in shallow water without checking the depth first. Pleading requirements In some jurisdictions, such as United States federal courts, contributory negligence must be pleaded in the defendant's answer to the complaint as an affirmative defense. But in some jurisdictions it may be applied by the court in a tort matter irrespective of whether it was pleaded as a defense. Availability The contributory negligence defense is not available to a tortfeasor whose conduct rises above the level of ordinary negligence to intentional or malicious wrongdoing. The classic version of contributory negligence, where a plaintiff who is even 0.01% negligent is barred from recovery, nowadays is referred to as "pure contributory negligence." Some states have adopted a "modified" or "mixed" version of contributory negligence where the plaintiff is only barred from recovery if he or she was more than a certain percentage at fault (typically, more than 50% at fault for his or her own injury). Australia In Australia, civil liability is governed by the Australian common law and the relevant statutes of the States and Territories. Most jurisdictions have enacted legislation that covers findings of non-absolute contributory negligence otherwise known as comparative negligence. In New South Wales, upon a finding by the court of contributory negligence, the award of damages is reduced by the same percentage as the plaintiff's own negligence. For example, if the plaintiff was 50% negligent in causing his or her own accident, but would otherwise be entitled to $100,000 in damages, a court will award only $50,000. A court is also permitted to find that 100% contributory negligence is applicable in which case the plaintiff is not entitled to any damages. However, a finding of 100% contributory negligence has never been upheld by an appeal court in Australia and the provision of the Civil Liability Act has received been identified by some judges and academics as a strange provision. Determining the extent of the contributory negligence is subjective and heavily dependent on the evidence available. Parties will often work to negotiate a mutually satisfactory percentage figure when engaging in alternative dispute resolution (such as mediation). If the matter does not settle, a percentage figure is ultimately assigned by the court at the hearing. In Australia, contributory negligence is available when the plaintiff's own negligence contributed to its own injuries. Also refer to Pennington v Norris for second test. United States In the United States, the pure contributory