Complete defense
Consent may take two forms: consent to the actual invasion of a protected
interest or consent to the risk of a tort being committed.
"if the defendants desire to succeed on the ground that the maxim volenti non
fit injuria is applicable, they must obtain a finding of fact that the plaintiff
freely and voluntarily, with full knowledge of the nature and extent of
the risk he ran, impliedly agreed to incur it" (Letang v Ottawa Electric Ry Co
[1926J AC 725 at 731)
Morris and Murray had been drinking all day. The D, who had a pilot
licence and a light aircraft, suggested flying the light craft. P agrred and
drove them both to airfield.
The conditions were very bad and all flights were cancelled. During the
flight, the plane crashed and Murray died and Morris seriously injured.
Murray consumed 17 whiskeys. Morris survives and makes a claim for
damages. Defendant cited volenti non fit injuria.
Held
Volenti non fit injuria was allowed. The actions of the P in accepting a ride in an
aircraft from an obviously heavilty intoxicated pilot wavied the right to
compensation.
The towing boat was being driven along a fairly straight and sufficiently
wide stretch of river during the manoeuvre, travelling at 35 miles/hour.
As the appellant was passing the starboard side of the boat's wake he
was temporarily blinded by spray and had need to clear his eyes before
starting to turn inwards again. This may possibly have caused him to
swing wider in executing his manoeuvre than otherwise he might have
o When he could see again he was faced with a stationary boat. He
endeavored to avoid colliding with it but was unable to do so. In the
result he was severely injured. He sued the respondent who was the
driver of the towing boat for failure to take due care in the control of
the boat and fore failure to warn him of the presence of the
stationary boat
Jury found for the plaintiff but the Supreme court set aside the verdict on
the ground that the respondent driver of the towing vehicle owed no
relevant duty to the appellant, both being participants in a sport who had,
by engaging in it, accepted the risks of injury which might be involved in
taking part in it
Held:
Appeal allowed
Volenti non fit injuria = Not available in motor car accident claims or work
related injury claims in NSW: Motor Accidents Compensation Act 1999
(NSW) s76; Workers Compensation Act 1987 (NSW) s151.
Does not need to know precise nature, extent, manner of risk only
type or kind.
5F Meaning of obvious risk
(1) For the purposes of this Division, 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.
An obvious risk is: obvious to reasonable person, patent or common
knowledge, even if low probability of happening, and even if not
prominent or observable.
5H No proactive duty to warn of obvious risk
(1) A person ( "the defendant") does not owe a duty of care to another
person ( "the plaintiff") to warn of an obvious risk to the plaintiff.
(2) This section does not apply if:
(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.
D does not owe DOC to warn P of obvious risk.
Unless P request advice/information, D is required by law to warn, D is
providing professional service (not doctor) and risk is death/personal
injury to P during those services.
Contributory negligence
Consists of the plaintiff's failure to take reasonable care for his or her own safety
and well-being which contributes, at least in part, to a subsequent injury.
Causation
D must prove causal link between Ps negligence and damage suffered
by P.
Same principles are causation in negligence must be reasonably
foreseeable.
Use common sense (March v Stramare).
In order to establish this defence the defendant must plead and prove:
The injury of which the plaintiff complains results from the particular risk to
which that party was exposed by a lack of care
The harm sustained by the plaintiff belongs to that general class of perils to
which the plaintiff was exposed by his or her negligent conduct
The negligence of the plaintiff contributed to the injury
Matter of causation: in Caswell v Powell Duffryn Associated Collieries Ltd
[1940] AC 152 at 165 - if the plaintiff were negligent, but his negligence was
not a cause operating to produce the damage, there would be no defence. I
find it impossible to divorce any theory of contributory negligence from the
concept of causation"
There was fault or negligence on part of the plaintiff
Nance v British Colombia Electric Ry Co Ltd [1951] AC at 611 per Viscount
Simon: ".all that is necessary to establish such a defence is to prove to the
satisfaction of the jury that the injured party did not in his own interest take
reasonable care of himself and contributed, by this want of care, to his own
injury"
This is a question of fact and obviousness of risk is a factor
The standard of care expected of the plaintiff is measured against
a person of ordinary prudence
In some situations the negligent actions of the plaintiff might not be a
cause of the accident itself; they may, nevertheless, amount to contributory
negligence where, but for those actions, the resultant harm would have been
appreciably less
Even a very young child is guilty of contributory negligence and
consequent reduction in damages could be more than nominal - there is an
objective standard but the child should demonstrate that degree of care for
its own safety as could reasonably be expected of a child of similar age,
intelligence and experience - younger child, less experience
Intoxication: Contributory negligence consists in a failure to take
reasonable care in one's own safety so a passenger injured by negligent
drunken driving is contributorily negligent when accepting a lift knowing, or
having reason to be aware that driver has an impaired capacity to drive
carefully
Insurance Commissioner v Joyce (1948) 77 CLR 39 per Latham CJ: if the
passenger is sober enough to know and understand the risk, he or she will no
doubt be negligent
Moreover there is authority for the view that where the passenger has
imbibed so much alcohol that any capacity to know and understand the
danger has been seriously weakened, and this incapacity is self-induced,
contrib. negligence will lie
The plaintiff (appellant) accompanied by his 14 year old son had driven
a friend some 40 miles to a railway station, in order that the friend
might catch the Brisbane-Sydney express. The plaintiff carried the
friend's luggage onto the carriage, and as he was leaving the carriage
he noticed that the train had started to move.
No-one in the carriage heard any warning that the train was about to
depart. The next station at which the train was to stop was some 80
miles away
The train was not travelling very fast when the plaintiff, thinking of his
son on the platform some 40 miles from home, jumped on the platform
and was injured
There was no direct evidence that there was a communication cord in
the carriage, but there was evidence from which it might have been
inferred that there was such a cord
Appeal from a judgement of the CA Division of the Supreme Court of
NSW
Did the appellant, by the very act of jumping from the train fail to take
reasonable care for his own safety and thus act unreasonably?
Held
Appeal allowed
The plaintiff, a child aged 7, who was a guest in the defendant's house,
suffered personal injury when she fell off a trampoline at a time when
there was no adult supervision
Held:
b)
c)
Defendant's house was close to a public road. For the purpose of making
some repairs to his house the defendant put a pole across the road
In the early evening, at a time when this obstruction was visible at a
distance of 100 yards, the plaintiff, riding his horse, collided with the pole and
was injured
In an action to recover damages for personal injury based on the
defendant's negligence, the plaintiff's lack of care for his own safety was
held to preclude him recovering any damages from D
Common law rule that contributory negligence is a complete defence
was stated by Lord Ellenborough CJ:
"One person being in fault will not dispense with another's using ordinary care
for himself. Two things must concur to support this action, an obstruction in
the road by the fault of the defendant, and no want of ordinary care to avoid
it on the part of the plaintiff."
personal injury, but has also been held to cover the purely economic loss
flowing from negligent misrepresentation
No account is taken of moral blameworthiness (Pennington v Norris)
"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 of his own safety'
Not necessary to prove a breach of duty to another but merely that the
plaintiff has exhibited a lack of care for his/her own safety, thereby
contributing to the injuries suffered
Apportionment legislation must be 'just and equitable' from the point of
view of both the plaintiff and the defendant
This is an appeal from the Supreme Court of Tasmania. The appellant was
The plaintiff maintains that the learned judge was wrong in finding the
plaintiff at fault, or at least finding him equally at fault wit the defendant, and
he should have judgment for the full amount or at least a sum substantially
larger than one-half of that amount
Held
Court held trial judge but altered from 50% to 80% against defendent
What has to be done is to arrive at a "just and equitable" apportionment as
between the plaintiff and the defendant of the "responsibility" for the
damage. It seems clear that this must of necessity involve a comparison of
culpability - which is a degree of departure from the standard of care of the
reasonable man
o
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 P's contrib 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
Appeal allowed
The appellant (plaintiff) was injured at work when he slipped and fell on a wet
tiled floor of the toilets which had recently been mopped during cleaning. No
sign had been posted at the entrance to the toilets warning of the wet floor.
He sued his employer, the respondent (defendant) in negligence. The trial
was before a judge and jury
Held
It
d)
4 year old P crossing road with grandfather , grandfather released Ps hand and
avoided the bus but the P did not
C.N. does not extend to third party
Regardless of grandfathers negligence, the P still able to recover damages
against the company
CLA s 30(3)
Mere fact that P was acting illegally did not of itself constitute a defence.
Question is: is it part of the purpose of the law which P has offended to
disentitle P of right to damages?
This is an appeal from the judgement of Napier J for the defendant, the
Municipal Tramway's Trust, in an action for negligence against the trust
under the Wrongs Act 1936 of SA. The action was brought by the
parents of Alfred John Henwood in respect of his death as the result of
an accident when he was travelling on one of the defendant's trams in
1937
He was a passenger on the tram on which he became sick and left his
seat in the tram, leaned out over a rail on the side off the tram and
vomited. His head struck in succession two steel standards, which were
in the middle of the street, and he died shortly afterwards. The
standards were 17 inches from side of tram
The negligence alleged depends upon the construction of the tram
without, it is said, sufficient barriers to prevent/discourage passengers
from leaning out, taken in conjunction with the nearness of the
Held
Intoxication
Civil Liability Act 2002 (NSW) ss 47, 48, 50
Definition of intoxication s47,48
49 Effect of intoxication on duty and standard of care
(1) The following principles apply in connection with the effect that a
persons intoxication has on the duty and standard of care that the person is
owed:
(a) in determining whether a duty of care arises, it is not relevant to
consider the possibility or likelihood that a person may be intoxicated or that
a person who is intoxicated may be exposed to increased risk because the
persons capacity to exercise reasonable care and skill is impaired as a result
of being intoxicated,
(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 of itself
increase or otherwise affect the standard of care owed to the person.
SOC is not higher/existent merely because of intoxication.
50 No recovery where person intoxicated
(1) This section applies when it is established that the person whose death,
injury or damage is the subject of proceedings for the recovery of damages
was at the time of the act or omission that caused the death, injury or
damage intoxicated to the extent that the persons capacity to exercise
reasonable care and skill was impaired. no damages will be recoverable.
(2) A court is not to award damages in respect of liability to which this Part
applies unless satisfied that the death, injury or damage to property (or
some other injury or damage to property) is likely to have occurred even if
the person had not been intoxicated. unless likely to occur anyway
(3) If the court is satisfied that the death, injury or damage to property (or
some other injury or damage to property) is likely to have occurred even if
the person had not been intoxicated, it is to be presumed that the person
was contributorily negligent unless the court is satisfied that the persons
intoxication did not contribute in any way to the cause of the death, injury or
damage. even so, presumption of CN
(4) When there is a presumption of contributory negligence, the court must
assess damages on the basis that the damages to which the person would
be entitled in the absence of contributory negligence are to be reduced on
account of contributory negligence by 25% or a greater percentage
determined by the court to be appropriate in the circumstances of the case.
if presumed, then at least 25% reduction in damages
(5) This section does not apply in a case where the court is satisfied that the
intoxication was not self-induced. does not apply if not self induced
which they did. Some of the guests, including the plaintiff, began swimming.
After spending about 20 minutes in the pool, the plaintiff got out and dived
in again at the shallow end of the pool
The plaintiff struck his head on the floor of the pool and sustained
serious injury
In a negligence action trial against the defendants the trial judge in the
District Court found that the defendants, as occupiers of the premises, owed
the plaintiff a duty of care and that there had been a breach of duty in failing
adequately to supervise and control the party guests
However, the evidence established that, at the time he dived into
the pool the plaintiff was intoxicated by alcohol to such an extent that his
capacity to exercise reasonable care and skill was impaired
Trial judge also found that in terms of s50(2) it had not been established
that the plaintiff's injury was likely to have occurred even if he had not
been intoxicated accordingly the court awarded the plaintiff no damages
Appeal by the plaintiff dismissed by NSW CA which did not find it
necessary to decide whether the defendants owed the plaintiff a D0C or
whether the defendants were guilty of a breach of duty
The defendants were not liable in damages to the plaintiff on account of
his alcohol intoxication
Held
Plaintiff's alcohol intoxication was "self-induced" in terms of s50(5) "self-induced" was equated with voluntary. It was not relevant that the
plaintiff, a person with limited experience of drinking alcohol, was ignorant
of the quantity of alcohol required to make him intoxicated