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DEFENCES - Concise Summary...

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Defences 1) Contributory negligence- partial defence a) Has Mike contributed to his own injury? He has done everything you would expect of an indoor climber? Contributory negligence 

Onus of Proof is on the defendant to show that the plaintiff failed to take precautions that a reasonable person would have taken for their own protection. 1) 5R : Has Sue fallen below the standard of a reasonable person? 5R Standard of 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. 2) Look at 5B1 and 5B2- standard of care. Did he fall below the standard of care?

There is a not an insignificant chance that if Sue did not take reasonable care to protect herself, the damage may not have occurred to the extent that it did. Reasonably foreseeable that he could be harmed as a consequence of failing to take adequate care in hot, dry windy conditions. Did he fall below the standard? Apply calculus of negligence Likely seriousness of harm- a reasonable 10 yr old should know that climbing 3m high is dangerous Social utility of conduct-no social utility in climbing tree Burden of taking precautions- low, he simply does not have to go bushwalking (know when to and when not to walk) 5S Contributory negligence can defeat claim 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. Apportionment legislation (Law Reform (Miscellanous Provisions) Act (NSW) 1965 s.9, 10- if D proves P’S EGLIGENCE CONTRIBUTED TO THE ACCIDNET, THEN THE COURTS MUST REDUCE DAMAGES PROPORTIONATELY TO THE BLAME.

APPORTION LIABILITY (do not say proportion liability, that’s for eco loss) - approption liability between contributing parties in accordance to what is just and equitable. Compare each person’s departure from the standard of care. (Pennignton v Norris). Grace’s departure is much less compared to the departure of the park authority. S9 of Provision Act 1969- apportion liability according to what is just and equitable.

Defence 2- Dangerous and Recreational activity

a) s5k – a recreational activity involves a significant risk of harm. Is this a recreational activity that involves a SIGNIFICANT risk of physical harm? S5L- ASE will not be liable if Mike or Sanjeev were engaged in an obviously dangerous recreational activity -No liability under s5L if P injured by the materialisation of an obvious risk Was the risk obvious? S5H- no duty to warn where the risk is obvious S5F CLA- it has to be an obvious risk to Mike that rock climbing in an indoor rock climbing centre on the equipment might cause him harm. If it is an obvious risk, it is a complete defence.

S5F- is it an obvious risk to a reasonable person than somebody could detect? An individual would not know that safety checks haven’t been made. If it was obvious risk, is it SIGNIFICANTLY DANGEROUS? Fallas v Marlos- states that a significant risk is something between a trivial risk and one that is likely to materialise often. Significant can mean one of two things- a) that it happens often or b) that it is the kind of activity with a catastrophic and quite serious consequence (if you fall the harm is catastrophic). There is a chance it is a significant risk. But if it is NOT an obvious risk, the 5L defence would not succeed. Dangerous activity is narrowly defined ..(In Fallas v Mourlos, the dangerous activity was narrowly defined not simply as kangaroo shooting, but as kangaroo shooting from a car) Does it pose a significant risk? Must consider in surrounding circumstances Fallas v Moulos engages with a key debate that can be applied here. Was the risk that materialised obvious or was the risk of falling itself obvious? Fallas v Mourlos states that it is obvious that people might be negligent, however, GROSS NEGLIGENCE IS NOT OBVIOUS.

d) Was the risk inherent? S5I An inherent risk is one that cannot be avoided. This was clearly avoidable by conducting safety checks.

Intoxication S50(3) There is a presumption under s 50 (3) THAT A PERSON’S INTOXICATION contributed to their harm.

S50(3) If 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, it is to be presumed that the person was contributorily negligent unless the court is satisfied that the person’s intoxication did not contribute in any way to the cause of the death, injury or damage. The safety latch had nothing to do with intoxication. There is no factual link between intoxication and the injury caused by the latch breaking. There is medical evidence to support this.

Defence 3- Risk Warning- 5M S5M(3)- no duty of care for recreational activities where there is a risk warning.

b) Was the warning too general or was it a general risk warning which encompassed the specific risk? Note- there can be a general risk warning- but it must encompass the specific risk. This is displayed in (Belna v Irwin) – gym had a warning about the gym class, not a specific warning about lunge exercises. The risk warning is likely to be perceived as too general

c) Apply objective test- Would a reasonable person in the position of the defendant have seen the risk warning? Defence 4- exclusion clause – s5N S5N(6) – the exclusion clause is applicable as long as it does not exclude a statutorily established requirement or responsibility. “This section does not apply if it is established (on the balance of probabilities) that the harm concerned resulted from a contravention of a provision of a written law of the State or Commonwealth that establishes specific practices or procedures for the protection of personal safety.” Mike has not signed this, he can therefore sue Everest. CONTRACTUAL WAIVER OF DUTY FOR RECREATIONAL ACTIVITIES: CLA s.5N

ILLEGALITY: Common Law (Gala v Preston); Criminals not to be awarded damages CLA s. 54...