Negligence: Defences

Question 1

CONTRIBUTORY NEGLIGENCE

Answer 1

• A plaintiff is guilty of contributory negligence when the plaintiff exposes himself or herself to a risk of injury which might reasonably have been foreseen and avoided and suffers injury within class of risk to which plaintiff was exposed. Joslyn v Berryman

Question 2

PLAINTIFF AT FAULT (OBJECTIVE TEST)

Answer 2

Objective Test Joslyn v Berryman
• Principals under breach also apply in deciding whether a person is guilty of contributory s23(1) CLA
• Standard of care is of a reasonable person s23(1)(a)
• Matter is to be decided on what person knew or was ought to have known s23(1)(b)
Characteristics of plaintiff taken into account
APPLY s9(2) of CLA
1. Burden of taking precautions
2. Social utility of activity
3. Fault or negligence contributed to damage

Question 3

PROBABILITY AND SERIOUSNESS OF HARM

Answer 3

Causation
Question of fact, application of common sense Fitzgerald v Penn
May be casually relevant in 3 ways
1. Plaintiff’s own carelessness is the cause of the accident Griffiths v Doolan
2. Plaintiff’s conduct increased risk of harm. Azzopardi v State Transport Authority
3. Plaintiff’s conduct aggravated the damage caused by negligence. Eagles v Orth

Question 4

DAMAGE WAS REASONABLY FORSEEABLE CONSEQUENCE

Answer 4

The damage suffered by the plaintiff was a reasonable foreseeable consequence: not too remote Gent-Diver v Neville

Question 5

INTOXICATION

Answer 5

• CLA Presumption of contributory negligence (onus on defendant)
• Intoxication: Person is under influence of alcohol or drug to the extent person’s capacity to exercise proper care and skill is impaired CLA Schedule 2
Where plaintiff is intoxicated s 47
Where plaintiff relies on intoxicated defendant s 48 s 49
• Just and Equitable: Appellate court will overturn apportionment finding if it is unreasonably disproportionate. Pennington v Norris

Question 6

VOLENTI NON FIT INJURA (No injury to the willing)

Answer 6

Also know as voluntary assumption of risk - If a plaintiff, with full knowledge, voluntarily accepts the risk of injury, plaintiff will be denied damages. Rootes v Shelton

Question 7

FULL AWARENESS OF RISK (Subjective test)

Answer 7

• Plaintiff must accept knowledge of risk, actual belief risk would eventuate and voluntarily accepted risk Canterbury City Council Case
Obvious Risks s 14 s 13 s 15 CLA
Obvious Risks of Dangerous Recreational Activity s 19 s 18
Materialisation of inherent risk s 16

Question 8

VOLUNTARY ACCEPTANCE OF RISK

Answer 8

• Plaintiff must have accepted voluntarily that there was a risk of injury (physical risk) and a risk that reasonable care would not be taken by the defendant (legal risk) Imperial Chemical industries v Shatwell
Inferred acceptance of risk: ICI v Shatwell

Question 9

ILLEGALITY

Answer 9

Joint Illegal Enterprise • If a plaintiff suffers damage as the result of the defendant’s act or omission, in the course of an illegal activity engaged in by the plaintiff jointly with the defendant, the plaintiff may be precluded from recovering damages. Smith v Jenkins
Plaintiff’s illegal activity s 45

Question 10

IMMUNITY

Answer 10

Rescue Case • If defendant has placed person or property in danger, volenti will not normally succeed against reasonable attempts of injured rescuer, even when aware of risk Haynes v Harwood
Volunteers s 38 s 39 s 40 s 41