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Defences to Negligence

Volenti non fit injuria: voluntary assumption of risk;


the relevance of obvious risks
Volenti Non Fit Injuria (voluntary assumption of risk)
*If a plaintiff has voluntary assumed the actual risk which causes the damage then this will be a complete
defence.
*The defendant must prove the plaintiff actually knew of and appreciated the relevant risk: Morris v Murray
However, the plaintiffs capacity to comprehend and appreciate the risk might be limited or
impaired
Minor, mental illness: Waverley Council v Ferreira
As a result of the plaintiffs own fault: intoxicated: Romeo v Conservation Commission of NT
Lead to a contributory negligence
One way to ensure knowledge of a risk on the part of the plaintiff is for the defendant to give a warning of a
particular risk
Warning must have been of the particular risk
If the danger is within the control of the defendant, only warning itself may not be sufficient to
absolve the defendants liability.
Especially those who vulnerable or children: Doubleday v Kelly
CLA s 5F - 5I: obvious risks
s 5F: Obvious risk
Objective test, obvious to a reasonable person in the position of the plaintiff: Romeo v
Conservation Commission of NT
According to common sense: Hugh v Lord Advocate
Even the opportunity to occur is not great: Wagon Mound (No 2)
Risk (condition to give risk to that risk) not prominent
s 5G: Injured person presumed to be aware of the risk (the type or the kind of the risk).
EXCEPTIONS: minor: Waverley Council v Ferreira; Doubleday v Kelly
s 5H: No duty to warn of obvious risk: Romeo Conservation Commission of NT, EXCEPTIONS:
- Requested by plaintiff
- Requested by law
- Defendant is a professional under the duty to warn (s 5P): Rogers v Whitaker
s 5I: No liability to warn inherent risk (e.g., sports): Rootes v Shelton
Inherent risk is a risk cannot be avoid by due diligence, therefore might be no breach:Woods v
Multi Sports Holdings Pty Limited.
CLA s 5J - 5N: recreational activities and inherent risks
s 5K: dangerous recreational activities involves a significant risk of physical harm,
Recreational activities including movies.
s 5L: no liability for harm suffered from obvious risk of dangerous recreational activity: Fallas v Mourlas
s 5M: when the risk is warned, no liability. Warning can be given to :
The plaintiff himself/herself. (1)
The person who accompanies or controls the incapacity person. (shall not be an incapable person)
(2)(a)
The parents of the incapable person. (whether or not they control or accompany the incapable
person) (2)(b)
Steps for working our an obvious risk in problem (recreational activities)
Whether the requirements of s 5K are satisfied
recreational activity
significant risk of physical harm
Whether the risk is obvious
s 5F: according to common sense, a reasonable person in the position of the plaintiff would think
If the risk is obvious, s 5L is satisfied, in terms of a dangerous recreational activity; or
Warning is not required, according to s 5H. (depends on the question)
MACA 1999 s140: voluntary assumption of risk in motor accident: not available
s 140 (2) unless they are engaged in motor racing
Sports
Participation in sport is violenti non fit injury for inherent risk of the game include foreseeable rule

breaking: Rootes v Shelton

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)

Generally all that is required is knowledge by the plaintiff of the


relevant circumstances, but not necessarily a willing acceptance
There is a clear distinction between P voluntarily assuming a risk and
that party entering into a relationship with D in which the standard of
care expected by the former of the latter is reduced to take account of
the special and peculiar circumstances in which both are placed
The other distinction is that while a finding of voluntary assumption of
risk demands knowledge of the risk and free acceptance thereof, a
modification of the standard of care arises solely from the plaintiff's
knowledge of the defendant's inability to attain a normal and
acceptable degree of skill and care
Person may be free of liability for negligent conduct: include a suitable
disclaimer in a contract with the injured party or to rely on such a
clause in an agreement which includes
Participation in sporting activities: on the one hand, it is undoubtedly
the case that mere participation, even in a dangerous sport does not
necessarily equate with acceptance of each and every associated risk
Participants are entitled to rely on all reasonable care
Defence may not be invoked when participants are injured by other
players in violation of generally accepted rules of the sport
D has to define the precise risk that plaintiff alleged to have run to
show P consented not only to some risk of injury but also to that
particular risk which culminated in an injury and that this consent was
free/voluntary
D must also show that P fully comprehended the extent of the risk
Where the plaintiff's judgement has also been adversely
affected by drink to the extent of being incapable of
appreciating the full extent of the risk, the defence of volenti
is unlikely to succeed

Whitfield v McPherson: A successful defence of voluntary assumption of


risk will excuse the defendant from the foreseeable consequences of his
conduct, notwithstanding that that conduct remains a cause, and in many
causes the only or a substantial cause, of the plaintiff's injury.
Beck v Mercantile Mutual Insurance Co Ltd: It is important for the D to
define the precise risk that the P is alleged to have run; for it must
be shown that the P consented not only to some risk of injury but
also to that particular risk which culminated the injury.

Morris v Murray [1991] - PILOT


The only circumstances where a finding of voluntary assumption of risk might be
made where both P and D are affected by alcohol is if their joint enterprise in
the consumption of liquor raises an inference that the P freely accepted
the risks inherent therein.

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.

Three things need to be established


- the nature of the risk
- the extent of the risk
- voluntarily agreed to run the risk, and doing
o Stocker LJ
When deciding whether P assumed risk by travelling with an intoxicated
driver/pilot, ask:
1. How intoxicated was the driver?
2. How obvious was this to the P?
3. What is the extent of potential risk if P accepts the offer of carriage?

Rootes v Shelton (1967) 116 CLR 383 - High Court of


Australia
Principle of Law: The law of negligence applies as between the
participants in a sport or game. However, participants in a sport or
game voluntarily assume such risk of injury as is inherent in the
activity.
Facts:

The appellant, an experienced water skier, was skiing on the Macquarie


river at Dubbo, performing in company with other experienced water
skiers an operation known as "crossovers" in which three skiers being
towed with ropes of different lengths pass from side to side across the
wake of the towing boat and across each other's paths
o Appellant at the material time was in the middle of the 3 men and
thus in crossing had to pass his tow rope over the skier ahead of
him and crouch under the rope of the skier behind him

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:

By engaging in a sport or pastime the participants may be held to have


accepted risks which are inherent in that sport or pastime
Whether a duty of care from one participant to another arises and if it
does, its extent, must necessarily depend in each case upon its
circumstances
No doubt there are risks inherent in the nature of water skiing, which
because they are inherent may be regarded as accepted by those who
engage in the sport. The risk of a skier running into an obstruction
which, because submerged or partially submerged or for some other
reason is unlikely to be seen by the driver or observer of the towing
boat may well be regarded as inherent in the pastime
But neither the possibility that the driver may fail to avoid, if
practicable, or if not, to signal the presence of an observed or
observable obstruction that the driver will tow the skier dangerously
close to such an obstruction is, in my opinion, a risk inherent in the
nature of sport
That there is a recognized practice amongst participants that
the driver or the observer should signal the presence of an
observed obstruction is no more than emphatic than the skier
does not accept these possibilities as risks which he must run
without recourse. There was no evidence of risks inherent in
the sport
If it is said that a participant in a sport or pastime has voluntarily
assumed a risk which is not inherent in that sport or pastime so as to
exclude a relevant duty of care, it must rest on the party who makes
that claim to establish the case in accordance with recognized
principles
Was the defendant's conduct which caused injury to the plaintiff
reasonable in all the circumstances including as part of the
circumstances the inferences fairly to be drawn by the defendant from
the plaintiff's participation in what was going on at the time
The appellant did not by his participation indicate to the respondent a
willingness to accept either the risk of the respondent's steering a
course which was closer to the stationary boat than was reasonable in
the circumstances, or the risk of his omitting to take all reasonable
measures to warn the appellant of the position of the stationary boat in
time for him to avoid it

Appeal allowed

Motor Accidents Compensation Act 1999 (NSW) s140


s 140 (2) unless they are engaged in motor racing

o The defence of volenti non fit injuria is NOT available in


respect of motor accidents, although circumstances that
would otherwise have given rise to a defence of volenti
will oblige a finding of contributory negligence: s 140(1)
Note motor accident means an accident caused
by the fault of the owner or driver of a motor vehicle
in the use or operation of the vehicle which causes
[personal injury

o Exception: the defence IS available against the driver of,


or a competent adult passenger in, a car engaged in
motor racing, whether lawful or illegal: s 140(2), (3)

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.

Civil Liability Act 2002 (NSW) ss SF-SN

D, providing recreational services, may reduce liability injured through


their services by:
1. Risk warnings:
Defined as: any sport (organised or not), any pursuit/activity for
enjoyment, relaxation or leisure, and any pursuit/activity that takes place
in prev: s5K
D does not owe DOC to another engaging in recreational services if risk is
subject to warning: s5M(1)
Does not apply to incapable person unless they are
controlled/accompanied by capable person/parent: s5M(2)
Warning must reasonably likely result in people being warned of risk they
are assuming before they actually engage in recreational activity. D does
not have to prove that P got/understood/capable of understanding the
warning: s5M(3)
May be oral or written: s5M(4)
Need not be specific can be general nature of the particular risk: s5M(5)
Cannot be used if:
1. Not given by or on behalf of them or the occupier of the premises
where RA takes place: s5M(6)
2. It contradicts written law of safety standards/codes: s5M(7)
3. It contradicts any representation made by D to P: s5M(8)
4. P is required by D to undertake recreational activity: s5M(9)
2. Exclusion clauses:
Term of a contract for the supply of recreation services may exclude,
restrict or modify any liability for negligence: s5N(1)
3. Dangerous recreational activities:
Defined as: recreational activity that involves a significant risk of physical
harm: s5K
D will not be liable for P if obvious risk of dangerous recreational activity
materialises: s5L
Applies whether or not P was aware of risk: s5L
Obvious Risks:
5G Injured persons presumed to be aware of obvious risks
(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.
Where obvious risk, P is presumed to be aware.
P bears onus of proof that they were not aware.

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.

Fallas v Mourlas KANGEROO SHOOTING


FACTS
- P and D went kangaroo shooting
- P was not involved in the shooting
- P was in a vehicle responsible for spotlight
- D said gun was jammed and tried to fix it, and when fixing it he shot the P in leg
by accident
- Two judges found P was engaged in dangerous recreational activity (as defined
by s5K), other did not.
- P was not responsible or was NOT near the guns, just the spotlight
- The D failed to establish that the recreational activity in which the P was
engaged in on the night in question was a dangerous reacreational activity for
the purposes of s 5L
o The risk of accidental discharge of gun while sitting in vehicle was not a
obvious risk of dangerous recreational activity as defined in s 5F
o D liable for injury suffered by P
- The conduct of the D was gross negligence and it was not reasonable to foresee
someone would act so careless

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.

s5R(2) CLA: To determine if P is liable for contributory negligence:


(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 determined on the basis of what that person knew or
ought to have known at the time.

D must prove P failed to take reasonable care of their own safety


negligence contribution to injury
Standard of care what reasonable person would have done to protect
THEMSELVES.
May be partial defence damages to P will be apportioned
May be complete defence - s5S of CLA: a court may determine a
reduction of 100% if the court thinks it just and equitable to do so

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).

a) Conduct amounting to contributory negligence


*Whether the plaintiff is contributory negligence is question of fact: Caterson v Commissioner of Railways
*Used to be a complete defence by applying the qualification of last opportunity rule: March v Stramare
Now is not a complete defence, apportionment under s9 of Law Reform (Miscellaneous Provisions)
Act 1965. If the plaintiff and the defendant are both negligent then there can be no 100%
reduction in damages available: Wynbergen v Hoyts Corp
Any apportionment will take account of the respective fault of the parties and the degree of each
partys departure from the standard of the reasonable person: Pennington v Norris
However, now claims can be defeated under s 5S of the CLA if fair and equitable.
*Contributory negligence remains the only basis on which an plaintiff will not be fully compensated for his
loss.
In other cases, the plaintiff receives all or nothing.
MACA 1999, s 138(2), contributory negligence is awarded
Intoxicated passenger
Voluntary passenger with intoxicated driver
Not wearing a seat belt
Not wearing a protective helmet
CLA s 5R - 5T: contributory negligence
s 5R: standard of contributory negligence: a reasonable person in the position of the plaintiff knew or
ought to have known the risk
s 5S: claims can be defeated as a 100% reduction of damages.
s 5T: contributory negligence-claims under the Compensation to Relatives Act available, however,
damages will be reduced proportionately.
CLA s 30(3): nervous shock claim
A nervous shock claim by a person who sees another person killed, injured, or put in peril is also to be
reduced by the contributory negligence of the victim.

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

Doctrine of alternative danger

If the negligence of the defendant puts the plaintiff in a position of


imminent personal danger, conduct by the plaintiff which in fact operates to
produce harm, but which is nevertheless reasonable in the agony of the
moment, is not likely to amount to contributory negligence
Answer to be found by weighing the degree of inconvenience to which
he would be subjected against the risk taken in attempt to escape it
Did the plaintiff behave reasonably in the dilemma in which the defendant
had negligently placed him or her

Caterson v Commissioner for Railways (1973)


MOVING TRAIN
Principle of Law: At common law, contributory negligence is a
complete defence to a claim founded on negligence. Contributory negligence
is the failure of a person to take reasonable care for his or her own
safety. However, it is a question of fact whether, in response to a situation of

danger or inconvenience created by the defendant's negligence, the


plaintiff has been guilty of contributory negligence.
Facts

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

Where a plaintiff has by reason of the negligence of the defendant been so


placed that he can only escape from inconvenience by taking a risk, the
question whether his action in taking the risk is unreasonable is to be
answered by weighing the degree of inconvenience to which he will be
subjected to the risk he takes in order to try and escape from it
o
The jury had to weigh the inconvenience which the appellant would suffer if
he remained on the train against the risk of leaving a train which moving at
the speed at which they considered it was travelling. They also had to
consider the question whether the appellant failed to take reasonable care
for his own safety by leaving the train instead of pulling the communication
cord, assuming one had been provided

Bearing all the circumstances in mind it is impossible to conclude that the


jury was bound to find that the appellant's injuries were caused or
contributed to by any negligence on his own part

Appeal allowed

Motor Accidents Compensation Act 1999 (NSW) s 138


Civil Liability Act 2002 (NSW) ss 5R, 47-50
Doubleday v Kelly [200S] - TRAMPOLINE
Principle of Law: In the context of s SF (meaning of "obvious risk") and
s SR (standard of contributory negligence) of the Civil Liability Act 2002
(NSW), it is a relevant consideration that the person who has suffered harm is
a child.
Facts

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:

In upholding an award of damages for negligence in respect of this


accident, the NSW CA rejected the defendant's contention that the

b)

plaintiff had been guilty of contributory negligence by getting on the


trampoline wearing roller skates
Court agreed with the primary judge that this issue was to be
determined by reference to the standard of care required of a
reasonable child aged 7, not the standard of care required of a
reasonable adult
In this regard, sSR(2)(a) of the CLA makes no change in the
common law
At paragraph 26, Bryson JA observed: "The characteristics of a
reasonable person in the position of the person who suffered harm
include the characteristics of being a child of seven years"
Similarly, whether a risk is an "obvious risk" within the meaning of
sSF(1) of the CLA requires taking into account the circumstances of the
plaintiff being a child aged 7
In the present case, a reasonable child aged 7 would not have regarded
the trampoline as an obvious risk even though a reasonable adult might
have so regarded it

Common law: contributory negligence as a complete


defence

Butterfield v Forrester (1809) ROAD POLE

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."

Apportionment legislation and the principle of


comparative fault; 'just and equitable' reduction in
the amount of the plaintiff's damages

Lord Porter in Stapley v Gypsum Mines Ltd [1953] AC 663 at


677: "[The apportionment legislation] enables the court (be it
judge or jury) to seek less strenuously to find some ground for
holding the plaintiff free from blame or for reaching the conclusion
that his negligence played no part in the ensuing accident
inasmuch as owing to the change in the law the blame can
now be apportioned equitably between the two parties"

The extent of the reduction in any particular case depends


upon comparing the degree to which the two parties respectively fell
below the standard of care expected of each - their comparative culpability
In consequence there can be no standard percentage by which damages
are to be reduced
"Damage" is universally defined to include the loss of life and

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

Law Reform (Miscellaneous Provisions) Act 1965


(NSW) ss 8,9
-

Law Reform (Misc Provisions) Act 1965


o Under the common law, contributory negligence was a
complete defence: Butterfield v Forrester
o The LRMPA enabled a more flexible approach:
responsibility may not be apportioned between P and D
o Where contributory negligence is found, the court is to
reduce the damages awarded to P in such proportion as it
considers just and equitable: LRMPA, s 9(1)

s9(1) where a person suffers damagepartly of his own fault and


partly the fault of any other persona claimshall not be
defeatedbut the damages recoverableshall be reduced to such
extent as the court thinks just and equitable having regard to the
claimants share in the responsibility for the damage

Pennington v Norris (1956) - LANE CROSS


Calculating apportionment:
Pennington v Norris: P hit by Ds car when crossing road at night. Trial:
reduced by 50%. HC: reduced by 20%.
Leg does not say role of court compare P/D negligence or just Ps
neg.
Held: 1) compare parties actions/responsibilities; 2) compare parties
departure from SOC of reasonable man, not moral blameworthiness.
Principle of Law: Under the apportionment leg in each Aus State/Territory, the
damages recoverable by a plaintiff guilty of contributory negligence
shall be reduced by such extent as the court considers "just and equitable"
having regard to the comparative degree to which the conduct of the plaintiff
and the defendant departed from the standard of care of the reasonable
person.
Apportionament of liability
The act intends to give judge wide discretion with apportionament
- Trial jusge stated concurrent fault
Facts

This is an appeal from the Supreme Court of Tasmania. The appellant was

the plaintiff in an action in which he claimed damages for personal injuries


sustained when he (Pennington) was struck by a motor car driven by the
respondent (Norris). Plaintiff crossed lanes and caused accident.
His Honour found that the damage had been caused by negligent conduct on the
part of both parties and that each equally fault
o He reduced the plaintiff's damages by half

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

The plaintiff's conduct was ex hypothesi careless and unreasonable but,


after all, it was the sort of thing that is very commonly done: he simply did
not look when a reasonably careful man would have looked
o
The fact that his conduct did not endanger the defendant or anybody
else is a material consideration

A fair and reasonable allocation of responsibility for the damage


done is to attribute it, as to 80% the defendant and 20% the plaintiff
This case = just and equitable apportionment it affirmed process of
apportionment

Appeal allowed

Wynbergen v Hoyts Corporation (1997) WET FLOOR


Principle of Law: Where the court has determined that the fault of both plaintiff
and defendant caused the damage, it cannot be "just and equitable" under
the terms of the apportionment legislation to attribute responsibility entirely
to the plaintiff.
Facts:

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

seems the jury answered the questions:


Was D negligent in failing to provide a safe system of work? Yes
Was P negligent by failing to take care of own safety? Yes, 100%
What is the assessment of damages arising out of the defendant's
negligence? $38

Referred to Law Reform (Miscellaneous Provisions) Act 1965 (NSW) s10


No doubt the making of the apportionment which the legislation requires
involves comparison of the culpability of the parties, i.e. the degree to

which each has departed from the standard of what is


reasonable, but that is not the only element to be considered
Regard must also be given to the "relative importance" of the acts of
the parties causing the damage and it is the "whole conduct" of each
negligent party in relation to the circumstances of the accident which
must be subjected to comparative examination"
Apportioning 100% responsibility to the plaintiff is a step which
apportionment legislation in the form under consideration here does not
permit. That is not to deny the importance of considering whose fault
caused or contributed the damage; indeed it is to emphasis the
importance of that examination.
There may be cases in which a defendant may be shown to have failed to
exercise reasonable care for the plaintiff, but the plaintiff is, in all the
circumstances, judged to have been the sole author of the misfortune of
which that plaintiff complains
But that is to conclude that the defendant's want of reasonable care was
not a cause of the plaintiff's damage; it is to deny that the fault of both
plaintiff and defendant contributed to that damage
Answers to q2 and 3 are inconsistent
Appeal allowed. New trial ordered

Civil Liability Act 2002(NSW) s 5S


-

In determing 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
Zanner v Zanner
o D was 11 year old boy, P was his mom
o P allowed D to drive family car into the garage
o Ds foot had slipped and car hit the back wall of the garage
o P was guilty of contributory negligence
o However NSW court of appeal was not ready to accept P accept 100% did not apply s 5S (80% CN was assessment)
5S only come into play in exceptionally unusual circumstances

d)

Imputed contributory negligence contributatory


negligence of others
In some circumstances the defendant may plead as a partial defence
not only the negligence of the plaintiff but also the negligence of a third
party for whose actions the plaintiff is vicariously responsible
This reduces plaintiff's damages in such same way as if plaintiff had
personally failed to take due care for his or her own safety
However only circumstances in which the common law continues to
impute contrib. negligence is that in which the plaintiff would have
been vicariously liable for the conduct of another

Oliver v Birmingham & Midland Motor Omnibus Co


[1933] 1 KB 35
-

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)

Law Reform (Miscellaneous Provisions) Act 196S


(NSW) s 13
Civil Liability Act 2002 (NSW) ss 51, 30(3)
CLA s 30(3): nervous shock claim
A nervous shock claim by a person who sees another person killed, injured, or put in peril is also to be
reduced by the contributory negligence of the victim.

Waverley Council v Ferreira (2005) Aus Torts Reports


81-818; [2005] NSWCA 418
-

Boy climbed up on skylight and fell through and died


Father claimed for damages, and the D relied on contributory negligence
Doubleday v Kelly approved boy was 12 in this case and would not have
perceived the risk associated with climibing on roof and sitting on skylight
Damages recoverable by the father were not reduced on account of any
contributory negligence on part of his deceased son
o CLA s 30(3)

Plaintiff's unlawful conduct

No damages to P if P engaged in serious offence and conduct contributed


materially to risk: s54
Serious offence defined as punishable by imprisonment for 6 months or
more: s54(3)

Henwood v The Municipal Tramways Trust (1938)

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?

Principle of Law: There is no general principle that a person injured at a time


when he or she is breaking some provision of the law is, on that account,
precluded from recovering damages in negligence.
Facts

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

standards. Negligence was denied, contributory negligence on the part


of the deceased was alleged
1906 By-law made by Trust: "No passenger shall project or lean his
head or other portion of his body or limbs out of any window in any
tram, or outside the barrier on the off-side of the open portion of an
tram"
The trial judge determined the case upon the existence and the
breach by the deceased of the by-law prohibiting leaning
outside the barrier on the off side of the tram afforded "a
conclusive answer to the claim in any form in which it could be
presented"

Held

There is no general principle of English law that a person who is


engaged in some unlawful act is disabled from complaining of injury
done to him by other persons, either deliberately or accidentally. Other
persons still owe him a duty to take care, the extent of that duty being
determined by the circumstances of the case which create the duty
o Hawshaw and Shaw
Thus it cannot be held that there is any principle which makes it
impossible for a defendant to be liable for injury brought about by his
negligence simply because the plaintiff at the relevant time was
breaking some provision of the law
Is the prohibition contained in the by-law is imposed as a duty for the
protection for the trust or really as a matter of policy for the protection
generally of the travelling public?
The manifest purpose of the by-law is to prohibit acts that are or are
regarded as dangerous or careless acts on the part of passengers. It is a
punitive provision. It does not in so many words relieve or purport to
relieve, and perhaps could not directly relive, the tramways trust of the
consequences of its own negligent or wrongful acts. nor does it deprive
passengers of their civil rights against the trust in case of a breach of its
duty to exercise care and forethought for securing their safety
All that can be inferred from the terms of the by-law is that it prohibits
certain acts and provides a specific penalty. It no doubt creates a duty
but not a duty upon which the trust can found any right of action or any
conclusive defence for breach of an duty which it owed to the deceased
If the immediate cause of the injury is the unlawful act of P, he
cannot recover; but if the unlawful act does no more than create
a prior state of affairs upon which the defendant's negligence
operates, he may recover
In the present case the act constituting the breach of the by-law is not
only an indispensable condition of the resulting injury, but it is the final
act which produces it. The tram-car is rapidly moving with the posts
alongside, and the passenger in that condition by leaning over
completes the conditions necessary to cause the injury
Breach of the by-law by the deceased does not disable the plaintiff from
recovering in respect of his death
In every case the question must be whether it is part of the purpose of
the law against which the plaintiff has offended to disentitle a person
doing the prohibited act from complaining of the other party's negligent
or default, without which his own act would not have resulted in injury
There is no rule denying to a person who is doing an unlawful thing the
protection of the general law imposing others duties of care for his
safety
The true inquiry is whether it is the intention of the statute penalizing
the particular conduct to affect civil responsibility. In the present case
such an intention appears to be absent

Appeal allowed. Case remitted to Napier j.

Gala v Preston (1991)

No a priori reason why illegalityshould automatically negate the


existence of a Duty
P and D in joint enterprise do not owe DOC to each other.

Principle of Law: Public policy considerations may negative the existence of a


duty of care as between persons committing a criminal act.
Held

The fact that a joint enterprise is carried on illegally in breach of safety


regulations requiring a particular precaution to be taken should not preclude
the existence of a relevant common law duty of care on the part of one
participant to another unless circumstances of the parties' relationship,
including the nature and incidence of the enterprise, are such as to make it
unreasonable to fix a participant wit a duty of care
o
There is no a priori reason why the illegality of a particular enterprise or
activity should automatically negate the existence of a duty of care which
might otherwise arise from the relationship which subsists between the
parties

Civil Liability Act 2002 (NSW) ss 51, 54, 54A


Self-defence
Civil Liability Act 2002 (NSW) ss 51-53

No liability for acts in self-defence where responding to unlawful conduct:


s52
Self defence is where: s52(2)
(a) to defend himself or herself or another person,
(b) to prevent or terminate unlawful deprivation liberty
(c) to protect property
(d) to prevent criminal trespass to land or to remove a person committing
criminal trespass,
and the conduct is a reasonable response in the circumstances as he or she
perceives them.
Does not apply if using force, involving infliction of death, only to protect
property or prevent criminal trespass or remove trespasser: s52(3)
No damages even conduct is not a reasonable response in circumstances
unless: s53
o Circumstances exceptional
o Failure to award damages would be harsh and unjust

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

Russell v Edwards (2006) 65 NSWLR 373 - New South


Wales Court of Appeal
Principle of Law: Section 50 of the CLA provides a complete defence in a
negligence action to recover damages for death, personal injury or
property damage "when it is established that the person whose death, injury
or damage is the subject of the proceedings . was at the time of the
act or omission that caused the death, injury or damage intoxicated to
the extent that the person's incapacity to exercise reasonable care and skill
was impaired." In such a case, no damages are to be awarded unless the court
is satisfied "that the death, injury or damage to property . is likely to have
occurred even if the person had not been intoxicated" (s50(2)).
Facts

Plaintiff, Ashley Russell, aged 16 at the relevant time, was a guest at a


party at the home of the defendants, Mr and Mrs Edwards. The party,
attended by about 30 people, was to celebrate the 16th birthday of the

defendant's son. The defendants were aware that a large amount of


alcohol was being consumed by the young party guests
About 10.00pm, Mr Edwards told the guests to move into the pool area,

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

The language of s50(1) required the determination of a single act or


omission that caused the plaintiff's injury as a matter of construction,
it must be read as referring to the act or omission that directly caused the death,
injury or damage
o The direct cause of the plaintiff's injury was his intoxication
o The plaintiff was entitled to no damages in respect of any liability
MrjMrs Edwards might have had to him
550 of the CLA as interpreted in this case elevated contributory negligence
to a complete defence when the relevant conduct of the plaintiff consists of
self-induced intoxication. Return to the CL rule in Butterfield v Forrester which
was abolished by the Law Reform (Miscellaneous Provisions) Act 1965 (N5

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