LAWS11064 Torts B

Module 8 – Negligence: Defences and Remedies

Objectives

At the end of this module you should be able to:

• Understand the scope and definition of the defences of contributory negligence, illegality and voluntary assumption of risk at both common law and statute;

• Outline the central factors taken into consideration by the courts in dealing with these defences;

• Identify and apply appropriate defence(s) in particular fact scenarios; and• Understand how heads of damage are used to calculate an award of

damages and apply this understanding to relevant fact scenarios.

Negligence so far…

1. Duty of Care•Established Categories and Novel cases (Reas. Foreseeability; Salient Features; Relevant Policy Considerations?)

2. Breach of Duty – s 9 CLA•Standard of Care and Breach

3. Damage – s 11 CLA•Factual Causation – “necessary condition” (s. 11(1)(a)) AND Scope of Liability – normative considerations; “RF of kind of harm” (s.11(1)(b))

Special cases of negligence:• pure psychiatric injury• pure economic loss: by words or by acts

Omissions (no duty to rescue)Public authorities: 2 grounds• When PA has used their power but been careless in the exercise; or• That PA has failed to exercise their power which they were under a common law

duty to exercise

This week:

Part 1• Defences to Negligence

• Contributory Negligence• Volenti non fit injuria• Illegality• Legislative “immunity”• Exclusion clauses

Part 2• Remedies for Negligence

• Re-cap of Week 10, Torts A• Classification of Damages• Assessment of Damages• Wrongful Death & Survival of

Actions

Contributory Negligence

• “…a Pl is guilty of contributory negligence when the Pl exposes himself or herself to a risk of injury which might reasonably have been foreseen and avoided and suffers an injury within the class of risk to which the Pl was exposed” (per McHugh J in Joslyn v Berryman (2003) 214 CLR 552 at [16]).

• Historically a complete defence (Williams v Commissioner for Road Transport (1933) 50 CLR 258), but now partial defence as per apportionment schemes: s (10)(1) Law Reform Act (Qld).

Contributory Neg cont.

To establish CN, Def must prove:

Pl at fault or negligent

The fault/negligence contributed to

harm suffered by Pl;

The harm was RF consequence of

Pl’s fault/negligence

Contributory Neg: fault or negligence of Pl

• Pre-CLA, a more lenient standard of care was applied to Pls: Caterson v Commissioner for Railways (1973) 128 CLR 99.

s.23 CLA sets test for fault:(1) The principles that are applicable in deciding whether a

person has breached a duty also apply in deciding whether the

person who suffered harm has been guilty of contributory

negligence 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 decided on the basis of what that

person knew or ought reasonably to have known at the

time.

Contributory Neg: fault or negligence of Pl

Child Pl judged according to standard of a child of same age, intelligence and experience: McHale v Watson (1966) 115 CLR 199. See also:

NSW v Griffin [2004] NSWCA 17Doubleday v Kelly [2005] NSWCA 151

Waverley Council v Ferreira (2005) Aus Tort Reps 81-818Cf Manly Council v Byrne [2004] NSWCA 123

A sudden emergency created by the Def may render the Pl’s conduct reasonable in the circumstances. ‘Doctrine

of Alternative Danger’ (Caterson v Commissioner of Railways). Eg. Shelley v Szelley [1971] SASR 430

Azzopardi v Constable & Azzopardi v Thompson [2006], two rescuers hit by a motor vehicle contributed to their injury by not taking due care when assisting another motorist. Ipp JA (dissent) would have reduced damages to 25%.

Employment: often, employee conduct characterised as mere inattention rather than CN: McLean v Tedman (1984) 155 CLR 306.Intoxication: intoxicated Pl judged against standard of a reasonable sober person: Joslyn v Berryman (2003) 214 CLR 552.

Contributory Neg: Causation

A Pl’s conduct may be causally relevant in 3 ways (McGlone & Stickley, 2009):

• their own carelessness caused the accident: eg. Griffiths v Doolan [1959] Qd R 30; Poole v State Transport Authority (Rail Division) (1982) 31 SASR 74).

• the Pl’s conduct increased the risk of the harm: eg. Azzopardi v State Transport Authority (Rail Division) (1982) 30 SASR 434).

• the Pl’s conduct aggravated the damage caused by the Def’s negligence: eg. Eagles v Orth [1975] Qd R 197.

The Pl’s negligence need not contribute in any way to the accident itself: O’Connell v Jackson [1971] 3 All ER 129. Cf Monie v Cth [2007] NSWCA 230

Image source: goodgerster (flickr)

Contributory Neg: Apportionment

• Court directed to reduce damages to extent it thinks ‘just and equitable’: s. 10(1)(b) Law Reform Act 1995 (Qld). – Ct will assess culpability of both parties. Eg. Pennington v Norris

(1956) 96 CLR 10.“By ‘culpability’ we do not mean moral blameworthiness but degree of departure from the standard of care of the reasonable man. To institute a comparison in respect of blameworthiness in such a case as the present seems more or less impracticable because, while the defendant’s negligence is a breach of duty owed to other persons and therefore blameworthy, the plaintiff’s ‘contributory’ negligence is not a breach of any duty at all, and it is difficult to impute ‘moral’ blame to one who is careless merely of his own safety” (at 16).

• CN may defeat a claim through 100% apportionment if court considers it just and equitable to do so: s. 24 CLA.

Legislative findings of Contibutory Neg

Image source: willia4 (flickr)

Pl intoxicated:- Presumption that Pl is CN if

intoxicated at time of accident: s.47 CLA

- May be rebutted if intoxication did not contribute to breach, or if intoxication wasn’t self-induced: s. 47(3).

- Eg. Russell v Edwards (2006) Aus Torts Reps 81-833

Pl relies on intoxicated Def:- Presumption of CN: s. 48 CLA.

(s.49 if Def driving)

- May be rebutted if intoxication didn’t contribute to Def’s breach, or Pl could not have reasonably avoided relying on Def in circumstances: s.48(3)

• 25% min reduction applies: s.47(4) (intoxicated Pl); s. 48(4) (intoxicated Def).

• Higher reduction (50% min) if neg involves intoxication and motor vehicle: s.47(5) (Pl was driver); s.49 (Def is driver and Pl relies on Def).

“intoxicated”: under the influence of alcohol or a drug to the extent that the person’s capacity to exercise proper care and skill is impaired. (Sch 2)

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Volenti Non Fit Injuria

• “no injury is done to one who voluntarily consents”. Also described in the CLA as ‘voluntary assumption of risk’.

• A complete defence: Rootes v Shelton (1967) 116 CLR 383.

• Significant in employment context in 19th C: Thomas v Quartermaine (1887) 18 QBD 68; Smith v Charles Baker & Sons [1891] AC 325.

• Volenti difficult to establish and since apportionment legislation, courts prefer to find CN.

To establish Volenti, Def must establish the Pl:• Had full knowledge of the risk; and• Voluntarily accepted the physical and the legal risk.

Establishing Volenti: Full knowledge of risk

• Full knowledge of risk: – Subjective test. Mere knowledge alone doesn’t imply consent (Smith v

Charles Baker & Sons [1891] AC 325).

• In cases of ‘obvious risk’: s. 14 CLA– A risk that would be obvious to a reasonable person in Pl’s position: s.

13 CLA

• Dangerous recreational activities: s. 19 (Def not liable for materialisation of obvious risk of dangerous rec activity)– ‘an activity engaged in for enjoyment, relaxation or leisure that involves

a significant degree of risk of physical harm to a person’ (s. 18). Eg. Fallas v Mourlas [2006] NSWCA 32

• Pl’s harm has to be the materialisation of the obvious risk of the activity.

• See Kelly v Qld [2013] QSC 106

Establishing Volenti: voluntary acceptance of risk

• Voluntary acceptance of risk– Pl must have accepted both risk of injury (physical risk) AND the risk

that reasonable care would not be taken by the Def (legal risk): Imperial Chemical Industries v Shatwell [1965] AC 656.

– In Rootes v Shelton: while Pl voluntarily assumed risk of colliding with an obstruction in the water, it couldn’t be said that the Pl voluntarily assumed risk that Def would act negligently by carelessly failing to warn him of the presence of an obstruction or in steering the boat.

– See also Leyden v Caboolture Shire Council [2007] QCA 134

• Consent may be implied in some cases:– Eg. Highway users: Holmes v Mather (1875) LR 10 Ex 261– Inexperienced drivers: Imbree v McNeilly [2008]– Defective vehicle, consent goes to defectiveness, not negligent driving:

Gent-Diver v Neville [1953] St R Qd 1

Illegality

• Pl’s illegal activity:• Recovery denied if at the time of injury, the Pl was carrying

out or engaged in an indictable offence, and that conduct contributed to the risk of harm (s. 45).

• Not necessary for Pl to be convicted of offence (s. 45(4)).• s. 45(2) allows court to award damages where denial of

liability would be harsh and unjust, but requires reduction by min 25%.

• Joint illegal enterprise:• Where both parties engaged in illegal activity• Must be connection between illegal activity and the negligent

conduct.

Illegality

• Two judicial approaches to joint illegal enterprise:– Pl should not recover damages on basis that no duty of care

owed by Def due to nature of activity (eg. Jackson v Harrison (1978) 138 CLR 438 (‘it is correct to base the defence upon a denial of a duty of care in the particular circumstances rather than upon a denial of a remedy for a breach of the duty of care’ per Jacobs J)

or– Nature of joint activity gives rise to a full defence.

• Gala v Preston (1991) 172 CLR 243 (Majority excluded liability on lack of proximite rship attracting duty of care)

– Fabre v Arenales (1992) 27 NSWLR 437.

Immunity from liability

• Inherent risks: Def is not liable for damage arising from an inherent risk if reasonable care is taken. An inherent risk is one that cannot be avoided by the exercise of reasonable care: Rootes v Shelton; Woods v Multi-Sport Holdings P/L (2002) 208 CLR 460. See s.16 CLA.

• Cf Rescue cases: volenti won’t normally succeed against the reasonable attempts of a rescuer who is injured, even if aware of risk and danger (Haynes v Harwood [1935] 1 KB 146). Where rescuer intervenes unreasonably and unnecessarily with full appreciation of risks, volenti may apply: Cutler v United Dairies [1933] 2 KB 297

• Public safety entities: ss 26 and 27 CLA. Entities are prescribed in Civil Liability Regulation 2014 (Qld) Sch 1 & 2.

• Volunteers: CLA provides protection from liability if the volunteer carries out the community work in good faith: s. 39 CLA.

– ‘Community work’ defined as ‘‘...work that is not for private financial gain and that is done for a charitable, benevolent, philanthropic, sporting, recreational, political, educational or cultural purpose’: s. 38

– No protection if offence committed; if impaired by drugs or alcohol; or if act/omission outside scope of work of organisation or against instruction (ss. 40-42).

Exclusion of liability

Clauses construed strictly; must refer specifically to negligence or all bases of liability: Davis v Pearce Parking Station P/L (1954) 91 CLR 642.

In Aus, trend is to avoid seeing exclusion clauses as negativing liability. Eg. Evans v Port of Brisbane Authority (1992) Aus Torts Reps 81-181. See also Macleay P/L (trading as Wobbies World) v Moore (1992) Aus Torts Reps 81-151.

Image source: Daniel Lobo (flickr)

2. Remedies: Damages

• Assessment of damages for personal injury now governed by civil liability legislation in each Aust jurisdiction (eg. CLA 2003 (Qld))

• Common law principles of assessment still important

Nominal

Contemptuous

ExemplaryAggravated

Compensatory

Not available for personal injury caused by negligence: s. 52 CLA

Damages: Principles for Assessment

Principles for Assessment

Indemnity Principle:

putting the Pl in position they would

have been in had the tort

not occurred.Once & for all

rule: for a single cause of action damages must be assessed at common law

only once (Fitter v Veal (1701) 12

Mod 542). Exception in case

of continuing torts (Adams v

Ascot Iron Foundry P/L (1968) 72 SR (NSW) 120).

Lump sum rule: damages must be paid in lump sum. But see s. 65 CLA (allows

structured settlements). A

court has no duty to ensure the Pl uses the

award of damages

appropriately (Todorovic v

Waller (1981) 150 CLR 402 at

412).

Duty to mitigate: Pl has obligation

to mitigate losses. Burden on Def to prove

Pl failed to mitigate (Munce v Vinidex [1974] 2 NSWLR 235). See s. 53 CLA –

def can suggests mitigating

action.

Damages for Personal Injury

• 2 categories of compensatory damages:– Special Damages: those capable of precise

financial calculation (Paff v Speed (1961) 105 CLR 549).

– General Damages: difficult to estimate or calculate in monetary figures (Paff v Speed). May include consideration of past, present and future impairment and involve economic and non-economic items.

Damages for Personal Injury

• Special damages• Hospital & medical expenses: actual costs of

treatments up to date of trial. • Past loss of earning capacity: under s.60 of Civil

Proceedings Act 2011 (Qld) award must be reduced by income tax. The CLA caps loss of earning at 3 x average weekly earnings (s. 54(2)).

• Other expenses: reasonably necessary for Pl’s condition (eg. Diamond v Simpson (No 1) (2003) Aus Torts Reps 81-695).

Damages for Personal Injury

• General Damages:– Pecuniary

• Future hospital and medical: ‘reasonably necessary’• Past & future gratuitous care: s. 59(1)• Future loss of earning capacity: s. 54 (caps); s. 55

– Non-Pecuniary• Pain & suffering, loss of amenities, loss of expectation of life,

and disfigurement. (Subjective loss)• Assessed according to CLA “general damages”• s.62 (caps), s. 61 (ISV allocated under Civil Liability

Regulation & applied to sliding scale in Sch 6 of the CLR)• Factors: Pl’s degree of insight into injury; age & life

expectancy; pain & suffering; loss of amenities; effect of any pre-existing condition.

Damages for property damage

• Restitution for loss of value of property normally amounts to:– the cost of repair in the case of partial destruction: Murphy v Brown

(1985) 1 NSWLR 131.

Or– the diminution in value in the case of partial destruction: Davidson v J S

Gilbert Fabrications P/L [1986] 1 Qd R 1

Or– total replacement costs in the case of total deprivation or destruction:

Wheeler v Riverside Coal Transport Co P/L [1964] Qd R 113.

Survival of Causes of Action

• The Action:– At common law, death of either Pl or Def extinguished any right of

action.– Legislation now provides causes of action survive the death of a person

for the benefit of their estate (as well as against, if deceased is the Def). In Qld this is the Succession Act 1981: s. 66

• Damages:• Awarded to compensate the pecuniary losses to the estate from the time of

injury until death.

Recoverable: • Medical, hospital & related expenses

incurred prior to death.• The deceased’s loss of earning capacity

to the date of death is compensated, subject to limitations (such as in s. 54 of the CLA Qld).

• Funeral expenses. • Any insurance payments not taken into

account in assessment.

Excluded:• Future loss of earning capacity

(s. 66(2)(d)(ii) Succession Act Qld).

• The right to recover for pain and suffering, bodily injury, mental harm or curtailment of expectation of life.

• Exemplary damages.

Wrongful Death

• Governed by legislation in Australia, to provide for compensation to a limited class of persons for the death of a relative by a tortious act.

• In Qld, the relevant legislation is Part 10 of the Civil Proceedings Act 2011 (Qld) which replaced s.17 of the Supreme Ct Act 1995 (Qld). See: s. 64 CPA

• Under s. 65(1), not more than 1 proceeding can be brought against a person in relation to a death. The proceeding may be brought by the personal representative of the deceased person, or by any 1 or more of the members of the deceased's family who suffered damage because of the death, for the benefit of the members of the deceased's family who suffered damage because of the death (s. 65(2)).

• “member of the deceased's family” means: spouse, parent, grandparent and child of deceased. See s. 62 for definitions.

• s.67 – damages for spouse’s benefit. Possible financial benefit from future relationships not taken into account, but will be if currently in a new relationship.

Wrongful Death cont.

Damages that may be claimed for wrongful death:• Pecuniary loss – representing the financial contribution to the household by the deceased. May be actual or prospective (Berry v Humm & co [1915] 1 KB 627). Loss of income contributed and financial loss stemming from the death are recoverable (Robertson v Robin [1967] SASR 151)•Non-pecuniary loss – allowed if the loss is capable of being assessed in monetary terms. They include household services; and Solatium and loss of consortium.•Relevant factors for determining each dependant’s benefit include how much and for how long the deceased would have earned and contributed financially to the dependant (Parker v Commonwealth (1965) 112 CLR 295). Also, the extent and period of dependency (Scholefield v Bates [1958] SASR 317). See also Hanlon v Hanlon [2006] TASSC 1.

Review

In this module you have learned to:

• Understand the scope and definition of the defences of contributory negligence, illegality and voluntary assumption of risk at both common law and statute;

• Outline the central factors taken into consideration by the courts in dealing with these defences;

• Identify and apply appropriate defence(s) in particular fact scenarios; and• Understand how heads of damage are used to calculate an award of

damages and apply this understanding to relevant fact scenarios.

Acknowledgements – References

• Danuta Mendelson, The New Law of Torts (2nd ed 2010), published by Oxford University Press.

• Rosalie Balkin and Jim Davis, Law of Torts (4th ed, 2009) published by LexisNexis Butterworths.

• Julia Davis, Connecting with Tort Law (2012) published by Oxford University Press.• Bernadette Richards, Karinne Ludlow and Andy Gibson, Tort Law in Principle (5th ed,

2009) published by Thomson Reuters Lawbook Co.• Frances McGlone and Amanda Stickley, Australian Torts Law (2nd ed 2009)

published by LexisNexis Butterworths.• Martin Davies and Ian Malkin, Torts (Focus Series, 6th ed, 2012) published by

LexisNexis Butterworths.• Carolyn Sappideen, Prue Vines, Helen Grant and Penelope Watson, Torts

Commentary and Materials (10th ed, 2009) published by Thomson Reuters Lawbook Co.

• Sarah Withnall Howe, Greg Walsh and Patrick Rooney, Torts (LexisNexis Study Guide, 2nd ed, 2012) published by LexisNexis Butterworths.