Defences Flashcards
Contributory Negligence Voluntary Assumption of Risk
Voluntary Assumption of Risk
Statutory Elements
- Reasonable person in P’s position would know of the risk (Doubleday v Kelly)
- (knows) General type of risk
- Voluntarily assumed the risk
- P to prove on the balance of probabilities that s/he didn’t know of the risk (s 5G(1)).
Voluntary Assumption of Risk
Common Law Elements
- Knew of risk (subjective test)
- Full appreciation of the particular risk (subjective test)
- Voluntary assumption
- D to prove on balance of probabilities
Doubleday v Kelly [2005] NSWCA 151
Standard of a reasonable child of the same age
What P did was not unreasonable for a 7 year old child
Caterson v Commissioner for Railways (1973) 128 CLR 99
P was injured when he jumped off a train as it was leaving a platform. No warning was given that the train was about to depart. Next stop was 80 miles away and his son was on the platform.
‘agony of the moment’ or an emergency situation = court will adjust standard of care for the purposes of contributory negligence. Under pressure in a situation of fear and stress, the standard of care P owes themselves is lower than it otherwise might be.
Pennington v Norris (1956) CLR 10
HCA defined “just and equitable” as a comparison of culpability. Culpability did not mean moral blameworthiness in this context, but “degree of departure from the standard of care of a reasonable man”.
Podrebersek v Australian Iron and Steel (1985) ALJR 492
The HCA said the test for contributory negligence requires court to consider
(1) the relative departure of P and D from the standard required of the reasonable person, and
(2) the relative importance of P and D’s acts (‘causal potency’) in the gravity of the risk created by P or D’s acts.
Need to weigh up whose negligence was more significant in contributing to the damage caused.
Note also that the HCA was influenced by P taking too long to resolve delays in pursuing the appeal (over ten years).
Found P was 90% contributory negligent
Reeves v Commissioner of Police [2000] 1 AC 360
“There is a fundamental principle of human autonomy… that person has a right to choose his own fate… A corollary of this principle is… that a person may not complain of the consequences of his own choices.” Lord Hobhouse
Carey v Lake Macquarie City Council [2007] Aust Torts Reports 81-874; [2007] NSWCA 4
P = cyclist who was injured when he struck a bollard located on the centre of a path for which D was responsible.
McClellan CJ at CL: “a genuine belief that the risk would not materialise will negative the defence, but a positive belief that the risk would materialise is not required to make the defence out.” at [84].
“There must also be some conscious advertence to the possibility that the known risk might eventuate, and a decision to proceed with the conduct regardless.” at [107].
It is not voluntary if the “alternatives to accepting the risk are onerous or repugnant…” at [79].
Fallas v Mourlas (2006) 65 NSWLR 418
A “significant risk” is one that lies between a trivial risk and one that is likely to materialise.
The magnitude of the consequent harm is also relevant.
Rootes v Shelton (1967) 116 CLR 383
P = waterskiing and crashed into D’s boat. D argued VAR.
Issue: whether participants in sport must accept all risks inherent in the activity.
Participants in sport do not accept all risks inherent in the activity.
Laoulach v Ibrahim [2011] NSWCA 402
Referred to judgement in Jaber –> (Tobias AJA)
[80] At [35] of my reasons in Jaber I said this:
Whether or not a risk is “obvious” may well depend upon the extent to which the probability of its occurrence is or is not readily apparent to a reasonable person in the position of the plaintiff.
