Defences to Negligence

Volenti non fit injuria: voluntary assumption of risk; the relevance of obvious risks

Volenti Non Fit Injuria (voluntary assumption of risk)*If a plaintiff has voluntary assumed the actual risk which causes the damage then this will be a complete

defence.*The defendant must prove the plaintiff actually knew of and appreciated the relevant risk: Morris v Murray

• However, the plaintiff’s capacity to comprehend and appreciate the risk might be limited or impaired Minor, mental illness: ➡ Waverley Council v Ferreira

As a result of the plaintiff’s own fault: intoxicated: ➡ Romeo v Conservation Commission of NTLead to a contributory negligence➡

One way to ensure knowledge of a risk on the part of the plaintiff is for the defendant to give a warning of a particular risk

• Warning must have been of the particular riskIf the danger is within the control of the defendant, only warning itself may not be sufficient to ➡

absolve the defendant’s liability.Especially those who vulnerable or children: ➡ Doubleday v Kelly

CLA s 5F - 5I: obvious risks• s 5F: Obvious risk

Objective test, obvious to a reasonable person in the position of the plaintiff: ➡ Romeo v Conservation Commission of NT

According to common sense: ➡ Hugh v Lord AdvocateEven the opportunity to occur is not great: ➡ Wagon Mound (No 2)Risk (condition to give risk to that risk) not prominent➡

• s 5G: Injured person presumed to be aware of the risk (the type or the kind of the risk).• EXCEPTIONS: minor: Waverley Council v Ferreira; Doubleday v Kelly

s 5H: No duty to warn of obvious risk: ➡ Romeo Conservation Commission of NT, EXCEPTIONS:- Requested by plaintiff- Requested by law- Defendant is a professional under the duty to warn (s 5P): Rogers v Whitaker

• s 5I: No liability to warn inherent risk (e.g., sports): Rootes v SheltonInherent risk ➡ is a risk cannot be avoid by due diligence, therefore might be no breach:Woods v

Multi Sports Holdings Pty Limited.CLA s 5J - 5N: recreational activities and inherent risks• s 5K: “dangerous recreational activities” involves a significant risk of physical harm,

• “Recreational activities” including “movies”.• s 5L: no liability for harm suffered from obvious risk of dangerous recreational activity: Fallas v Mourlas• s 5M: when the risk is warned, no liability. Warning can be given to :

The plaintiff himself/herself. (1)➡

The person who accompanies or controls the incapacity person. (shall not be an incapable person) ➡

(2)(a)The parents of the incapable person. (whether or not they control or accompany the incapable ➡

person) (2)(b)Steps for working our an obvious risk in problem (“recreational activities”)

Whether the requirements of s 5K are satisfied➡

✓recreational activity✓significant risk of physical harm

Whether the risk is obvious➡

✓s 5F: according to common sense, a reasonable person in the position of the plaintiff would think✓If the risk is obvious, s 5L is satisfied, in terms of a dangerous recreational activity; or✓Warning is not required, according to s 5H. (depends on the question)MACA 1999 s140: voluntary assumption of risk in motor accident: not available

s 140 (2) unless they are engaged in motor racing➡

Sports Participation in sport is violenti non fit injury for inherent risk of the game include foreseeable rule➡

breaking: Rootes v Shelton

Complete defense

Consent may take two forms: consent to the actual invasion of a protected interest or consent to the risk of a tort being committed.

"if the defendants desire to succeed on the ground that the maxim volenti non fit injuria is applicable, they must obtain a finding of fact that the plaintiff freely and voluntarily, with full knowledge of the nature and extent of the risk he ran, impliedly agreed to incur it" (Letang v Ottawa Electric Ry Co [1926J AC 725 at 731)

• Generally all that is required is knowledge by the plaintiff of the relevant circumstances, but not necessarily a willing acceptance

• There is a clear distinction between P voluntarily assuming a risk and that party entering into a relationship with D in which the standard of care expected by the former of the latter is reduced to take account of the special and peculiar circumstances in which both are placed

• The other distinction is that while a finding of voluntary assumption of risk demands knowledge of the risk and free acceptance thereof, a modification of the standard of care arises solely from the plaintiff's knowledge of the defendant's inability to attain a normal and acceptable degree of skill and care

• Person may be free of liability for negligent conduct: include a suitable disclaimer in a contract with the injured party or to rely on such a clause in an agreement which includes

• Participation in sporting activities: on the one hand, it is undoubtedly the case that mere participation, even in a dangerous sport does not necessarily equate with acceptance of each and every associated risk

• Participants are entitled to rely on all reasonable care• Defence may not be invoked when participants are injured by other players in violation

of generally accepted rules of the sport• D has to define the precise risk that plaintiff alleged to have run to show P consented

not only to some risk of injury but also to that particular risk which culminated in an injury and that this consent was free/voluntary

• D must also show that P fully comprehended the extent of the risk• Where the plaintiff's judgement has also been adversely affected by drink to the

extent of being incapable of appreciating the full extent of the risk, the defence of volenti is unlikely to succeed

Whitfield v McPherson: A successful defence of voluntary assumption of risk will excuse the defendant from the foreseeable consequences of his conduct, notwithstanding that that conduct remains a cause, and in many causes the only or a substantial cause, of the plaintiff's injury.

Beck v Mercantile Mutual Insurance Co Ltd: It is important for the D to define the precise risk that the P is alleged to have run; for it must be shown that the P consented not only to some risk of injury but also to that particular risk which culminated the injury.

Morris v Murray [1991] - PILOTThe only circumstances where a finding of voluntary assumption of risk might be made where both P

and D are affected by alcohol is if their joint enterprise in the consumption of liquor raises an inference that the P freely accepted the risks inherent therein.

• Morris and Murray had been drinking all day. The D, who had a pilot licence and a light aircraft, suggested flying the light craft. P agrred and drove them both to airfield.

• The conditions were very bad and all flights were cancelled. During the flight, the plane

crashed and Murray died and Morris seriously injured. Murray consumed 17 whiskeys. Morris survives and makes a claim for damages. Defendant cited ‘volenti non fit injuria’.

Held

Volenti non fit injuria was allowed. The actions of the P in accepting a ride in an aircraft from an obviously heavilty intoxicated pilot wavied the right to compensation.

Three things need to be established- the nature of the risk - the extent of the risk- voluntarily agreed to run the risk, and doing

o Stocker LJ

When deciding whether P assumed risk by travelling with an intoxicated driver/pilot, ask:1. How intoxicated was the driver?2. How obvious was this to the P?3. What is the extent of potential risk if P accepts the offer of carriage?

Rootes v Shelton (1967) 116 CLR 383 - High Court of Australia

Principle of Law: The law of negligence applies as between the participants in a sport or game. However, participants in a sport or game voluntarily assume such risk of injury as is inherent in the activity.

Facts:• The appellant, an experienced water skier, was skiing on the Macquarie river at Dubbo,

performing in company with other experienced water skiers an operation known as "crossovers" in which three skiers being towed with ropes of different lengths pass from side to side across the wake of the towing boat and across each other's pathso Appellant at the material time was in the middle of the 3 men and thus in crossing

had to pass his tow rope over the skier ahead of him and crouch under the rope of the skier behind him

• The towing boat was being driven along a fairly straight and sufficiently wide stretch of river during the manoeuvre, travelling at 35 miles/hour. As the appellant was passing the starboard side of the boat's wake he was temporarily blinded by spray and had need to clear his eyes before starting to turn inwards again. This may possibly have caused him to swing wider in executing his manoeuvre than otherwise he might haveo When he could see again he was faced with a stationary boat. He endeavored to

avoid colliding with it but was unable to do so. In the result he was severely injured. He sued the respondent who was the driver of the towing boat for failure to take due care in the control of the boat and fore failure to warn him of the presence of the stationary boat

• Jury found for the plaintiff but the Supreme court set aside the verdict on the ground that the respondent driver of the towing vehicle owed no relevant duty to the appellant, both being participants in a sport who had, by engaging in it, accepted the risks of injury which might be involved in taking part in it

Held:• By engaging in a sport or pastime the participants may be held to have accepted risks

which are inherent in that sport or pastime• Whether a duty of care from one participant to another arises and if it does, its extent,

must necessarily depend in each case upon its circumstances• No doubt there are risks inherent in the nature of water skiing, which because they are

inherent may be regarded as accepted by those who engage in the sport. The risk of a skier running into an obstruction which, because submerged or partially submerged or

for some other reason is unlikely to be seen by the driver or observer of the towing boat may well be regarded as inherent in the pastime

• But neither the possibility that the driver may fail to avoid, if practicable, or if not, to signal the presence of an observed or observable obstruction that the driver will tow the skier dangerously close to such an obstruction is, in my opinion, a risk inherent in the nature of sport

• That there is a recognized practice amongst participants that the driver or the observer should signal the presence of an observed obstruction is no more than emphatic than the skier does not accept these possibilities as risks which he must run without recourse. There was no evidence of risks inherent in the sport

• If it is said that a participant in a sport or pastime has voluntarily assumed a risk which is not inherent in that sport or pastime so as to exclude a relevant duty of care, it must rest on the party who makes that claim to establish the case in accordance with recognized principles

• Was the defendant's conduct which caused injury to the plaintiff reasonable in all the circumstances including as part of the circumstances the inferences fairly to be drawn by the defendant from the plaintiff's participation in what was going on at the time

• The appellant did not by his participation indicate to the respondent a willingness to accept either the risk of the respondent's steering a course which was closer to the stationary boat than was reasonable in the circumstances, or the risk of his omitting to take all reasonable measures to warn the appellant of the position of the stationary boat in time for him to avoid it

Appeal allowed

Motor Accidents Compensation Act 1999 (NSW) s140

s 140 (2) unless they are engaged in motor racing

o The defence of volenti non fit injuria is NOT available in respect of ‘motor accidents’, although circumstances that would otherwise have given rise to a defence of volenti will oblige a finding of contributory negligence: s 140(1)

Note – ‘motor accident’ means ‘an accident caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle which causes [personal injury’

o Exception : the defence IS available against the driver of, or a competent adult passenger in, a car engaged in motor racing, whether lawful or illegal: s 140(2), (3)

Volenti non fit injuria = Not available in motor car accident claims or work related injury claims in NSW: Motor Accidents Compensation Act 1999 (NSW) s76; Workers Compensation Act 1987 (NSW) s151.

Civil Liability Act 2002 (NSW) ss SF-SN

D, providing recreational services, may reduce liability injured through their services by:1. Risk warnings: Defined as: any sport (organised or not), any pursuit/activity for enjoyment, relaxation or

leisure, and any pursuit/activity that takes place in prev: s5K D does not owe DOC to another engaging in recreational services if risk is subject to

warning: s5M(1)

Does not apply to incapable person unless they are controlled/accompanied by capable person/parent: s5M(2)

Warning must reasonably likely result in people being warned of risk they are assuming before they actually engage in recreational activity. D does not have to prove that P got/understood/capable of understanding the warning: s5M(3)

May be oral or written: s5M(4) Need not be specific – can be general nature of the particular risk: s5M(5) Cannot be used if:

1. Not given by or on behalf of them or the occupier of the premises where RA takes place: s5M(6)

2. It contradicts written law of safety standards/codes: s5M(7)3. It contradicts any representation made by D to P: s5M(8)4. P is required by D to undertake recreational activity: s5M(9)

2. Exclusion clauses: Term of a contract for the supply of recreation services may exclude, restrict or modify any

liability for negligence: s5N(1)3. Dangerous recreational activities: Defined as: recreational activity that involves a significant risk of physical harm: s5K D will not be liable for P if obvious risk of dangerous recreational activity materialises: s5L Applies whether or not P was aware of risk: s5L

Obvious Risks:5G Injured persons presumed to be aware of obvious risks

(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.

Where “obvious risk”, P is presumed to be aware. P bears onus of proof that they were not aware. Does not need to know precise nature, extent, manner of risk – only “type or kind”.

5F Meaning of “obvious risk”(1) For the purposes of this Division, 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. An obvious risk is: obvious to reasonable person, patent or common knowledge, even if

low probability of happening, and even if not prominent or observable.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. D does not owe DOC to warn P of obvious risk.

Unless P request advice/information, D is required by law to warn, D is providing professional service (not doctor) and risk is death/personal injury to P during those services.

Fallas v Mourlas – KANGEROO SHOOTING

FACTS- P and D went kangaroo shooting- P was not involved in the shooting- P was in a vehicle responsible for spotlight - D said gun was jammed and tried to fix it, and when fixing it he shot the P in leg by accident - Two judges found P was engaged in dangerous recreational activity (as defined by s5K), other did

not.- P was not responsible or was NOT near the guns, just the spotlight - The D failed to establish that the recreational activity in which the P was engaged in on the night in

question was a “dangerous reacreational activity” for the purposes of s 5Lo The risk of accidental discharge of gun while sitting in vehicle was not a obvious risk of

dangerous recreational activity as defined in s 5Fo D liable for injury suffered by P

- The conduct of the D was gross negligence and it was not reasonable to foresee someone would act so careless

Contributory negligence

Consists of the plaintiff's failure to take reasonable care for his or her own safety and well-being which contributes, at least in part, to a subsequent injury.

s5R(2) CLA : To determine if P is liable for 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.

D must prove P failed to take reasonable care of their own safety negligence contribution to injury

Standard of care – what reasonable person would have done to protect THEMSELVES. May be partial defence – damages to P will be apportioned May be complete defence - s5S of CLA: “ a court may determine a reduction of 100% if the

court thinks it just and equitable to do so”

Causation D must prove causal link between P’s negligence and damage suffered by P. Same principles are causation in negligence – must be reasonably foreseeable. Use common sense (March v Stramare).

a) Conduct amounting to contributory negligence

*Whether the plaintiff is contributory negligence is question of fact: Caterson v Commissioner of Railways*Used to be a complete defence by applying the qualification of “last opportunity rule”: March v Stramare

Now is ➡ not a complete defence, apportionment under s9 of Law Reform (Miscellaneous Provisions) Act 1965. If the plaintiff and the defendant are both negligent then there can be no 100% reduction in damages available: Wynbergen v Hoyts Corp

Any apportionment will take account of the respective fault of the parties and the degree of ➡

each party’s departure from the standard of the reasonable person: Pennington v Norris★However, now claims can be defeated under s 5S of the CLA if “fair and equitable”.

*Contributory negligence remains the only basis on which an plaintiff will not be fully compensated for his loss.

In other cases, the plaintiff receives all or nothing.➡

MACA 1999, s 138(2), contributory negligence is awarded• Intoxicated passenger• Voluntary passenger with intoxicated driver• Not wearing a seat belt• Not wearing a protective helmetCLA s 5R - 5T: contributory negligence• s 5R: standard of contributory negligence: a reasonable person in the position of the plaintiff knew orought to have known the risk• s 5S: claims can be defeated as a 100% reduction of damages.• s 5T: contributory negligence-claims under the Compensation to Relatives Act available, however,damages will be reduced proportionately.CLA s 30(3): nervous shock claim• A nervous shock claim by a person who sees another person killed, injured, or put in peril is also to be

reduced by the contributory negligence of the victim.

• In order to establish this defence the defendant must plead and prove:o The injury of which the plaintiff complains results from the particular risk to which that party

was exposed by a lack of care• The harm sustained by the plaintiff belongs to that general class of perils to which the plaintiff

was exposed by his or her negligent conducto The negligence of the plaintiff contributed to the injury• Matter of causation: in Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at 165 - if

the plaintiff were negligent, but his negligence was not a cause operating to produce the damage, there would be no defence. I find it impossible to divorce any theory of contributory negligence from the concept of causation"

o There was fault or negligence on part of the plaintiff• Nance v British Colombia Electric Ry Co Ltd [1951] AC at 611 per Viscount Simon: ".all that is

necessary to establish such a defence is to prove to the satisfaction of the jury that the injured party did not in his own interest take reasonable care of himself and contributed, by this want of care, to his own injury"

• This is a question of fact and obviousness of risk is a factoro The standard of care expected of the plaintiff is measured against a person of

ordinary prudence• In some situations the negligent actions of the plaintiff might not be a cause of the

accident itself; they may, nevertheless, amount to contributory negligence where, but for those actions, the resultant harm would have been appreciably less

• Even a very young child is guilty of contributory negligence and consequent reduction in damages could be more than nominal - there is an objective standard but the child should demonstrate that degree of care for its own safety as could reasonably be expected of a child of similar age, intelligence and experience - younger child, less experience

• Intoxication: Contributory negligence consists in a failure to take reasonable care in one's own safety so a passenger injured by negligent drunken driving is contributorily negligent when accepting a lift knowing, or having reason to be aware that driver has an impaired capacity to drive carefully

Insurance Commissioner v Joyce (1948) 77 CLR 39 per Latham CJ: if the passenger is sober enough to know and understand the risk, he or she will no doubt be negligent

o Moreover there is authority for the view that where the passenger has imbibed so much alcohol that any capacity to know and understand the danger has been seriously weakened, and this incapacity is self-induced, contrib. negligence will lie

Doctrine of alternative danger

• If the negligence of the defendant puts the plaintiff in a position of imminent personal danger, conduct by the plaintiff which in fact operates to produce harm, but which is nevertheless reasonable in the agony of the moment, is not likely to amount to contributory negligence

• Answer to be found by weighing the degree of inconvenience to which he would be subjected against the risk taken in attempt to escape it

o Did the plaintiff behave reasonably in the dilemma in which the defendant had negligently placed him or her

Caterson v Commissioner for Railways (1973) – MOVING TRAIN

Principle of Law: At common law, contributory negligence is a complete defence to a claim founded on negligence. Contributory negligence is the failure of a person to take reasonable care for his or her own safety. However, it is a question of fact whether, in response to a situation of danger or inconvenience created by the defendant's negligence, the plaintiff has been guilty of contributory negligence.

Facts• The plaintiff (appellant) accompanied by his 14 year old son had driven a friend some 40

miles to a railway station, in order that the friend might catch the Brisbane-Sydney express. The plaintiff carried the friend's luggage onto the carriage, and as he was leaving the carriage he noticed that the train had started to move.

• No-one in the carriage heard any warning that the train was about to depart. The next station at which the train was to stop was some 80 miles away

• The train was not travelling very fast when the plaintiff, thinking of his son on the platform some 40 miles from home, jumped on the platform and was injured

• There was no direct evidence that there was a communication cord in the carriage, but there was evidence from which it might have been inferred that there was such a cord

• Appeal from a judgement of the CA Division of the Supreme Court of NSW• Did the appellant, by the very act of jumping from the train fail to take reasonable care

for his own safety and thus act unreasonably?

Held• 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 to the risk he takes in order to try and escape from it

o The jury had to weigh the inconvenience which the appellant would suffer if he remained on the train against the risk of leaving a train which moving at the speed at which they considered it was travelling. They also had to consider the question whether the appellant failed to take reasonable care for his own safety by leaving the train instead of pulling the communication cord, assuming one had been provided

• Bearing all the circumstances in mind it is impossible to conclude that the jury was bound to find that the appellant's injuries were caused or contributed to by any negligence on his own part

• Appeal allowed

Motor Accidents Compensation Act 1999 (NSW) s 138

Civil Liability Act 2002 (NSW) ss 5R, 47-50

Doubleday v Kelly [200S] - TRAMPOLINE

Principle of Law: In the context of s SF (meaning of "obvious risk") and s SR (standard of contributory negligence) of the Civil Liability Act 2002 (NSW), it is a relevant consideration that the person who has suffered harm is a child.

Facts• The plaintiff, a child aged 7, who was a guest in the defendant's house, suffered personal

injury when she fell off a trampoline at a time when there was no adult supervision

Held:• In upholding an award of damages for negligence in respect of this accident, the NSW CA

rejected the defendant's contention that the plaintiff had been guilty of contributory negligence by getting on the trampoline wearing roller skates

• Court agreed with the primary judge that this issue was to be determined by reference to the standard of care required of a reasonable child aged 7, not the standard of care required of a reasonable adult

• In this regard, sSR(2)(a) of the CLA makes no change in the common law• At paragraph 26, Bryson JA observed: "The characteristics of a reasonable person in the

position of the person who suffered harm include the characteristics of being a child of seven years"

• Similarly, whether a risk is an "obvious risk" within the meaning of sSF(1) of the CLA requires taking into account the circumstances of the plaintiff being a child aged 7

• In the present case, a reasonable child aged 7 would not have regarded the trampoline as an obvious risk even though a reasonable adult might have so regarded it

b) Common law: contributory negligence as a complete defence

Butterfield v Forrester (1809) – ROAD POLE

• Defendant's house was close to a public road. For the purpose of making some repairs to his house the defendant put a pole across the road

• In the early evening, at a time when this obstruction was visible at a distance of 100 yards, the plaintiff, riding his horse, collided with the pole and was injured

o In an action to recover damages for personal injury based on the defendant's negligence, the plaintiff's lack of care for his own safety was held to preclude him recovering any damages from D

• Common law rule that contributory negligence is a complete defence was stated by Lord Ellenborough CJ:

o "One person being in fault will not dispense with another's using ordinary care for himself. Two things must concur to support this action, an obstruction in the road by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff."

c) Apportionment legislation and the principle of comparative fault; 'just and equitable' reduction in the amount of the plaintiff's damages

Lord Porter in Stapley v Gypsum Mines Ltd [1953] AC 663 at 677: "[The apportionment legislation] enables the court (be it judge or jury) to seek less strenuously to find some ground for holding the plaintiff free from blame or for reaching the conclusion that his negligence played no part in the ensuing accident inasmuch as owing to the change in the law the blame can now be apportioned equitably between the two parties"

• The extent of the reduction in any particular case depends upon comparing the degree to which the two parties respectively fell below the standard of care expected of each - their comparative culpability

o In consequence there can be no standard percentage by which damages are to be reduced• "Damage" is universally defined to include the loss of life and personal injury, but has

also been held to cover the purely economic loss flowing from negligent misrepresentation• No account is taken of moral blameworthiness (Pennington v Norris)o "To institute a comparison in respect of blameworthiness in such a case as the present seems

more or less impracticable, because while the defendant's negligence is a breach of duty owed to other persons and therefore blameworthy the plaintiff's 'contributory negligence' is not a breach of any duty at all and it is difficult to impute 'moral' blame to one who is careless of his own safety'

• Not necessary to prove a breach of duty to another but merely that the plaintiff has exhibited a lack of care for his/her own safety, thereby contributing to the injuries suffered

• Apportionment legislation must be 'just and equitable' from the point of view of both the plaintiff and the defendant

Law Reform (Miscellaneous Provisions) Act 1965 (NSW) ss 8,9

- Law Reform (Misc Provisions) Act 1965o Under the common law, contributory negligence was a complete

defence: Butterfield v Forrestero The LRMPA enabled a more flexible approach: responsibility may

not be ‘apportioned’ between P and Do Where contributory negligence is found, the court is to reduce the

damages awarded to P in such proportion as it considers ‘just and equitable’: LRMPA, s 9(1)

s9(1) where a person suffers damage…partly of his own fault and partly the fault of any other person…a claim…shall not be defeated…but the damages recoverable…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”

Pennington v Norris (1956) - LANE CROSS

Calculating apportionment:Pennington v Norris: P hit by D’s car when crossing road at night. Trial: reduced by 50%. HC:

reduced by 20%. Leg does not say role of court – compare P/D negligence or just P’s neg. Held: 1) compare parties’ actions/responsibilities; 2) compare parties’ departure from

SOC of reasonable man, not moral blameworthiness.

Principle of Law: Under the apportionment leg in each Aus State/Territory, the damages recoverable by a plaintiff guilty of contributory negligence shall be reduced by such extent as the court considers "just and equitable" having regard to the comparative degree to which the conduct of the plaintiff and the defendant departed from the standard of care of the reasonable person.

Apportionament of liability

The act intends to give judge wide discretion with apportionament- Trial jusge stated concurrent fault

Facts• This is an appeal from the Supreme Court of Tasmania. The appellant was the plaintiff in an

action in which he claimed damages for personal injuries sustained when he (Pennington) was struck by a motor car driven by the respondent (Norris). Plaintiff crossed lanes and caused accident.

His Honour found that the damage had been caused by negligent conduct on the part of both parties and that each equally fault

o He reduced the plaintiff's damages by half• The plaintiff maintains that the learned judge was wrong in finding the plaintiff at fault, or

at least finding him equally at fault wit the defendant, and he should have judgment for the full amount or at least a sum substantially larger than one-half of that amount

HeldCourt held trial judge but altered from 50% to 80% against defendent

What has to be done is to arrive at a "just and equitable" apportionment as between the plaintiff and the defendant of the "responsibility" for the damage. It seems clear that this must of necessity involve a comparison of culpability - which is a degree of departure from the standard of care of the reasonable man

o To institute a comparison in respect of blameworthiness in such a case as the present seems more or less impracticable, because while the defendant's negligence is a breach of duty owed to other persons and therefore blameworthy, the P's contrib negligence is not a breach of any duty at all, and it is difficult to impute "moral blame" to one who is careless merely of his own safety

• The plaintiff's conduct was ex hypothesi careless and unreasonable but, after all, it was the sort of thing that is very commonly done: he simply did not look when a reasonably careful man would have looked

o The fact that his conduct did not endanger the defendant or anybody else is a material consideration

• A fair and reasonable allocation of responsibility for the damage done is to attribute it, as to 80% the defendant and 20% the plaintiff

This case = just and equitable apportionment – it affirmed process of apportionment • Appeal allowed

Wynbergen v Hoyts Corporation (1997) – WET FLOOR

Principle of Law: Where the court has determined that the fault of both plaintiff and defendant caused the damage, it cannot be "just and equitable" under the terms of the apportionment legislation to attribute responsibility entirely to the plaintiff.

Facts:• The appellant (plaintiff) was injured at work when he slipped and fell on a wet tiled floor of the

toilets which had recently been mopped during cleaning. No sign had been posted at the entrance to the toilets warning of the wet floor. He sued his employer, the respondent (defendant) in negligence. The trial was before a judge and jury

Held• It seems the jury answered the questions:

Was D negligent in failing to provide a safe system of work? Yes Was P negligent by failing to take care of own safety? Yes, 100% What is the assessment of damages arising out of the defendant's negligence? $38

Referred to Law Reform (Miscellaneous Provisions) Act 1965 (NSW) s10

No doubt the making of the apportionment which the legislation requires involves comparison of the culpability of the parties, i.e. the degree to which each has departed from the standard of what is reasonable, but that is not the only element to be considered

Regard must also be given to the "relative importance" of the acts of the parties causing the damage and it is the "whole conduct" of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination"

Apportioning 100% responsibility to the plaintiff is a step which apportionment legislation in the form under consideration here does not permit. That is not to deny the importance of considering whose fault caused or contributed the damage; indeed it is to emphasis the importance of that examination.

There may be cases in which a defendant may be shown to have failed to exercise reasonable care for the plaintiff, but the plaintiff is, in all the circumstances, judged to have been the sole author of the misfortune of which that plaintiff complains

But that is to conclude that the defendant's want of reasonable care was not a cause of the plaintiff's damage; it is to deny that the fault of both plaintiff and defendant contributed to that damage

Answers to q2 and 3 are inconsistent• Appeal allowed. New trial ordered

Civil Liability Act 2002(NSW) s 5S- In determing 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

- Zanner v Zanner o D was 11 year old boy, P was his momo P allowed D to drive family car into the garage o D’s foot had slipped and car hit the back wall of the garageo P was guilty of contributory negligence o However NSW court of appeal was not ready to accept P accept 100% - did not apply s 5S

(80% CN was assessment)- 5S only come into play in exceptionally unusual circumstances

d) Imputed contributory negligence – contributatory negligence of others

• In some circumstances the defendant may plead as a partial defence not only the negligence of the plaintiff but also the negligence of a third party for whose actions the plaintiff is vicariously responsible

• This reduces plaintiff's damages in such same way as if plaintiff had personally failed to take due care for his or her own safety

• However only circumstances in which the common law continues to impute contrib. negligence is that in which the plaintiff would have been vicariously liable for the conduct of another

Oliver v Birmingham & Midland Motor Omnibus Co [1933] 1 KB 35

- 4 year old P crossing road with grandfather , grandfather released P’s hand and avoided the bus but the P did not

- C.N. does not extend to third party- Regardless of grandfathers negligence, the P still able to recover damages against the company- CLA s 30(3)

Law Reform (Miscellaneous Provisions) Act 196S (NSW) s 13

Civil Liability Act 2002 (NSW) ss 51, 30(3)

CLA s 30(3): nervous shock claim• A nervous shock claim by a person who sees another person killed, injured, or put in peril is also to be

reduced by the contributory negligence of the victim.

Waverley Council v Ferreira (2005) Aus Torts Reports 81-818; [2005] NSWCA 418- Boy climbed up on skylight and fell through and died- Father claimed for damages, and the D relied on contributory negligence- Doubleday v Kelly approved – boy was 12 in this case – and would not have perceived the risk

associated with climibing on roof and sitting on skylight- Damages recoverable by the father were not reduced on account of any contributory negligence on

part of his deceased son o CLA s 30(3)

Plaintiff's unlawful conduct

No damages to P if P engaged in serious offence and conduct contributed materially to risk: s54

Serious offence defined as “punishable by imprisonment for 6 months or more”: s54(3)

Henwood v The Municipal Tramways Trust (1938)

Mere fact that P was acting illegally did not of itself constitute a defence. Question is: “is it part of the purpose of the law which P has offended to disentitle P of

right to damages?”

Principle of Law: There is no general principle that a person injured at a time when he or she is breaking some provision of the law is, on that account, precluded from recovering damages in negligence.

Facts• This is an appeal from the judgement of Napier J for the defendant, the Municipal

Tramway's Trust, in an action for negligence against the trust under the Wrongs Act 1936 of SA. The action was brought by the parents of Alfred John Henwood in respect of his death as the result of an accident when he was travelling on one of the defendant's trams in 1937

• He was a passenger on the tram on which he became sick and left his seat in the tram, leaned out over a rail on the side off the tram and vomited. His head struck in succession two steel standards, which were in the middle of the street, and he died shortly afterwards. The standards were 17 inches from side of tram

• The negligence alleged depends upon the construction of the tram without, it is said, sufficient barriers to prevent/discourage passengers from leaning out, taken in conjunction with the nearness of the standards. Negligence was denied, contributory negligence on the part of the deceased was alleged

• 1906 By-law made by Trust: "No passenger shall project or lean his head or other portion of his body or limbs out of any window in any tram, or outside the barrier on the off-side of the open portion of an tram"

• The trial judge determined the case upon the existence and the breach by the deceased of the by-law prohibiting leaning outside the barrier on the off side of the tram afforded "a conclusive answer to the claim in any form in which it could be presented"

Held• There is no general principle of English law that a person who is engaged in some

unlawful act is disabled from complaining of injury done to him by other persons, either deliberately or accidentally. Other persons still owe him a duty to take care, the extent of that duty being determined by the circumstances of the case which create the duty

o Hawshaw and Shaw• Thus it cannot be held that there is any principle which makes it impossible for a

defendant to be liable for injury brought about by his negligence simply because the plaintiff at the relevant time was breaking some provision of the law

• Is the prohibition contained in the by-law is imposed as a duty for the protection for the trust or really as a matter of policy for the protection generally of the travelling public?

• The manifest purpose of the by-law is to prohibit acts that are or are regarded as dangerous or careless acts on the part of passengers. It is a punitive provision. It does not in so many words relieve or purport to relieve, and perhaps could not directly relive, the tramways trust of the consequences of its own negligent or wrongful acts. nor does it deprive passengers of their civil rights against the trust in case of a breach of its duty to exercise care and forethought for securing their safety

• All that can be inferred from the terms of the by-law is that it prohibits certain acts and provides a specific penalty. It no doubt creates a duty but not a duty upon which the trust can found any right of action or any conclusive defence for breach of an duty which it owed to the deceased

• If the immediate cause of the injury is the unlawful act of P, he cannot recover; but if the unlawful act does no more than create a prior state of affairs upon which the defendant's negligence operates, he may recover

• In the present case the act constituting the breach of the by-law is not only an indispensable condition of the resulting injury, but it is the final act which produces it. The tram-car is rapidly moving with the posts alongside, and the passenger in that condition by leaning over completes the conditions necessary to cause the injury

• Breach of the by-law by the deceased does not disable the plaintiff from recovering in respect of his death

• In every case the question must be whether it is part of the purpose of the law against which the plaintiff has offended to disentitle a person doing the prohibited act from complaining of the other party's negligent or default, without which his own act would not have resulted in injury

• There is no rule denying to a person who is doing an unlawful thing the protection of the general law imposing others duties of care for his safety

• The true inquiry is whether it is the intention of the statute penalizing the particular conduct to affect civil responsibility. In the present case such an intention appears to be absent

• Appeal allowed. Case remitted to Napier j.

Gala v Preston (1991) -

No a priori reason why illegality…should automatically negate the existence of a Duty P and D in joint enterprise do not owe DOC to each other.

Principle of Law: Public policy considerations may negative the existence of a duty of care as between persons committing a criminal act.

Held• The fact that a joint enterprise is carried on illegally in breach of safety regulations requiring a

particular precaution to be taken should not preclude the existence of a relevant common law duty of care on the part of one participant to another unless circumstances of the parties' relationship, including the nature and incidence of the enterprise, are such as to make it unreasonable to fix a participant wit a duty of care

o There is no a priori reason why the illegality of a particular enterprise or activity should automatically negate the existence of a duty of care which might otherwise arise from the relationship which subsists between the parties

Civil Liability Act 2002 (NSW) ss 51, 54, 54A

Self-defence

Civil Liability Act 2002 (NSW) ss 51-53 No liability for acts in self-defence where responding to unlawful conduct: s52 Self defence is where: s52(2)(a) to defend himself or herself or another person, (b) to prevent or terminate unlawful deprivation liberty (c) to protect property (d) to prevent criminal trespass to land or to remove a person committing criminal trespass, and the conduct is a reasonable response in the circumstances as he or she perceives them. Does not apply if using force, involving infliction of death, only to protect property or

prevent criminal trespass or remove trespasser: s52(3) No damages even conduct is not a reasonable response in circumstances unless: s53

o Circumstances exceptionalo Failure to award damages would be harsh and unjust

Intoxication

Civil Liability Act 2002 (NSW) ss 47, 48, 50

Definition of intoxication – s47,4849 Effect of intoxication on duty and standard of care (1) The following principles apply in connection with the effect that a person’s intoxication has

on the duty and standard of care that the person is owed: (a) in determining whether a duty of care arises, it is not relevant to consider the possibility or

likelihood that a person may be intoxicated or that a person who is intoxicated may be exposed to increased risk because the person’s capacity to exercise reasonable care and skill is impaired as a result of being intoxicated,

(b) a person is not owed a duty of care merely because the person is intoxicated, (c) the fact that a person is or may be intoxicated does not of itself increase or otherwise

affect the standard of care owed to the person. SOC is not higher/existent merely because of intoxication.

50 No recovery where person intoxicated (1) This section applies when it is established that the person whose death, injury or damage is

the subject of proceedings for the recovery of damages was at the time of the act or omission that caused the death, injury or damage intoxicated to the extent that the person’s capacity to exercise reasonable care and skill was impaired. – no damages will be recoverable.

(2) A court is not to award damages in respect of liability to which this Part applies unless satisfied that the death, injury or damage to property (or some other injury or damage to

property) is likely to have occurred even if the person had not been intoxicated. – unless likely to occur anyway

(3) If the court is satisfied that the death, injury or damage to property (or some other 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. – even so, presumption of CN

(4) When there is a presumption of contributory negligence, the court must assess damages on the basis that the damages to which the person would be entitled in the absence of contributory negligence are to be reduced on account of contributory negligence by 25% or a greater percentage determined by the court to be appropriate in the circumstances of the case. – if presumed, then at least 25% reduction in damages

(5) This section does not apply in a case where the court is satisfied that the intoxication was not self-induced. – does not apply if not self induced

Russell v Edwards (2006) 65 NSWLR 373 - New South Wales Court of Appeal

Principle of Law: Section 50 of the CLA provides a complete defence in a negligence action to recover damages for death, personal injury or property damage "when it is established that the person whose death, injury or damage is the subject of the proceedings . was at the time of the act or omission that caused the death, injury or damage intoxicated to the extent that the person's incapacity to exercise reasonable care and skill was impaired." In such a case, no damages are to be awarded unless 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" (s50(2)).

Facts• Plaintiff, Ashley Russell, aged 16 at the relevant time, was a guest at a party at the

home of the defendants, Mr and Mrs Edwards. The party, attended by about 30 people, was

to celebrate the 16th birthday of the defendant's son. The defendants were aware that a large amount of alcohol was being consumed by the young party guests

• About 10.00pm, Mr Edwards told the guests to move into the pool area, which they did. Some of the guests, including the plaintiff, began swimming. After spending about 20 minutes in the pool, the plaintiff got out and dived in again at the shallow end of the pool

o The plaintiff struck his head on the floor of the pool and sustained serious injury• In a negligence action trial against the defendants the trial judge in the District Court found

that the defendants, as occupiers of the premises, owed the plaintiff a duty of care and that there had been a breach of duty in failing adequately to supervise and control the party guests

• However, the evidence established that, at the time he dived into the pool the plaintiff was intoxicated by alcohol to such an extent that his capacity to exercise reasonable care and skill was impaired

o Trial judge also found that in terms of s50(2) it had not been established that the plaintiff's injury was likely to have occurred even if he had not been intoxicated � accordingly the court awarded the plaintiff no damages

• Appeal by the plaintiff dismissed by NSW CA which did not find it necessary to decide whether the defendants owed the plaintiff a D0C or whether the defendants were guilty of a breach of duty

o The defendants were not liable in damages to the plaintiff on account of his alcohol intoxication

Held• Plaintiff's alcohol intoxication was "self-induced" in terms of s50(5) - "self-induced" was

equated with voluntary. It was not relevant that the plaintiff, a person with limited experience of drinking alcohol, was ignorant of the quantity of alcohol required to make him intoxicated

• The language of s50(1) required the determination of a single act or omission that caused the plaintiff's injury � as a matter of construction,

it must be read as referring to the act or omission that directly caused the death, injury or damageo The direct cause of the plaintiff's injury was his intoxicationo The plaintiff was entitled to no damages in respect of any liabilityMrjMrs Edwards might have had to him

550 of the CLA as interpreted in this case elevated contributory negligence to a complete defence when the relevant conduct of the plaintiff consists of self-induced intoxication. Return to the CL rule in Butterfield v Forrester which was abolished by the Law Reform (Miscellaneous Provisions) Act 1965 (N5