Defences to Negligence- Contributory Negligence PDF

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summary of defence cases in topic 11, LAWS1012...

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Def encest oNegl i gence:Cont r i but or yNegl i gence. Contributory Negligence- Basic Tests  Contributory negligence arises where the plaintiff fails to meet the standard of reasonable care for their own safety and in doing so, contributes to their injury suffered. Commissioner of Railways v  It is not necessary for the plaintiff to owe the defendant a duty of care, or for the plaintiff’s negligent conduct to contribute to the cause of the accident in any way. Ruprecht (1979) 142 CLR 563  Denning LJ stated, ‘The real question is not whether the plaintiff was neglecting some legal duty, but whether he was acting as a reasonable man Davies v Swan Motor Co (Swansea) Ltd [1949] 2 KB and with reasonable care’.  In standing on the step of truck, against his employer’s wishes, the plaintiff had exposed himself to an unreasonable risk of injury. This constituted 291 contributory negligence, even though the plaintiff’s conduct did not pose a risk of injury to anyone other than himself. Froom v Butcher [1976] 1 QB  Reaffirmed the above case in stating that the issue in deciding contributory negligence is whether the plaintiff’s conduct contributed to the injury 286 or loss suffered by the plaintiff.  Here, court decided that it was irrelevant that the plaintiff did not negligently contribute to the accident by not wearing a seatbelt. However, his negligence in not wearing a seatbelt contributed to his injuries- constituting a departure from the standard of reasonable care expected of a person. (Damages were reduced by 15% to take into account the plaintiff’s failure to wear a seatbelt).  Introduced apportionment, replacing contributory negligence to be used as a complete defence. Law Reform (Miscellaneous Provisions) Act 1965 (NSW)  A finding of contributory negligence reduces the plaintiff’s damages, ‘to the extent the court considers just and equitable having regard to the claimant’s share in the responsibility of damage’. The Standard of Reasonable Care Applied to the Plaintiff’s Conduct- An Objective Standard Joslyn v Berriman (2002) 214 CLR 552  Whether a plaintiff is guilty of contributory negligence is a question of fact to be determined objectively.  It is acceptable for courts to apply a lower standard of care on plaintiffs owed to themselves than defendant owed to the plaintiffs- as it Caterson v Commissioner of Railways (1973) 128 CLR 99 reflects the view that it is usual for plaintiffs to take less care for themselves than for others. Civil Liability Act 2002 (NSW) s 5R  However to counter the above two cases, under the CLA the same objective standard applicable to defendants is to be used in determining whether the plaintiff is guilty of contributory negligence. In particular,  S5R (2a): The standard of care required of the person who suffered harm is that of a reasonable person in the position of that person’  S5R (2b): The matter is to be determined on the basis of what that person knew or ought to have known at that time.  Especially in employment cases, the courts should consider the plaintiff’s conduct in the context f the situation of the risk created by the defendant’s negligence. McLean v Tedman  An employee’s failure to take reasonable care for himself may be due to his inattention/inadvertence OR due to the contributory negligence of the employer. E (1984) 155 CLR 306  Thus, in considering whether an employer has failed to provide a safe place or system of work, the court takes into account the fact that the M employee’s conduct takes place in a situation of risk created by the employer’s negligence. P Commissioner of  An employee is not necessarily contributorily negligent if they inadvertently/inattentively expose themselves to a risk of injury. L Railways v Ruprecht  Not every failure to be careful is regarded as negligence on part of plaintiff. Sometimes the plaintiff’s failure to take care for their own safety is regarded as being caused by the defendant’s negligence rather than the plaintiff’s fault. O (1979) 142 CLR 563  In this case, the court found that the plaintiff’s injuries were borne out of his employment which involved a risk of danger to which the plaintiff Y had become habituated, as opposed to his failure to take reasonable care for his own safety. M  However, this case should not be taken as establishing that ‘mere inadvertence or inattention’ can never constitute contributory negligence. If E the plaintiff’s inattention does not influence anything the defendant has done or the nature of the employment, then it probably does constitute contributory negligence. N  An employee may even not be contributorily negligent if they knowingly expose themselves to a risk of injury. T Commissioner for  ‘That the plaintiff knew or ought to have known that what he was doing was dangerous does not necessarily establish that he was guilty of a lack Railways v Halley of reasonable care for his own safety in the circumstances of his employment’. (1978) 20 ALR 409  Court held that even though the plaintiff willingly exposed himself to a risk of harm, he was not contributorily negligent because he did not know that such exposure to risk was not a part of his employment. Coca-Cola Amatil (SA)  Similar to the above case, court held that although the plaintiffs knew that what they were doing was dangerous, they were also not Ltd v Petineris (1996) contributorily negligent because they believed that such duties of their work required them to perform those dangerous tasks. 66 SASR 577 Apportionment  The following cases below have been important in serving as guides to assess the percentage by which the plaintiff’s damages are to be reduced for contributory negligence. Pennington v Norris (1956) 96 CLR 10  In order to assess the percentage by which the plaintiff’s damages are to be reduced for contributory negligence, the court compares the culpability of the parties.  Culpability here was defined as, ‘degree of departure from the standard of care of the reasonable man’.  For example, if the plaintiff’s own negligence endangered only himself and not anyone else, then the plaintiff is less culpable than the defendant who’s negligence did endanger someone else, namely, the plaintiff. Podrebersek v Australian Iron & Steel  High Court made it clear that the court should also consider, ‘the relevant importance of the acts of the parties in causing the damage’ Pty Ltd (1985) 59 ALR 529  Held it was not possible under the apportionment legislation to reduce the plaintiff’s damages by 100%, as to do so would be Wynbergen v The Hoyts Corporation (1997) 149 ALR 25 inconsistent with the above case plus with the finding that both the plaintiff and defendant had, by their negligence, caused the plaintiff’s injuries. Civil Liability Act s5S  Abolished the principle above, the court can reduce a plaintiff’s damages by 100% if it is just and equitable to do so. Intoxication  Intoxication of the plaintiff is relevant to contributory negligence if it was self-induced, contributed causally to the harm suffered and impaired the injured person’s capacity to exercise reasonable care and skill.  Under statutory law, there is a presumption of contributory negligence in situations where the plaintiff is intoxicated or relies on a defendant who is intoxicated.  Unless that presumption is rebutted, a minimum reduction to the plaintiff’s damages must be applied. Where the negligence involves a motor accident + alcohol, higher minimums are applied. These legislative requirements have abolished the past discretion of courts. Civil Liability Act (2002) NSW s50 –‘No  S50(2) operates to defeat a plaintiff’s claim if the plaintiff was intoxicated at the time of injury and is unable to prove that the harm would have been likely even if sober. Recovery where Person Intoxicated’.  S50(3) states that even if the injury is likely to have occurred even if the plaintiff had not been intoxicated, there is still to remain a presumption of contributory negligence unless the court is satisfied that such intoxication did not in any way cause the injury (there was no causal connection between the intoxication and the injury).  S50(4) states that when there is that presumption of contributory negligence, damages are to be reduced by at least 25%.  S50(5) states reduction/denial of damages on basis of intoxicated plaintiff does not apply where the intoxication was involuntary.  The standard of proof set here by statute is incredibly high. Russell v Edwards [2006] NSWCA 19  This case saw the application of s50(2) where the courts stated that even though the defendants, by permitting young people to consume alcohol and then swim unsupervised was a negligent act, the plaintiff’s claim was defeated as he was unable to prove that the injury would have occurred even if sober....