What is the correct place in a rational private legal system for the doctrine of contributory fault/negligence?
Essentially, it’s where a tort is committed, but because the harm was brought about partially by negligent conduct on the part of the plaintiff, the defendant can raise a complete or partial defence against the allegations of the plaintiff. It is not normally applicable where the defendant’s actions were intentional - only if they were negligent.
For example, a driver who negligently hits and injures a pedestrian at a cross-walk may raise this defence if the pedestrian was also negligent when he crossed the street - i.e. didn’t look to see whether there was oncoming traffic which wouldn’t stop for him.
Contributory negligence was, historically, a complete defence, meaning that the defendant could get off Scot-free if he could prove that the plaintiff was the least bit negligent in bringing about the occurrence of harm to himself. Nowadays, most jurisdictions treat it as a partial defence - also called “comparative negligence” - which merely allows the defendant to limit the damages claimed against him.
In some jurisdictions, the doctrine is not only applied in cases where the plaintiff contributed to the occurrence of the tort, but also where the plaintiff merely contributes to the extent of harm suffered as a result of the tort.
e.g. If the defendant is completely at fault for causing a motor car collision, he might be able to limit the damages an occupant of the other car can claim against him by demonstrating that the plaintiff was not wearing a seat belt, and that the plaintiff would not have suffered such extensive harm if he had been wearing one.
This doctrine cannot be applied to intentional torts for fairly obvious policy reasons… It would essentially allow the wrongdoer to escape or limit the sanction placed against him by arguing that his victim made it easier or more tempting for him to aggress against them. e.g, “I should not be held entirely responsible, because the car I stole was left unlocked”, or “I shouldn’t be held entirely responsible for raping that person, because they were dressed very provocatively”.
Furthermore, it was, in most jurisdictions, deemed to be against public policy to allow for contributory fault to be considered as a complete defence. “Comparative fault” is now preferred, in terms of which the defendant can limit the plaintiff’s damages claim, but this leaves an arbitrator in the rather unfortunate position of having to decide by how much the claim should be reduced, based on how much fault can be attributed to either party. It’s not something that can be objectively quantified.
Is this the correct approach? Is it appropriate for an arbitrator to enquire into the state of mind of both the plaintiff and defendant in order to apportion damages in a private law dispute? Is there any sort of legal duty attendant upon people to limit their own exposure to the tortious conduct of others?