Defences and damages - for exam PDF

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Defences to negligence 1. Contributory negligence 2. Voluntary assumption of risk (volenti) 3. Illegality 1. Contributory negligence: - refer to section 44 A failure by a person who suffers harm to exercise reasonable care and skill for his or her own protection - Civil liability act 1936 (SA) s3 Important to remember  Plaintiff's failure to meet standard of care for personal protection  Plaintiff's failure must contribute to the injury (along with the defendant's negligence) (March v Stramare)  It is essential that the plaintiff not only be negligent with respect to their own interests but that negligence must be causally linked with the damage suffered (March v Stramare) Examples: Exposing yourself to a risk o Eg. Berrigan Shire Council v Ballerini and Forestry Commission of NSW [2005] VSCA 159  At common law, there is “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.” Joslyn v Berryman (2003) 214 CLR 552, [16], McHugh J EXAMPLE: Since the plaintiff is contributory negligence, the damages would be reduced by the amount that is ‘just and equitable’ taking into account relative contribution of the plaintiff and the defendant to the harm (s50(3)(a) and (b) CLA) Fixed reductions:  Section 46, 47 and 48 : fixed reduction for intoxication 25% or 50% depending on intoxication level  ss49: Fixed reduction for failure to wear a seatbelt, safety helmet (if on motor cycle or bicycle) or failure to sit in passenger compartment – 25% reduction Examples for not wearing seatbelt - Froom v butcher Caterson v commissioner for Railways - can only escape by taking a risk “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 against the risk that he takes in order to try to escape from it.” Example – plaintiff in bathroom and fell while tryna get out (she was contributory negligent) Sayers v Harlow Urban District Council [1958] 2 ALL ER Intoxication: Plaintiff relies on skill of Intoxicated Driver (CLA)  s47(1) Driver intoxicated and plaintiff knows or ought to know of their intoxication (.08+ s 48) and relies on their care and skill – contributory negligence.  s47(4) Passenger in a car taken to rely on care and skill of driver  s47(3) Damages reduced by 25% where presumption applies  s47(5) If concentration .15 or more or shown to be incapable of exercising control, reduction increased to 50%

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s47(2) Presumption rebutted if  Intoxication did not contribute to the accident  Injured person could not have reasonably avoided the risk Refer: Allen v Chadwick [2015] HCA 47 s48 Evidentiary provision relating to intoxication

2. Volenti: This defence has three elements: 1. The plaintiff must have knowledge of the facts creating the risk (Insurance Commissioner v Joyce (1948) 77 CLR 39) 2. The plaintiff must have understood and appreciated the risk created by the particular facts 3. The plaintiff must have voluntarily undertaken the risk. (Imperial Chemicals v Shatwell) Volenti: obvious risk  s36(1) –(3) ‘Obvious risk’ one that would be obvious to a reasonable person (objective), risks that are patent and common knowledge.  A risk can be obvious even if it is of a low probability  **NOTE s47(6) of CLA provides that defence of volenti is NOT available where assumption or risk arises from the intoxication of another. Only defence of contributory negligence applies If the risk is obvious the CLA provides that the plaintiff knew of, understood and appreciated the risk:  s37(1) Plaintiff taken to be aware of all material risks for purposes of volenti.  s37(1) Plaintiff bears burden of establishing they were not aware of obvious risk  s37(2) Plaintiff ‘aware of a risk’ if aware in a general sense – does not need to know precise details  s38: There is no duty to warn of an obvious risk Inherent risk: 39No liability for materialisation of inherent risk (1) A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk. (2) An inherent risk is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill. (3) This section does not operate to exclude liability in connection with a duty to warn of a risk. Carey v lake Macquarie City Council (2007) Aust Torts Reports 81-874 - the risk presented to cyclists by a bollard positioned on a pathway is an obvious risk - Note: it is not enough that the plaintiff knowing of the risk is sufficient to make a defense (Thomas v Quartmaine). Proof of knowledge is necessary but not sufficient in order to prove that the plaintiff voluntarily agreed to accept the risk. (Carey v Lake) 

3. Illegality s43 Now largely governed by statute. s43 Civil Liability Act 1936 (SA) excludes liability if the court is satisfied:  Beyond reasonable doubt that the injury/loss was sustained whilst the plaintiff was engaged in conduct amounting to an indictable offence, an

DAMAGES: Pecuniary loss: Financial losses including:  Lost earnings  Profits  Losses incurred in restoring damaged property  Replacement of damaged property  Expenses incurred in mitigating loss  Rehabilitation costs  Domestic help  Medical costs Non - pecuniary loss:  Abstract losses that the plaintiff suffers  Identified and limited under section 3 of the civil laibility act 1936 (SA): non-economic loss means— (a) pain and suffering; or (b) loss of amenities of life; or (c) loss of expectation of life; or (d) disfigurement - e.g. badly injured face Special damages: (pre-trial) Special damages are awarded in such cases in respect of monetary loss actually suffered and expenditure actually incurred. Their two characteristics are: (1) that they are assessed only up to the date of verdict, and (2) that they are capable of precise arithmetical calculation or at least of being estimated with a close approximation to accuracy General damages (post-trial) Post-trial expenses, they can’t be approved with precision - imagination  General damages: Post trial expenses and cannot be proved with precision.  Involves a close analysis of all the surrounding facts & circumstances and there is a wide discretion exercised by Judges and juries. Compensatory damages: 1. A plaintiff who has been injured by the negligence of the defendant should be awarded such a sum of money as will, as nearly as possible, put him in the same position as if he had not sustained the injuries 2. Damages for one cause of action must be recovered once and forever, and (in the absence of any statutory exception) must be awarded as a lump sum 3. The court has no concern with the manner in which the plaintiff uses the sum awarded to him 4. The burden lies on the plaintiff to prove the injury or loss Loss of earning capacity Its about capacity, about potential, its about replacing what you might earn over your life time  Earning capacity , focus on the potential to earn  At common law the loss of the chance to exploit an earning capacity is in itself a thing of potential value  Plaintiff must demonstrate the lost capacity 8 determined with respect to the actual circumstances of the plaintiff Civil Liability Act 1936 (SA) s54: Damages for loss of earning capacity

s54. (1) If the injured person was incapacitated for work, damages for loss of earning capacity are not to be awarded in respect of the first week of the incapacity. (2) Total damages for loss of earning capacity (excluding interest awarded on damages for any past loss) are not to exceed the prescribed maximum. NB: Prescribed maximum defined s3  Apply the facts and legal principles Determining lost earning capacity  On the basis on what they would have earned  The cost of working, the cost of living, nature of the job - Norris v Blake [No 2] Factors to consider: - Mann v Ellbourn (1974) 8 SASR 298: Working part time  Part time worker 2/3ds of the time also added the fact that she might have wanted to go back to working as a full-timer  Wynn v NSW Insurance (factors considered: Domestic help, childcare costs, positive contingencies  The accident made her only work for full time for two years  She worked as casual work after that  Sharman v Evans (1977) 138 CLR 563: Marriage, pain and suffering during the ‘lost years’, probable as opposed to speculative loss, home care vs institutionalised care, cannot achieve ‘perfect’ compensation  Severely injured in car accident SUMMARY:  Damages are generally assessed on a once and for all basis (note effect of Supreme Court Act and District Court Act  Damages cover pecuniary and non-pecuniary loss  Special Damages (pre trial)  General Damages (post trial)  Loss of earning capacity: based on the loss of potential not necessarily actual loss  Cap on Damages loss of earning capacity: Civil Liability Act s54  Norris v Blake : provides guidance on how to estimate earning capacity Þ consider those in like professions Þ balancing act  Working part time? Mann v Ellbourn Þ Determine on the basis of the reality that only working part time then adjust slightly to acknowledge fact may return to full time work  Domestic help Þ not a deduction Þ Wynn v NSW Insurance  Childcare costs Þ not a deduction Þ Wynn  Positive considerations such as promotion prospects should be taken into account ÞWynn  Costs of earning living are relevant ie agent's fees Þ Norris  Likelihood of female leaving the workforce Þ not a consideration Þ Wynn  Marriage not a consideration Þ Sharman v Evans  Reasonable not ideal compensation Þ Sharman v Evans  Gratuitous care Þ Van Garvan v Fenton Þ s58 Wrongs Act  No pain and suffering for unconscious patient or the lost years Þ Skelton v Collins  Statutory reduction of 5%...