Defences IN Negligence PDF

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Defences in negligence – These are: contributory negligence; voluntary assumption of risk; and unlawful conduct. Contributory negligence: 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 defence of contributory negligence is established if the defendant proves that the plaintiff is guilty of conduct which amounts to a failure to take care for his/her own safety. To plead the defence, the D bears the onus of proof and must prove the requisite standard of care that has been breached by P. Section 5R provides that: 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. 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 determined on the basis of what that person knew or ought to have known at the time. Section 5S: 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. In such a situation where section 5S is pleaded successfully, it will follow then that contributory negligence becomes a complete defence. Cases for section 5S: Zanner v Zanner (2010) – insurance claim case, where the court found that the claimant’s contributory negligence was 80% (the mother). The finding of more than 90% contributory negligence is very rare and would require that “the risk created by the defendant is patently obvious and could have been avoided by the exercise of reasonable care on the plaintiff’s part”.

Davis v Swift (2014) – Blameless accident cases: This is where the driver of the car seeks to argue that they were not to blame for the accident and that the plaintiff carries the total blame. In this case appellant (plaintiff) was injured when a motor vehicle driven by the

respondent (defendant) ran over her foot. It was noted, that the reduction of damages for contributory negligence be determined by assessing the extent to which the plaintiff departed from the standard of care he or she was required to observe in the interests of his or her own safety. The plaintiff’s accident has in a way to be seen as the sole cause of the accident. The Court noted that the appellant's behaviour involved a significant departure from the standard of care expected. Her damages were reduced by 80%. T and X Company Pty Ltd v Chivas (2014) - Driver of appellant taxi company fatally injured the son of the respondent who was jaywalking. Respondent sued for nervous shock and the issue of contributory negligence was raised. Trial court reduced damages by 40%. Taxi operator appealed. On appeal NSW Supreme Court, noted that according proper weight to the unpredictable step taken by the deceased in seeking to cross the road against a red pedestrian light and in the face of oncoming traffic required a far higher level of contributory negligence than that found by the trial judge reduces damages by 75%. The Idiosyncrasies of the Plaintiff: case of Allen v Chadwick (2007) – drunk driver accident where she drove in the car, she was the first driver, after a break she had to be a passenger in the car. She was not wearing a seatbelt because of the erratic driving of the driver when the accident happened that left her being paraplegic. We need to look at the facts of the case every time: Was in a strange place and stranded on the outskirts of a remote country town in a darkened area, the immediate surrounds were shrubbery and trees. It was dark and an uncertain distance from the township in the early hours of the morning. The High Court accepted that the risk of harm from a stranger in those circumstances was worse than travelling in the vehicle of an intoxicated driver. In the other she had little choice, but to let the drunk driver take over the driving. The High Court reinstated the District Court’s findings of 25% contributory negligence for the plaintiff’s failure to fasten a seatbelt but refused to attribute contributory negligence for accepting a lift with an intoxicated driver. HC refused to apportion any blame to the plaintiff and the argument in her favour was that she had little choice in the circumstances of the case. Grills v Leighton Contractors Pty Limited (2015) - Mr Grills, (the plaintiff) was seriously injured on 25 February 2007 in the course of his duties as a senior constable with the Police Highway Patrol. Whilst riding his police motorcycle at between 110 and 115 km/h, he collided with a boom gate. The boom gate had been lowered across the Eastern Distributor (ED) by a motorway controller who was employed by the first defendant, Leighton Contractors Pty Ltd (Leighton), the operator of the ED.

It was found that evidence did not support the contention that the task was not so urgent or that the plaintiff was negligent for driving at the speed he did. The court found that the plaintiff had to undertake an urgent task and he was entitled to assume the road would be clear for him. Therefore, the Court of Appeal reduced the finding of contributory negligence to zero. Contributory Negligence in the Workplace – Difficult to prove! McLean v Tedman (1984) garbage man running across the street to put garbage in the truck (garbage truck did not drive on either side, just drove one side and men ran to and from the truck). On one of these runs, he got hit by a car. P alleged that the employer had been negligent in not providing a safer system of work. Employer argued that the men would not have adopted it anyway. It was held that the P was not guilty of contributory negligence and that the employer had been negligent in failing to provide a safe system of work. In considering whether there was contributory negligence by an employee in a case in which the employer has failed to provide a safe system of work, the circumstances and conditions in which he had to do his work must be taken into account.

Voluntary assumption of risk - Where P voluntarily assumes the risk of a particular situation, she/he may not be able to maintain action against D in torts in relation to that situation. In common law these principles are usually referred to as volenti non fit injuria. The are three important elements: (usually difficult to prove) 1. P knew or perceived the danger 2. P must have fully appreciated the risk of injury created by the danger 3. P must have voluntarily accepted the risk Case: Canterbury Municipal Council v Taylor: a cyclist was warming up on the cycle track while touch football players were concluding a match on the playing field. A touch footballer stepped back onto the track and the cyclist collided with him. The footballer was killed, and the cyclist suffered physical and psychological injuries. He sued the council and established negligence in management of the dual-use facility. The cyclist knew of and appreciated the dual use of the park. In dealing with this risk, it is not enough for the p to know off and perceive, the P has must also accepted this risk (this is the one that is usually difficult to prove). Carey v Lake Macquarie City Council and Leyden v Caboolture Shire Council – obvious risk Under the CLA, there are two types of risks: obvious risks and inherent risks.

Section 5F of the CLA deals with the issue of obvious risk. It provides as follows: (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. 5G Injured persons presumed to be aware of obvious risks (1) In proceedings relating to 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.

The defendant does not owe duty of care, to warn the plaintiff on obvious risk when is established. 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. (3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection. Cases on obvious risk: Collins v Clarence Valley Council (2015) – the plaintiff was injured when she somersaulted over the railings of a bridge at Lanitza in New South Wales and she sued the Council for negligence. She said she could the larger gaps and the wheels can get caught, she suffered injuries – the only sign was reduce speed. The court found in this case the relevant risk was obvious to a reasonable person in the plaintiff’s position having regard to the number of gaps between the planks and the possibility of a wheel being jammed when the bicycle was nearing the railing leading to a rider falling over the low guardrails. Liverpool Catholic Club v Moor - the plaintiff appellant suffered serious injury at a sports complex that contained an ice-skating rink. He rented ice-skating boots and proceed to the short flight of stairs. He slipped and fell backwards; he sued the Club. It was found in this case, that wearing these boots on the stairs constituted obvious risk and the defendant should not have warn the plaintiff. Goode v Angland (2016) – riding horses, the Court found that there was no liability for harm suffered from the obvious risk of the dangerous recreational activates. Sharp v Parramatta City Council [2015] NSWCA 260 - considered the liability of a council where a motorist suffered injury as a consequence of the unlawful action of a third party. The Court said that a “risk warning” is a warning with respect to the existence of risk. It does not need to instruct as to all the steps necessary to avoid the risk. Use of the diving platform

carried a general risk of injury and the warning sign affixed to the pillar directed patrons to the risk of using the platform to jump or dive into the pool. The Court was also satisfied that the warning sign was reasonably likely to result in patrons being warned. It wasn’t relevant whether the plaintiff received or understood the warning. Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219

Inherent Risk: CLA S5I - risk of something occurring that cannot be avoided by the exercise of reasonable care and skill. Sort of risk that cannot be avoided even taking reasonable care. In order for there to be no liability for the materialisation of an inherent risk, it must be proven that the risk could not be avoided by the exercise of reasonable care and skill. Clearly if the defendant can avoid the risk with the exercise of reasonable care, the risk is not inherent.

Case: Sparks v Hobson; Gray v Hobson (2018) - The respondent underwent an operation for a genetic disorder, which was performed by the appellants, a surgeon and an anaesthesiologist. As a result of the operation, he became a paraplegic. The anaesthesiologist relied on, inter alia, s 5 I of the Act to avoid liability. The majority of the Court found that s 5 I did not provide a defence. The risk which accompanied the surgery was the neurological collapse of the spinal column. This would not have occurred if the operation had been terminated earlier. The operation would have been terminated had reasonable care and skill been exercised. Accordingly, it could not be said that the risk was an “inherent risk”.

The Nominal Defendant v Buck Cooper (2017)- The respondent was injured when the motorcycle he was riding collided with another motorcycle ridden by his friend, Mr Lamont. The motorcycles were unregistered and uninsured. The respondent and his friend had been intoxicated and sleep-deprived at the time of the collision. The plea that the accident involved an inherent risk was rejected. The court held that the evidence did not permit a finding that Mr Lamont was incapable of exercising reasonable care and skill to avoid the risk of the motorbikes colliding, i.e., by riding on the correct side of the road, not exceeding the speed limit, and keeping a proper lookout. Paul v Cooke [2013] NSWCA 311 Wallace v Kam [2013] HCA 19

CLA S5L: No liability for harm suffered from obvious risks of dangerous recreational activity No liability for harm suffered from obvious risks of dangerous recreational activities (1) A person ( "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. (2) This section applies whether or not the plaintiff was aware of the risk.

5K Definitions "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.

Cases: Menz v Wagga Wagga Show Society Inc (2020) - The plaintiff was seriously injured when her horse fell while warming up before competition at the Wagga Wagga Show. It was held that it was appropriate to characterise the harm as the materialisation of the obvious risk of her horse being spooked by some stimulus, and it was not necessary to provide the additional particularity that the noise made by children spooked the horse: The warm-up should not be a separate activity from the competition: But even if it was separated, the warm up was still dangerous. Judgment was entered against the plaintiff.

Holroyd City Council v Zaiter (2014) - A 9-year-old boy suffered a brain injury after he rode his bike down a grassed slope into a concrete drainage channel. Should this recreational activity be dangerous recreational activity? It was found that the presence of the channel was not obvious and would not have been obvious to the respondent until he was at least halfway down the

slope. Second, the risk which materialized was not a normal incident of the dangerous recreational activity. Here is it was found that it was not obvious risk, found in favour of Zaiter.

Illegality

There are generally no legal rights as such between parties that are engaged in committing a crime. Accordingly, where the defendant commits a tort against the plaintiff in the course of committing a crime, the plaintiff may not be able to claim. Section 54 states: (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 Accordingly, where plaintiff was engaged in a conduct which was criminal, if the tort occurred against the plaintiff in the course of such a conduct, then to the extent that the conduct is a serious offence, the plaintiff will not be able to recover damages against the defendant. The defendant can use illegality in this sense....