This is patently inequitable, and under such circumstances the courts make serious efforts to discount the presence of contributory negligence (Murdoch, 2002). These judicial gymnastics, at times seem to defy the import of the evidence presented in the case.
These observations are clearly brought out in the case of Astley v Austrust Ltd. In this case, a trustee company sued a firm of solicitors for breach of contract and for providing negligent advice. The trial court judge discerned contributory negligence on the part of the plaintiff, and ruled that the responsibility for the loss was to be shared equally by the plaintiff and defendant (Astley v Austrust Ltd, 1999).
This decision was set aside by the Full Court in South Australia, which held that there was no contributory negligence. This court went on to rule that contributory negligence could not arise, in instances where the loss to the plaintiff was of the very nature that it was the duty of the defendant to prevent, by providing appropriate professional advice (Astley v Austrust Ltd, 1999).
However, in the High Court, it was held that apportionment legislation was inapplicable to contributory negligence of the plaintiff; if the defendant had not protected the plaintiff from such damage. Thus, contributory negligence can be attributed to a plaintiff, in instances where the principal duty of the defendant is to prevent such damage to the plaintiff (Astley v Austrust Ltd, 1999).
In addition to being able to predict damage and the closeness of the parties; it should be equitable and reasonable to enforce a duty of care. There have been several cases, where the courts have ruled that the duty of care, inherent in psychiatric injury that was caused on account of negligence, was present due to policy considerations (Victim of self – inflicted injuries owes no duty of care, 2000).
In Caparo Industries plc v Dickman, the