Legislation

Question 1

Law Reform (Miscellaneous Provisions) Act 1965 (NSW) 
s 9 

Contributory Negligence

Answer 1

Apportionment of liability in cases of contributory negligence (condensed)

(1) If the claimant suffers damage as the result of contributory negligence, and partly of the wrong of any other person:
(a) claim of damages is not defeated, and
(b) the damages are to be reduced proportionate to the claimants responsibility for the damage.

Question 2

Civil Liability Act 2002 (NSW)
s 5R

Contributory Negligence

Answer 2

5R Standard of contributory negligence

(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.

(2) For that purpose:
(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and
(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.

Question 3

Civil Liability Act 2002 (NSW)
s 5S

Contributory Negligence

Answer 3

5S Contributory negligence can defeat claim

In determining the extent of a reduction in damages by reason of contributory negligence, 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.

Question 4

Civil Liability Act 2002 (NSW)
s 48

Intoxication

Answer 4

48 Definition of “intoxication”

A reference in this Part to a person being intoxicated is a reference to a person being under the influence of alcohol or a drug (whether or not taken for a medicinal purpose and whether or not lawfully taken).

Question 5

Civil Liability Act 2002 (NSW)
s 49

Intoxication

Answer 5

49 Effect of intoxication on duty and standard of care

(1) … The effect intoxication has on the duty and standard of care that the intoxicated person is owed.

(a) in determining whether a DoC arises, it doesn’t matter that a person who is intoxicated may be exposed to increased risk because their ability to reason is impaired.
(b) a person is not owed a duty of care merely because the person is intoxicated,
(c) the fact that a person is or may be intoxicated does not… affect the standard of care owed to the person.

Question 6

Civil Liability Act 2002 (NSW)
s 50

Intoxication

Answer 6

50 No recovery where person intoxicated (paraphrased)

(2) A court can’t award damages to someone who was intoxicated when the damage occurred, unless they are satisfied that the damage was likely to occur even if the person had not been intoxicated.
(3) If the Court is satisfied that the damage would occur without the intoxication, it is presumed that the claimant was contributorily negligent unless the court is satisfied that the intoxication was not in any way connected to the damage.
(4) Where there is a presumption of contributory negligence, the normal amount of damages will be reduced by at least 25%.
(5) This section does not apply in a case where the court is satisfied that the intoxication was not self-induced.

Question 7

Civil Liability Act 2002 (NSW)
s 5F

Volens non fit injuria – knowledge element

Answer 7

5F Meaning of “obvious risk”

(1) … an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.
(2) Obvious risks include risks that are patent or a matter of common knowledge.
(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.
(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.

Question 8

Civil Liability Act 2002 (NSW)
s 5G

Volens non fit injuria – knowledge element

Answer 8

5G Injured persons presumed to be aware of obvious risks

(1) In proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk.
(2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk.

Question 9

Civil Liability Act 2002 (NSW)
s 5H

Volens non fit injuria – knowledge element

Answer 9

5H No proactive duty to warn of obvious risk

(1) D does not owe a duty of care to P to warn of an obvious risk to the plaintiff.

(2) This section does not apply if:
(a) P has requested advice or information about the risk from D, or
(b) D is required by a written law to warn P of the risk, or
(c) D is a professional and the risk is a risk of the death of or personal injury to P from the provision of a professional service by D.

(3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection.

Question 10

Civil Liability Act 2002 (NSW)
s 5I

Volens non fit injuria

Answer 10

5I No liability for materialisation of inherent risk

(1) A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk.
(2) An inherent risk is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill.
(3) This section does not operate to exclude liability in connection with a duty to warn of a risk.

Question 11

Civil Liability Act 2002 (NSW)
Div 5 Recreational Activity
s 5J

Answer 11

5J Application of Division

(1) This Division applies only in respect of liability in negligence for harm to P resulting from a recreational activity engaged in by P.
(2) This Division does not limit the operation of Division 4 in respect of a recreational activity.`

Question 12

Civil Liability Act 2002 (NSW)
Div 5 Recreational Activity
s 5K

Answer 12

5K Definitions

“dangerous recreational activity” means a recreational activity that involves a significant risk of physical harm.

“obvious risk” = same meaning as in Division 4.

“recreational activity” includes:

(a) any sport, and
(b) any pursuit or activity engaged in for enjoyment, relaxation or leisure, and
(c) any pursuit or activity engaged in at a place (such as a beach, park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure.

Question 13

Civil Liability Act 2002 (NSW)
Div 5 Recreational Activity
s 5L

Answer 13

5L No liability for harm suffered from obvious risks of dangerous recreational activities

(1) D is not liable in negligence for harm suffered by P as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by P.
(2) This section applies whether or not the plaintiff was aware of the risk.

Question 14

Civil Liability Act 2002 (NSW)
Div 5 Recreational Activity
s 5M

Answer 14

5M No duty of care for recreational activity where risk warning
(1) D does not owe a DoC to another person who engages in a recreational activity (the plaintiff) to take care in respect of a risk of the activity if the risk was the subject of a risk warning to the plaintiff.

(long provision, most things omitted)

Question 15

Civil Liability Act 2002 (NSW)

s5 Harm

Answer 15

“harm” means harm of any kind, including the following:

(a) personal injury or death,
(b) damage to property,
(c) economic loss.

Question 16

CLA s5 Negligence

Answer 16

negligence means failure to exercise reasonable care and skill.

Question 17

CLA s5 Personal injury

Answer 17

“personal injury” includes:

(a) pre-natal injury, and
(b) impairment of a person’s physical or mental condition, and
(c) disease.

Question 18

s5B

Answer 18

Breach of Duty

(1)
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2) calculus of negligence
(a) probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm.

Question 19

s 5O (Breach)

Answer 19

Standard of care for professionals
(1) (Bolam principle) … widely accepted in Australia by peer professional opinion as competent professional practice.

(2) However, peer professional opinion cannot be relied on … if the court considers that the opinion is irrational.
(3) The fact that there are differing peer professional opinions widely accepted in Australia … doesn’t prevent any one or more (or all) of those opinions being relied on for the purposes of this section.
(4) Peer professional opinion does not have to be universally accepted to be considered widely accepted.

Question 20

s 5P (Breach)

Answer 20

5P Division does not apply to duty to warn of risk

This Division (s5O & s5P) does not apply to liability arising in connection with the giving of (or the failure to give) a warning, advice or other information in respect of the risk of death of or injury to a client –> Rogers v Whitaker

Question 21

s 5D (Causation)

Answer 21

s 5D(1)(a) “necessary condition” –> factual causation (“but for” –> Strong v Woolworths)

s 5D(1)(b) scope of liability –> remoteness –> novus actus interveniens

(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(policy considerations)

Question 22

s 5E (Causation)

Answer 22

Onus of proof

Plaintiff has onus of proving causation