Defences to Negligence Flashcards
What are the defences to negligence? are they partial or absolute?
Consent - complete
Contributory negligence - partial defence
Illegality - complete defence
When does the defence of consent arise?
1) Where C has consented to the specific harm
2) If D has taken reasonable steps to make visitors aware of the harm they may not be liable
What must be proven by D to show that C consented to the harm?
C knew the nature and extent of the harm and they voluntarily agreed to it
this is a subjective test, it is based on what C knew at the time, not a reasonable person
Morris v Murray
C was injured in a plane crash flew while intoxicated by D. Defence was allowed because although he was intoxicated, he was not too drunk to not appreciate the nature and extent of the risks getting in a plane with while the pilot is drunk
Condon v Basi
people consent to sport within the rules of the game
How does the illegality defence work?
C’s claim will fail if D can prove C sustained their injuries while acting illegally (this is for public policy reason)
Pitts v Hunt
D drunk drove a car and died. C sued in negligence, the defence of illegality surpassed his claim in negligence because C knew he was uninsured, underage, over the limit and encouraged him to drive recklessly
s1(1) Law Reform (contributory negligence) act 1945
The court can reduce C’s damages in accordance with their fault to the negligence
How does contributory negligence work?
D will raise this defence when C has failed to take reasonable steps for their own safety and this failure has contributed to the injury
What is the test for contributory negligence?
1) Did C fail to exercise reasonable care for their own safety?
2) Did the failure contribute to C’s damage? AND
3) By what extent should damages be reduced?
What is meant by ‘Did C fail to exercise reasonable care for their own safety?’
Objective standard – ‘what would a reasonable person have done to avoid being hurt?’
Jones v Livox Quarries Ltd
C was riding on the back of a work vehicle he should not have been and was seriously injured. D was negligent but defence of contributory negligence was successful and damages were reduced by 20%.
Jackson v Murray
a 13 year old suffered severe, life changing injuries after being hit by a bus. The driver was liable for negligence, however the injuries were largely the result of the child not looking before she crossed the road. The damages were reduced to 90% and 70% on appeal and then 50% by the Supreme Court.
Compared her to a reasonable 13 year old girl and they would not have walked out behind a bus
