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Hence a balance is needed. It is using this criterion of a right principle-policy balance that my evaluation of the judgements in Marrickville Municipal Council v Moustafa [2001] NSWCA 372 is based.
Contributory Negligence
At first instance it was held that the plaintiff's contributory negligence was forty percent, to which I disagree. In comparing the degree of culpability of the plaintiff and defendant in relation to relative fault and causal contribution, Hosking DCJ appears to have implicitly applied a lower standard of care to contributory negligence than to negligence. For even after the plaintiff divulged that he had ?waited until it [the detonator] exploded,' Hosking DCJ was reluctant to rule definitively on the plaintiff's intention...
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