U2 AOS1 - Defences to Negligence

Question 1

Lack of elements - duty of care

Answer 1

• No duty of care was owed
  
  • The defendant may claim there was no neighbour relationship because it was not reasonable to foresee that their actions could cause loss or damage to the plaintiff

Question 2

Lack of elements - breach

Answer 2

• The duty of care was not breached
  
  • A duty of care is not breached if the defendant acted as any reasonable person would have, and the injury was the result of an accident and could not be stopped.

Question 3

Lack of elements - loss

Answer 3

• No loss or harm occurred or if so, it was caused by other means
  
  • The defendant claims that although they may have breached their duty of care, the plaintiff suffered no harm, or the harm/injury was not the result of the breach

Question 4

Voluntary assumptions of risk.

Answer 4

• Volenti non fit injuria (to a willing person, injury is not done)
• This is a complete defence (if proven the defendant is not found liable)
• Defendant must prove:
  
  • Plaintiff was aware of an obvious risk
  • Plaintiff voluntarily chose to take the risk. Consent can be expressed, (for example, signing a waiver) or implied, (for example, willingly engaging in the activity)

Question 5

Examples of VAoR

Answer 5

• Knowingly accepting a rod with a drunk driver is accepting obvious risk of being injured in a car accident
• Sports people accept the risk of suffering common injuries that occur within their sport. For example, being legally tackled in football

Question 6

Exception to VAoR - medical profession

Answer 6

• Voluntary assumption of risk does not apply to the provision of health services. Health providers have a legal responsibility to warn people of any inherent risk associated with the procedure

Question 7

Contributory negligence

Answer 7

• Contributory negligence is not a complete defence. If proven, the amount of damages owed to the plaintiff will be reduced. If the plaintiff contributed significantly to their injury, the damages awarded may be negligible
• The defendant must prove that the plaintiff contributed to the harmful situation or is partly to blame for the harm done
• The court will examine the conduct of the plaintiff and assess how they might have contributed to their own injury, loss or damage (did the plaintiffs take reasonable care to avoid foreseeable harm?)
• The plaintiff was intoxicated when the incident occurred. There is a presumption of contributory negligence. If the plaintiff cannot rebut this assumption, their damages will be reduced automatically