The phrase: “But I’ve done this so many times before”, appears frequently in legal defences. “I smacked my child, and nothing bad happened.” “I always drive through that car park like that; it’s never been an issue.” “I’ve taken from the register a dozen times before, and no one noticed.” These aren’t defences. They’re red flags. The 101st time isn’t unlucky. It’s the result of cumulative risk, and in the eyes of the law, that matters.

Normalised deviance: From repetition to recklessness

The sociological concept of the normalisation of deviance, first introduced by Diane Vaughan (1996), explains how repeated low-level risk-taking becomes embedded in everyday behaviour. What once seemed inappropriate or dangerous is gradually reclassified as normal, not because the risk disappeared but because nothing bad happened.

This mindset appears in households, corporate offices, and high-stakes environments. The line between “a lapse” and “a pattern” blurs. Until someone gets hurt, and suddenly, that normalised deviance becomes criminal negligence. In legal settings, this is where repetition stops being comfort and starts being evidence.

Pattern recognition and the human brain

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Evolutionarily, humans associate repetition with safety. Our ancestors learnt that the berry that didn’t kill them yesterday likely wouldn’t today. That heuristic served us well in the wild; but in modern settings, especially legal and ethical domains, this instinct is misleading.

Psychologically, this is known as risk habituation. The more we engage in risky behaviour without consequence, the less risky it feels. But familiarity is not protection. The brain simply stops reacting with the same level of caution while the objective danger remains unchanged. Add to this cognitive dissonance where the map doesn’t match the ground, and we have the perfect storm. When someone feels discomfort about their actions but sees no consequence, they unconsciously resolve the tension by reinterpreting the action as acceptable. “I’ve done this before; it’s fine”… but “fine” is not a legal standard.

Legal framing: Pattern as proof

In criminal law, the notion of “I’ve done this so many times before” rarely works in the defendant’s favour. Under Australia’s Uniform Evidence Law (s98), tendency and coincidence evidence may be admissible to establish a pattern of behaviour, especially in cases of domestic violence, fraud, or child harm. In other words, the fact that you’ve done something multiple times before doesn’t erase guilt. It often proves intent, recklessness, or a failure to change behaviour in the face of foreseeable harm.

In negligence law, repetition works similarly. Courts routinely assess whether a reasonable person would have foreseen the risk, and the more often someone has been warned, formally or through close calls, the less plausible it is to claim ignorance. The legal test isn’t whether something felt dangerous, but whether a reasonable person in that position would have known better.

The myth of the 101st time

The 101st time often results in tragedy, but it’s almost never unforeseeable. A baby suffers internal injuries. A pedestrian is struck. A data breach occurs. The behaviour was familiar. The risk was known, but the consequence was delayed … until now. This “now moment” is often described in court as an accident, but “accident” implies surprise, and when someone repeatedly flirts with risk, the surprise is not that harm occurred; it is that it took this long.

When parents, employers, or professionals say, “I didn’t think anything bad would happen,” they reveal more than they intend. They reveal a history of ignoring warning signs, a cognitive bias towards safety through familiarity, and, often, a legally actionable pattern of recklessness.

Foreseeability and liability

In both civil and criminal jurisdictions, foreseeability is central. If harm is reasonably foreseeable and no action is taken, liability follows. Repetition amplifies foreseeability, not because the act changes, but because the actor’s awareness should. The 101st breach is rarely treated as a standalone event. It’s the inevitable endpoint of sustained risk, dismissed warnings, and cumulative decision-making, and increasingly, courts and juries are alert to this.

Conclusion: Habit is not a defence

The belief that “I’ve done this so many times before” implies safety is both human and profoundly flawed. While it may reduce anxiety, it does not reduce liability. In law, repetition does not exonerate; it implicates. Whether in family court, negligence claims, or criminal trials, a habit can become the prosecution’s strongest asset. It demonstrates knowledge. It demonstrates control. When paired with harm, it demonstrates responsibility. The challenge for legal professionals and for society is to recognise that safety is not measured by how many times you got away with it; it is measured by how long you ignored the risk.

Rebecca Ward is an MBA-qualified management consultant with a focus on mental health. She is the managing director of Barristers’ Health, which supports the legal profession through management consulting and psychotherapy. Barristers’ Health was founded in memory of her brother, Steven Ward, LLB.

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