Defences to Negligence

Question 1

Possible defences

Answer 1

• Volenti non fit injuria
• Contributory negligence
• Specific provisions of the Civil Liability Act 2003
• Joint illegal activity

Question 2

Other possibilities…

Answer 2

• Parties are in a contractual relationship where there is an exclusion clause.
• Time limitations have been exceeded.

Question 3

Contributory negligence

Answer 3

A plaintiff is guilty of contributory negligence when they expose themselves to a risk of injury that might have reasonably been foreseen and avoided and suffers an injury within the class or risk to which the plaintiff is exposed. Josslyn v Berryman.

Defendant would have to prove
1. That that the plaintiff was negligent.
- Plaintiff exhibited a want of care for their own interests
- Plaintiff’s conduct is judged the same way as the defendant, whether they breached their duty of care: CLA s 23(1)
- Standard of care?
○ ‘the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person’: CLA s 23(2)(a).
○ Characteristics of the plaintiff may alter the standard. E.g., A child. Verryt v Schoupp; McHale v Watson.
- Breach of standard?
○ Foreseeable? Not insignificant? Reasonable person take the precautions (probability, likely seriousness, reasonable alternatives, social utility, other things…)? CLA s 9.

2. Contributed to the foreseeable injury
- Loss would have been avoided or reduced had the plaintiff taken reasonable care: Gent-Diver v Neville; Monie v Cth. 
- Loss suffered by the plaintiff is the foreseeable consequence of their failure to exercise reasonable care. 
	○ Monie v Cth (appellant hired farm hand through CES, no disclosure of prison history, shot the appellant).  Consequences of contributory negligence: 
- Apportionment of damages 
- Law Reform Act 1995 s 10. 
	○ The damages recoverable for the wrong… are to be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility of damage.  "Just and equitable" 
- Compare defendant and plaintiff's conduct to access culpability. 
- Pennington v Norris 
	○ Plaintiff failed to keep look out when crossing road vs defendant driving at excessive speed, in the wet and mist at the time when people leaving hotels. 
		§ Court reduced contributory negligence assessment from 50% to 20% on appeal. 
		§ Negligence of defendant in high degree more culpable than plaintiff.  100% contributory negligence
- CLA s 24 may make a finding of 100% if just and equitable. 
	○ Claim is then defeated.

Question 4

CLA presumptions of contributory negligence

Answer 4

Plaintiff Intoxicated
- Contributory negligence presumed if plaintiff intoxicated at time of breach and defendant alleges contributory negligence.
○ S 47(1) and (2).
- Presumption may be rebutted
○ Intoxication did not contribute to breach or was not self-induced (spiking): s 47(3)
- Reduction in damages of a minimum of 25%: s 47(4).
○ If a plaintiff was a driver with BAC of 0.15 or more at least 50^ reduction: s 47(5).

Defendant Intoxicated: CLA s 48
- CN presumed if plaintiff is at least 16 years at time of breach, relied on care and skills of intoxicated defendant and plaintiff was aware or ought to have been aware of intoxication and defendant alleges CN.
○ CLA s 48(1) and (2)
- Presumption may be rebutted
○ Intoxication did not contribute to breach or plaintiff could not reasonably be relying upon defendant’s care and skill: s 48(3)
○ Reduction in damages of minimum 25%: 248(4)

Intoxicated driver: CLA s 49
- If s 48 applies and…
○ Breach arose from motor vehicle accident
○ Plaintiff was passenger and defendant was driver
○ BAC of 0.15 or more or incapable of exercising effective control of the motor vehicle.

Minimum reduction of 50%: s 49(2).

Question 5

Volenti non fit injuria

Answer 5

• Complete defence
  
  • Plaintiff consented to the risk of injury
    ○ i.e., voluntarily assumed the risk of injury.
    Defendant must prove…
    1. Plaintiff had full knowledge of the risk
    2. P freely and voluntarily agreed to accept the risk (physical and legal)
  1. Knowledge of the Risk
     - Subjective test - difficult to prove
     ○ If the risk is an obvious risk, the plaintiff is taken to have been aware of the risk: CLA s 14(1)
     § ‘obvious risk’- a risk that is obvious to a reasonable person: CLA s 13.
     - Presumption may be rebutted
     ○ Plaintiff is taken to have been aware of the risk unless the plaintiff proves, on the balance of probabilities, that he or she was not aware of the risk: CLA s 14(1)
     § But note CLA s 14(2): ‘even if the person is not aware of the precise nature, extent or manner of occurrence of the risk’.
  2. Acceptance of Risk
     - Must be voluntary and there must be acceptance of:
     ○ Physical risk- i.e. accept that there is a rick of injury.
     ○ Legal risk -i.e. accept the risk that no reasonable care may be taken: Rootes v Shelton
     § Equivalent to concluding that the defendant owed that plaintiff no duty of care: Imbree v McNeilly.

Question 6

Intoxicated defendant in volenti

Answer 6

• If the D was intoxicated at the time, can it be argued that the P was volens?
  ○ CLA s 48(5) prohibits a defendant raising volanti is they were intoxicated at the time of the breach and s 48(1) is satisfied- CN is presumed instead of Volenti.

Question 7

Volenti and recreational activities

Answer 7

• Under common law, participation in sport does not equal acceptance of any risk, but may be acceptance of inherent/obvious risks.
  ○ Rootes v Shelton
  
  • No liability if loss results rom the materialisation of an obvious risk in a dangerous recreational activity (DRA): CLA s 19
    ○ Activity engaged in for enjoyment, relaxation or leisure that involves a significant degree of risk of physical harm to a person’: CLA s 18
    § Fallas v Mouras

Question 8

Doctors duty to warn

Answer 8

A doctor does not breach a duty owed to warn of risk… that will involve a risk of personal injury to the patient, unless the doctor at that time fails to give or arrange to be given to the patient …..

(a) information that a reasonable person in the patient’s position would require to make an informed decision;
(b) information that the doctor knows or ought reasonably to know the patient wants to be given to make an informed decision.

Question 9

Professional Standards

Answer 9

A professional does not beach a duty arising from the provision of a professional service if it is established that the professional acted in a way that (at the time the service was provided) was widely accepted by peer professional opinion by a significant number of respected practitioners in the field as competent professional practice.
○ Subsection (2): standard not accepted if irrational or contrary to written law.
○ Subsection (3): can be differing peer professional opinions widely accepted
○ Subsection (4): peer opinion does not have to be universally accepted

Question 10

Illegality of plaintiff

Answer 10

No liability if the breach occurred when the plaintiff was engaged in an indictable offence and that conduct materially contributed to the risk of harm.
- CLA s 45(1)

Question 11

Joint illegal activity

Answer 11

Complete defence
- Inappropriate to set a standard of care and therefore no duty owed …or…public policy negates a duty being owed

Defendant prove

1. Plaintiff and defendant jointly engaged in illegal activity at time of breach. 
2. Connection between the breach and the illegal activity. 

Joint illegal activity:
- Engaged in illegal activity together at time of alleged breach
- Miller v Miller
○ Often need to refer to legislation that creates the offence to determine.
Connection:
Relationship between the illegal activity and the negligence
- Miller v Miller