligence of the plaintiff, failure to do so will be fatal to the
defendant’s case even though the plaintiff has in fact been contributorily
negligent. If the plaintiff succeeds in proving the negligence of the
defendant, he will be entitled to the damages based on 100% liability despite
the fact that he may have contributed to his injury. The elements of
contributory negligence are the plaintiff is not required to have a duty of
care to the defendant. The duty of care is upon himself to act reasonably so as
to avoid damage to himself. Next, the plaintiff has failed to take reasonable
care of himself by behaving unreasonably and the act or omission must be the
cause of his injury, which must be of a type of reasonably foreseeable from his
act or omission.

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At common law a child was regarded
as of ‘immature intelligence and discretion’ and therefore required protection
in respect of the formation of contracts, but not to any great extent in the
field of negligence where much the same standard of care was expected of a
child as of an adult. In considering whether a child plaintiff has been
contributorily negligent, the main consideration is the age of the child. The
question is whether normal children of the plaintiff’s age would have acted as
the plaintiff has done. In Gough v Thorne, Lord Denning once said that a very
young child cannot be guilty of contributorily negligence. An older child
maybe; but it depends on the circumstances. A judge should only find a child
guilty of contributory negligence if he or she is of such an age as reasonably
to be expected to take precautions for his or her own safety. He or she is not
to be found guilty unless he or she is blameworthy.

In the case of Gough v Thorne1, the court applied
objective test and remains the clearest and most relied upon formulation of the
principle in this jurisdiction. Salmon L.J in this case summed up the objective
approach and stated that: “the question as to whether the Plaintiff can be said
to have been guilty of contributory negligence depends on whether any ordinary
child of thirteen and a half can be expected to have done any more than this
child did. I say “any ordinary child”. I do not mean a paragon of prudence; nor
do I mean a scatterbrained child; but the ordinary girl of thirteen and a half.”2  However, this approach leaves uncertainty
because different judges have different ideas about the capacity of children at
different ages of development.

            Due
to the uncertainty, some courts adopted a subjective approach to determining the
individual characteristics of a child such as their intelligence, upbringing,
experience and maturity can be taken into account in the context of the
particular duty of care concerned. The court considers a child’s ability to
apprehend the existence of danger, take precautions against it and exercise any
degree of care for his own safety.

1 1966
3 All ER 398

2 Christopher
Sharp QC, St John’s Chambers?The
Blame Game Children and Contributory Negligence.
accessed 27 September 2015 

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