TORTS LECTURE

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TORTS LECTURE

• DEFENCES IN NEGLIGENCE

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INTRODUCTION FACTORS THAT MAY UNDERMINE PS CLAIM

• The plaintiff's
• pre-existing knowledge about the defendants
  incapacity
• pre-existing knowledge of the risk associated
  with the state of affairs that gave rise to the
  negligence
• failure to take reasonable care of his or her own
  safety
• unlawful conduct

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DEFENCES
Contributory Negligence
Voluntary Assumption of Risk
Diminished standard of care
Unlawful conduct/illegality
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DIMINISHED STANDARD OF CARE

• Insurance Commissioner v Joyce
• the case may be described as involving a
  dispensation from all standards of care, so
  that, there was no breach of duty by the
  defendant...
• Diminished standard of care is technically not
  a defence as such

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THE NATURE OF CONTRIBUTORY NEGLIGENCE Joslyn v
Berryman

• (Per (McHugh J) At common law, a plaintiff is
  guilty of 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.
  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 test of contributory negligence is an
  objective one

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Contributory Negligence The nature of the Ps
conduct

• The defence is established if the defendant
  proves the plaintiff guilty of conduct which
  amounts to a failure to take care for his/her own
  safety
• To plead the defence, D bears the onus of proof
  and must prove the requisite standard of care
  that has been breached by P.

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The Substance of Apportionment Legislation (Law
Reform (Miscellaneous) Act 1965 (NSW) s10

• Where any person suffers damage as the result
  partly of his/her own fault and partly of the
  fault of any other persons, a claim in respect of
  that damage shall not be defeated by reason of
  the fault of the person suffering damage, but
  damages recoverable in respect thereof shall be
  reduced to such extent as the court thinks just
  and equitable having regard to the claimants
  share in the responsibility for the damage

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CIVIL LIABILITY ACT Part 8

• 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.
• 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.

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Voluntary Assumption of Risk

• In general where P voluntarily assumes the risk
  of a particular situation, she/he may not be able
  to maintain an action against D for negligence in
  relation to that situation
• The elements
• P must have perceived the danger
• P must have fully appreciated the danger/known
• P must have voluntarily accepted the risk
• What constitutes acceptance of the risk?

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RISKS UNDER THE CIVIL LIABILITY ACT
RISKS
OBVIOUS
INHERENT
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VAR IN THE CIVIL LIABILITY ACT (Division 4, S5F)

• (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.
• S 5I(2) An inherent risk is a risk of something
  occurring that cannot be avoided by the exercise
  of reasonable care and skill.

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Qualifications

• Under s5G(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

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• under s5H(1) the defendant does not owe a duty
  of care to another person ( "the plaintiff" ) to
  warn of an obvious risk to the plaintiff The
  defendant retains the duty to warn of obvious
  risks in the following cases
• 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

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Recreational Activities Obvious Risks

• As a matter of law, there is a point at which
  those who indulge in pleasurable but risky
  pastimes must take personal responsibility for
  what they do. That point is reached when the
  risks are so well known and obvious that it can
  reasonably be assumed that the individuals
  concerned will take reasonable care for their
  safety (Prast v The Town of Cottesloe Ipp J )

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CLA

• S5L provides that 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
• s5L(2) specifically stipulates that the s5L(1)
  exclusion of liability for harm suffered as a
  result of obvious risk associated with
  recreational activities applies whether or not
  the plaintiff was aware of the risk.

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INHERENT RISK

• S5I(1) A person is not liable in negligence for
  harm suffered by another person as a result of
  the materialisation of an inherent risk.

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PRESUMPTIONS OF AWARENESS OF OBVIOUS RISK (s5G)

• (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.

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NO PROACTIVE DUTY TO WARN OF RISKS

• Under the legislation D has no duty to warn P of
  an obvious risks except where
• (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.

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RISKS IN RECREATIONAL ACTIVITIES (CLA DIVISION 5)

• S5K "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.
• S5L No liability for harm suffered from obvious
  risks of dangerous recreational activities

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Case Law on Risks in Recreational Activities)

• Fallas v Mourlas 2006 NSWCA 32
• Falvo v Australian Oztag Sports Association
  Anor 2006 Aust Tort Reports 81-831 (2 March
  2006)

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THE THREE RELATED DEFENCES

• Diminished standard of care
• Contributory negligence
• Voluntary assumption of risk

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ILLEGALITY

• The traditional Common Law position on illegality
  is usually summed up in the Latin maxim ex turpi
  causa non oritur action which means that no
  cause of action may be founded on an illegal act

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Illegality

• There is no general principle of law that a
  person who is engaged in some unlawful act is to
  be disabled from complaining of injury done to
  him by other persons, either deliberately or
  accidentally. He does not become a caput lupinum
  (an outlaw) ( per Latham CJ Henwood v Municipal
  Tramsways Trust

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The Test to Disentitle the Defence

• In each case the question must be whether it is
  part of the purpose of the law against which the
  the P has offended to disentitle a person doing
  the prohibited act from complaining of the other
  partys act or default
• Italiano v Barbaro (injury sustained while
  parties were in the process of looking for a
  spot to stage accident)

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Illegality under the Civil Liability Act

• Section 54
• (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

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The Scope of the section

• The section applies whether or not a person
  whose conduct is alleged to constitute an offence
  has been, will be or is capable of being
  proceeded against or convicted of any offence
  concerned

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Self-Defence against Unlawful conduct (Part 7
CLA)

• S52The legislation provides immunity to the
  defendant who causes damage to the plaintiff
  while acting in self-defence in circumstances
  where the plaintiffs conduct that provoked the
  act of self-defence was unlawful.

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Self-Defence The Scope

• S52(2)The defence is only available if and only
  if at the time of the relevant act, the
  defendant believed the conduct was necessary
• (a) to defend himself or herself or another
  person, or
• (b) to prevent or terminate the unlawful
  deprivation of his or her liberty or the liberty
  of another person, or
• (c) to protect property from unlawful taking,
  destruction, damage or interference, or
• (d) to prevent criminal trespass to any land or
  premises or to remove a person committing any
  such criminal trespass,
• and the conduct is a reasonable response in the
  circumstances as he or she perceives them

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Self-Defence The Scope

• S54 Where Ds conduct is judged to be an
  unreasonable response a court is nevertheless
  not to award damages against the person in
  respect of the conduct unless the court is
  satisfied that
• (a) the circumstances of the case are
  exceptional, and
• (b) in the circumstances of the case, a failure
  to award damages would be harsh and unjust

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End