TORTS LECTURE TORTS LECTURE

DEFENCES IN NEGLIGENCE

INTRODUCTION: FACTORS THAT INTRODUCTION: FACTORS THAT MAY UNDERMINE P’S CLAIMMAY UNDERMINE P’S CLAIM

The plaintiff's:– pre-existing knowledge about the

defendant’s incapacity;– pre-existing knowledge of the risk

associated with the state of affairs that gave rise to the negligence

– failure to take reasonable care of his or her own safety

– unlawful conduct

DEFENCESDEFENCES

Contributory Negligence

Voluntary Assumption of Risk

Diminished standard of care

Unlawful conduct/illegality

DIMINISHED STANDARD OF DIMINISHED STANDARD OF CARECAREInsurance Commissioner v Joyce: – ‘the case may be described as involving

a dispensation from all standards of care’, so that, … there was no breach of duty by the defendant...’

‘Diminished standard of care’ is technically not a defence as such

THE NATURE OF CONTRIBUTORY THE NATURE OF CONTRIBUTORY NEGLIGENCE: NEGLIGENCE: Joslyn v Berryman

(Per (McHugh J): At common law, 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 an injury within the class of risk to which the plaintiff was exposed. In principle, any fact or circumstance is relevant in determining contributory negligence if it proves, or assists in proving, a reasonably foreseeable risk of injury to the plaintiff in engaging in the conduct that gave rise to the injury suffered

The test of contributory negligence is an objective one

Contributory Negligence: The Contributory Negligence: The nature of the P’s conductnature of the P’s conduct

The defence is established if the defendant proves the plaintiff guilty of conduct which amounts to a failure to take care for his/her own safety

To plead the defence, D bears the onus of proof and must prove the requisite standard of care that has been breached by P.

The Substance of Apportionment The Substance of Apportionment Legislation (Legislation (Law Reform Law Reform (Miscellaneous) Act 1965 (NSW) (Miscellaneous) Act 1965 (NSW) s10s10

Where any person suffers damage as the result partly of his/her own fault and partly of the fault of any other persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering damage, but damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimants share in the responsibility for the damage

CIVIL LIABILITY ACT Part 8CIVIL LIABILITY ACT Part 8

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.

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.

Voluntary Assumption of RiskVoluntary Assumption of Risk

In general where P voluntarily assumes the risk of a particular situation, she/he may not be able to maintain an action against D for negligence in relation to that situation

The elements– P must have perceived the danger– P must have fully appreciated the danger/known– P must have voluntarily accepted the risk

What constitutes acceptance of the risk?

RISKS UNDER THE CIVIL RISKS UNDER THE CIVIL LIABILITY ACTLIABILITY ACT

RISKS

OBVIOUS INHERENT

VAR IN THE CIVIL LIABILITY ACT VAR IN THE CIVIL LIABILITY ACT (Division 4, S5F)(Division 4, S5F) (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.

S 5I(2) An inherent risk is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill.

QualificationsQualifications

Under s5G(1) ’[i]n determining 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’

under s5H(1) the defendant ‘does not owe a duty of care to another person ( "the plaintiff" ) to warn of an obvious risk to the plaintiff The defendant retains the duty to warn of obvious risks in the following cases:– a) the plaintiff has requested advice or information

about the risk from the defendant, or – (b) the defendant is required by a written law to warn

the plaintiff of the risk, or – (c) the defendant is a professional and the risk is a risk

of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant

Recreational Activities: Obvious Recreational Activities: Obvious RisksRisks

As a matter of law, there is a point at which those who indulge in pleasurable but risky pastimes must take personal responsibility for what they do. That point is reached when the risks are so well known and obvious that it can reasonably be assumed that the individuals concerned will take reasonable care for their safety (Prast v The Town of Cottesloe Ipp J )

CLA:CLA:

S5L provides that the defendant ‘is not liable in negligence for harm suffered by another person ("the plaintiff") as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff’

s5L(2) specifically stipulates that the s5L(1) exclusion of liability for harm suffered as a result of obvious risk associated with recreational activities ‘applies whether or not the plaintiff was aware of the risk’.

INHERENT RISKINHERENT RISK

S5I(1) A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk.

PRESUMPTIONS OF AWARENESS PRESUMPTIONS OF AWARENESS OF OBVIOUS RISK (s5G)OF OBVIOUS RISK (s5G) (1) In determining 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.

NO PROACTIVE DUTY TO NO PROACTIVE DUTY TO WARN OF RISKSWARN OF RISKS

Under the legislation D has no duty to warn P of an obvious risks except where:– (a) the plaintiff has requested advice or information

about the risk from the defendant, or– (b) the defendant is required by a written law to warn

the plaintiff of the risk, or– (c) the defendant is a professional and the risk is a risk

of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant.

RISKS IN RECREATIONAL RISKS IN RECREATIONAL ACTIVITIES (CLA DIVISION 5)ACTIVITIES (CLA DIVISION 5) S5K: "dangerous recreational activity" means a

recreational activity that involves a significant risk of physical harm

"recreational activity" includes:– (a) any sport (whether or not the sport is an organised

activity), 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.

S5L: No liability for harm suffered from obvious risks of dangerous recreational activities

Case Law on Risks in Recreational Case Law on Risks in Recreational Activities)Activities)Fallas v Mourlas [2006] NSWCA 32Falvo v Australian Oztag Sports

Association & Anor [2006] Aust Tort Reports 81-831 (2 March 2006)

THE THREE RELATED DEFENCESTHE THREE RELATED DEFENCES– Diminished standard of care– Contributory negligence– Voluntary assumption of risk

ILLEGALITYILLEGALITY

The traditional Common Law position on illegality is usually summed up in the Latin maxim ex turpi causa non oritur action which means that “no cause of action may be founded on an illegal act”

IllegalityIllegality

There is no general principle of law that a person who is engaged in some unlawful act is to be disabled from complaining of injury done to him by other persons, either deliberately or accidentally. He does not become a caput lupinum (an outlaw) ( per Latham CJ: Henwood v Municipal Tramsways Trust

The Test to Disentitle the The Test to Disentitle the DefenceDefence In each case the question must be

whether it is part of the purpose of the law against which the the P has offended to disentitle a person doing the prohibited act from complaining of the other party’s act or default

Italiano v Barbaro (injury sustained while parties were in the process of looking for a spot to stage accident)

Illegality under the Civil Illegality under the Civil Liability ActLiability Act

Section 54– (1) A court is not to award damages in respect of

liability… if the court is satisfied that: – (a)  the person whose death, injury or damage is the

subject of the proceedings was, at the time of the incident that resulted in death, injury or damage, engaged in conduct that (on the balance of probabilities) constitutes a serious offence, and

– (b)   that conduct contributed materially to the risk of death, injury or damage

The Scope of the sectionThe Scope of the section

The section applies ‘whether or not a person whose conduct is alleged to constitute an offence has been, will be or is capable of being proceeded against or convicted of any offence concerned’

Self-Defence against Unlawful Self-Defence against Unlawful conduct: (Part 7 CLA)conduct: (Part 7 CLA)S52:The legislation provides

immunity to the defendant who causes damage to the plaintiff while acting in self-defence in circumstances where the plaintiff’s conduct that provoked the act of self-defence was unlawful.

Self-Defence: The ScopeSelf-Defence: The Scope

S52(2)The defence is only available ‘if and only if’ at the time of the relevant act, the defendant believed the conduct was necessary:– (a) to defend himself or herself or another person, or – (b) to prevent or terminate the unlawful deprivation of his

or her liberty or the liberty of another person, or – (c) to protect property from unlawful taking, destruction,

damage or interference, or – (d) to prevent criminal trespass to any land or premises or

to remove a person committing any such criminal trespass, and the conduct is a reasonable response in the

circumstances as he or she perceives them

Self-Defence: The ScopeSelf-Defence: The Scope

S54: Where D’s conduct is judged to be an unreasonable response ‘a court is nevertheless not to award damages against the person in respect of the conduct unless the court is satisfied that:

(a) the circumstances of the case are exceptional, and

(b) in the circumstances of the case, a failure to award damages would be harsh and unjust