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LAWS1012 > 13. Defences to Negligence > Flashcards

13. Defences to Negligence Flashcards

1
Q

Division 4 of CLA

A

Assumption of risk

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2
Q

Division 5

A

Recreational activities

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3
Q

s 5J (Division 5) Recreational activities

A

application of Division: only in respect of liability in N from a recreational activity engaged in by the P.

—-Division 5 doesn’t limit operation of division 4 in respect of recreational activity

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4
Q

s5K (Division 5) Recreational activities

A

Definitions:
——Dangerous recreational activity: involves a significant risk of physical harm
—–Obvious (same as D4)
——Recreational activity includes:
any sport, leisure activities & at a place where ppl ordinarily engage in sport/leisure

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5
Q

Dangerous recreational activity:

A

s5K

involves a significant risk of physical harm

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6
Q

s5L

A

no liability for harm suffered from obvious risks of dangerous recreational activities (applies regardless of if P knew risk)

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7
Q

s5N

A

Waiver of contractual DOC for recreational activities

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8
Q

volenti non fit injuria

A

If the p has actually assumed the actual risk which causes the damage → it’s a complete defence. While voluntary assumption of risk is in all circumstances a complete defence to an action, consent must be freely given & based on a full understanding of the risk.

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9
Q

Rootes v Shelton.

A

The law of negligence applies as between the participants in a sport or game. However, participants in a sport or game voluntarily assume such risk of injury as is inherent in the activity.

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10
Q

Does participation in a risky activity relive another participant of a DOC at CL?

A

NO. (Rootes v Shelton).
Just because activity (ie water-skiing) has inherent dangers, the person may not have consented to all risks [not all DOC is absolved]
—->(such as that another participant may not be paying attention /won’t be on look out)
Person rarely assumes that another will be N in an unpredicted way.

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11
Q

If it it’s claimed that a participant in a sport/pasttime has voluntarily assumed a risk not inherent in that sport/pasttime to exclude a relevant DOC, it rests on

A

the party who makes the claim to est the case in accordance w. recognised principles

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12
Q

To est CN:

A

D must plead & prove on balance of probabilities. (see Caterson v Commissioner for Railways)

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13
Q

What does Caterson v Comissioner for Railways show?

A

That the P’s conduct may not be treated as CN if he was acting spontaneously in ‘the agony of the moment’ created by the D’s negligence.

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14
Q

CLA s5R Division 8 (CN)

A

Standard of CN.
Must apply principles of negligence to determine whether person suffering the harm has been CN in failing to take precautions against the risk of that harm.

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15
Q

How is CN determined under the CLA?

A

s5R (Division 8) (2): SOC

a) required of injured person is that of a reasonable person in their position
b) the matter is determined on basis of what person knew/ought to have known

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16
Q

How is CN determined under the CLA?

A

s5R (Division 8) (2): SOC

a) required of injured person is that of a reasonable person in their position
b) the matter is determined on basis of what person knew/ought to have known

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17
Q

Part 6- Intoxication

A

s47-50

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18
Q

s47 (Part 6- Intoxication)

A

Part 6 Intoxication applies to civil liability for death, injury, property damage
(except civil liability excluded from operation of s3B)

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19
Q

s48

A

definition of intoxication (under influence of alcohol/drug)

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20
Q

s50

A

no recovery when person intoxicated

  1. if the person who suffered death/injury/damage was intoxicated at the time to extent that they could no longer exercise reasonable care & skill
  2. can only award damages if damage likely would have occurred even if not intoxicated
  3. If so, their intoxication is seen as CN (unless it actually had no contribution to harm caused)
  4. If presumed CN, court reduces by 25% or more.
  5. Doesn’t apply where intoxication wasn’t self-induced
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21
Q

s50

A

no recovery when person intoxicated
-if the person who suffered death/injury/damage was intoxicated at the time to extent that they could no longer exercise reasonable care & skill

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22
Q

McHale v Watson & Doulbleday v Kelly

A

Children are judged according to what can be expected of a child of the same age & experience, with respect to both their ability to foresee a risk & their judgement in responding to it.

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23
Q

McHale v Watson

A

Children are judged according to what can be expected of a child of the same age & experience, with respect to both their ability to foresee a risk & their judgement in responding to it.

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24
Q

What is the current legislation for apportionment legislation for CN?

A

CLA s 5S

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25
Q

CLA s5S

A

“In determining the extent of a reduction in damages by reason of “In determining the extent of a reduction in damages by reason of CN a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated.”

26
Q

After apply s5S of CLA (determining the extent of damages) what must then be applied?

A

s5R - the Standard of CN

27
Q

s5R

A
  • the Standard of CN
28
Q

s5R- the Standard of CN

A

Must apply principles of N to determine whether person suffering the harm has been CN in failing to take precautions against the risk of that harm.
the D’s N will generally be regarded as more culpable than that of the P as,
(by definition it involves a failure to take care towards others whereas a plaintiff’s negligence involves only a failure to take care of him or herself. )

29
Q

what case highlights that do determine the extent of CN, you must arrive at a “just & equitable” apportionment as BTW P & D of the “responsibility” for the damage, involving a comparison of culpability as to the degree of departure from the SOC.

A

Pennington v Norris

30
Q

Pennington v Norris

A

Leading on from CLA 2002, this authority too.

highlights that do determine the extent of CN, you must arrive at a “just & equitable” apportionment as BTW P & D of the “responsibility” for the damage, involving a comparison of culpability as to the degree of departure from the SOC.

31
Q

can there apportionment for caes involving intentional torts?

A

NOOOO. apportionment for CN only applies when it would’ve been a complete defence at CL.

32
Q

Whilst CN only applies when it would’ve been a complete defence at CL, what case highlights that for the unintended consequences of an intentional tort of false imprisonment CN may reduce damages?

A

NSW v Riley

33
Q

NSW v Riley

A

Whilst CN only applies when it would’ve been a complete defence at CL, what case highlights that for the unintended consequences of an intentional tort of false imprisonment CN may reduce damages.

34
Q

Venning v Chin

A

CN can lead to apportionment in claim of negligence trespass

35
Q

what CN in CRA?

A

Apply s5T of CLA - courts can reduce claimant relative’s claim due to deceased’s CN.

36
Q

CN for mental harm for someone who sees the incidnet?

A

Apply s 30 (3) of CLA: damages reduced for CN of victim

37
Q

CN of others?

A

Oliver v Birmingham

Waverley Council v Ferreira

38
Q

Oliver v Birmingham

A

Infants have the same right to recover, regardless of the fact that someone has contributed to the injury.

39
Q

Waverley Council v Ferreira

A

highlights how to apply s5R.
Applied s5R of CLA- a 12 yr old boy wouldn’t appreciate risk of climbing onto roof & stepping onto skylight, so no CN. Father could sue council under s 30 for mental harm

40
Q

what is the main case that hihlights the P’s unlawful conduct?

A

Henwood v The Municipal Tramways Trust (South Australia) (1938)

41
Q

Henwood v The Municipal Tramways Trust (South Australia) (1938)

A

There is no general principle that a person injured at a time when he or she is breaking some provision of the law is, on that account, precluded from recovering damages in negligence.
The unlawful act of the deceased did not absolve the Trust from civil liability for its negligence.

42
Q

Gala v Preston compared with Henwood

A

Compared with Henwood v The municipal Tramways Trust, here if a person committed a criminal offence, civil remedy will not be available .

43
Q

Gala v Preston compared with Miller v Miller

A

In Gala, the joint illegal activity is the only relevant relationship between the parties and they can have no reasonable basis for expecting that the care will be driven according to ordinary standards of competence and care. Accordingly the injured passenger is not entitled to recover damages for his injury.

But in Miller v Miller, the P withdrew from teh enterprise so was still owed a DOC

44
Q

self defence & recovery by criminals

A

Part 7, ss 51, 54, 54A

45
Q

s 51 (self-defence)

A

states that part 7 (self defence & recovery by criminals) applies to CL for death, injury/property damage

46
Q

s52

A

no civil liability for acts in self-defence.

47
Q

s52(1)

A

basically, a person isn’t liable if they respond to unlawful conduct, or conduct that would’ve been unlawful if perpetrator hadn’t been suffering from a mental illness.

48
Q

s52(2)

A

to have no liability, person must carry out defence if they believe it necessary to defend themselves or another, protect property, prevent deprivation of liberty of themselves or another, prevent criminal trespass

49
Q

When doesn’t s52(selfdefence) apply?

A

if it involves the intentional/reckless infliction of death to protect property/prevent criminal trespass.

50
Q

s53

A

Damages limitations apply even if self-defence not reasonable response

51
Q

S53: Damages limitations apply even if self-defence not reasonable response
(1)

A

If s 52 applies to prevent liability, yet conduct wasn’t a reasonable response in the circumstances as they perceived them, the court won’t award damages (unless exceptional circumstances or not awarding damages would be harsh & unjust)

52
Q

s53(2)

A

limitations of awarding damages (apply Part 2 limitations, with exception of division 3 part and despite s 3B (1) (a).
No damages awarded for non economic loss

53
Q

can damages for non-economic loss be awarded for self-defence?

A

no (s53(2)

54
Q

what is s 3b (1) (a) again?

A

states what CL is excluded from the Act. CLA Provisions DON”T APPLY regarding CL for intentional act done by person w intent to injure/kill or that’s sexual assault.

55
Q

what are the exceptions within s3b (1)(a)?

A 
s 15B & s18(1) regarding application to damages for any loss of kind referred to in s 18(1)(c)
Part 7 (self-defence & recovery by criminals for intent to cause injury/death)
Part 2A (special provisions for offenders in custody)
56
Q

S54

A

Criminals not awarded damages

57
Q

can s 52 & 53 apply to limit recovery of damages even though the D’s conduct was an offence?

A

YES

58
Q

s54(2)

A

This section doesn’t apply for award of damages against D if their conduct caused the death, injury or their conduct constitutes an offence.

59
Q

what’s a serious offence?

A

punishable by 6 months/more imprisonment

60
Q

s54 A

A

damages limitations if loss results from serious offence committed by mentally ill person.

61
Q

What did Russel v Edwards (2006) do?

A

elevated CN of self-induced intoxication as expressed by s50 (CLA) to a COMPLETE DEFENCE, (returning to rule principally est in Butterfield v Forrester which had then been abrogated by LR(MP)ACT 1965)

62
Q

FOr Good Samaritans, community work and volunteers what do you apply?

A

ss55-58 for good samaritans

ss59-66 for volunteers.

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