LWB147 Week 11 Lecture Notes Defences to Negligence Negligence Plaintiffs must prove on the balance of probabilities: Duty of care Breach of that duty Damage Defendants must prove on the balance of probabilities: Defences Damages Consider common law and Civil Liability Act for: Contributory negligence Volenti non fit injuria Joint illegal enterprise Other ways for action to fail: Time limits Specific situations Exclusion clause Defence 1: Contributory Negligence Failure to take reasonable care of own safety. Joslyn v Berryman court held plaintiff guilty of contributory negligence where they expose themselves to a risk of injury which might reasonably have been foreseen and avoided and suffers injury within the class of the risk to which plaintiff exposed themselves. Commissioner of Railways v Ruprecht court held that contributory negligence is different to negligence in that there is no duty of care owed to another person and contributory negligence involves conduct which exposes to actor to the risk without necessarily exposing others to risk. Elements of Contributory Negligence Fault + Contributed to foreseeable injury = Contributory negligence 1. Plaintiff at fault This is a question of fact. The court will look at the circumstances to determine whether the plaintiff has fallen below the standard of care. The standard of care is determined by the courts and is based on what a reasonable person would have done under the circumstances to protect their own safety. Vairy v Wyong Shire Council (2005) 223 CLR 422. Refer to Civil Liability Act 2003 (Qld) s 23. See s 9(2) for calculus of negligence. 2. Contributed to the foreseeable injury/loss suffered by plaintiff Fitzgerald v Penn (1954) 91 CLR 268 March v Stramare (1991) 171 CLR 506 Kirk v Nominal Defendant [1984] 1 QdR 592 Monie v Commonwealth [2007] Safety Devices Failure to wear a safety belt may amount to contributory negligence. Some states have legislation: not Queensland, therefore need to prove contributory negligence. Eagles v Orth [1975] QdR 197: plaintiff held to be 15% contributory negligent.
Within the Risk The damage suffered by the plaintiff was a reasonable foreseeable consequence: not too remote. Gent-Diver v Neville [1953] St R Qd 1: held headlight not cause of accident. If contributory negligence is established Originally, complete defence at common law. Now, Law Reform Act 1995 (Qld), s 10: (1) If a person (the claimant) suffers damage partly because of the claimant's failure to take reasonable care (contributory negligence) and partly because of the wrong of someone else (a) a claim in relation to the damage is not defeated because of the claimant's contributory negligence; and (b) the damages recoverable for the wrong are to be reduced to the extent the court considers just and equitable having regard to the claimant's share in the responsibility for the damage. Law Reform Act 1995 (Qld), s 5 defines wrong including tort and contract: wrong means an act or omission that (a) gives rise to a liability in tort for which a defence of contributory negligence is available at common law; or (b) amounts to a breach of a contractual duty of care that is concurrent and coextensive with a duty of care in tort. Just and Equitable Under s 10 the court must reduce damages to the extent just and equitable. In an exam, not expected to come up with the percent courts would reduce damages by, but rather the circumstances under which courts would reduce sentences and case examples of factors taken into consideration and percentage reduced by which are relevant. Consider cases: Pennington v Norris (1956) 96 CLR 10 o Defendant ran over plaintiff. Plaintiff claimed defendant drove negligently, defendant claimed plaintiff failed to keep proper lookout. o Liability apportioned to 50% for plaintiff, which is a considerably large apportionment. o High Court reduced this to 20% on appeal. o Court thought negligence of both was important. The defendant was driving considerably fast and in an area where there was a significant number of people on streets. It was a wet and misty night. Negligence of was defendant found higher than of plaintiff. Court said plaintiff endangered themselves (no one else) by not looking out properly, whereas defendant was endangering others too. Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529. o The court compared the conduct of each party and how far each deviated from the objective standard. o Court decided 90% liability of plaintiff which is a very high percentage of liability. 100% Contributory Negligent Not at common law Wynbergen v Hoyts Corp Pty (1997) 149 ALR 25. Now see s 24 Civil Liability Act 2003 (Qld) which states a court may reduce damages by 100% if the court considers it just and equitable to do so. Presumptions Civil Liability Act presumes contributory negligence in certain circumstances. CLA s 47: plaintiff intoxicated. CLA s 48: defendant is intoxicated. CLA s 49: plaintiff relying on an intoxicated defendant when driving a motor vehicle.
Civil Liability Act See definition of intoxication in Schedule 2. When the plaintiff is intoxicated. See s 47 Civil Liability Act 2003 (Qld.) Presumption of contributory negligence. Minimum reduction of 25%. If driver of motor vehicle 50%. Rebut presumption s 47(3) by showing intoxication not contribute to breach. Intoxicated Defendant See s 48 for when plaintiff relies on an intoxicated defendant. Presumption of contributory negligence. Minimum reduction of 25%. Can rebut presumption s 48(3) if defendant s intoxication did not contribute to the breach or unreasonable not to rely. Section 48(5) volenti not apply if defendant is intoxicated. Section 49 of Civil Liability Act Intoxicated defendant driving a motor vehicle. Plaintiff was a passenger. Minimum reduction 50%. Volenti Non Fit Injuria Complete defence: There can be no injury to the willing. Defendant must establish that the plaintiff voluntarily accepted the risk of being injured. Acceptance may be express or implied. See Letang v Ottawa Electric Railway Co [1926] AC 725 at 731 for definition. Smith v Charles Baker & Sons [1891] AC 325 the plaintiff employee said defendant negligent in operation of crane and by failing to warn plaintiff of falling rocks, was negligent. Elements Knowledge of the Risk + Acceptance of the Risk = Volenti Non Fit Injuria. 1. Knowledge of the risk Subjective test. Not enough to say plaintiff aware of inherent risks of the activity. Joslyn v Berryman. Canterbury Municipal Council v Taylor. Civil Liability Act See ss 13-19. Definition of obvious risk in s 13. Reverse onus of proof in s 14 where plaintiff may prove they were not aware of the risk. Dangerous recreational activities ss 18-19. Fallas v Mourlas [2006] NSWCA 32. Falvo v Oztag [2006] NSWCA 17. 2. Acceptance of the risk Physical risk. Legal risk. ICI v Shatwell [1965] AC 656.
Sport Rootes v Shelton (1967) 116 CLR 383: water skiing. Canterbury Municipal Council v Taylor: velodrome. Characteristics of the Plaintiff Doubleday v Kelly. Leyden v Caboolture Shire Council [2007] QCA 134. Intoxication. Illegality No general principle that a person is disqualified from bringing an action in negligence merely because at the time they were engaged in an unlawful act. Henwood v Municipal Tamways Trust (SA) (1938) 60 CLR 438. Civil Liability Act Illegality in s 45. (1) no civil liability if plaintiff engaged in conduct indictable offence. (2) unless harsh and unjust. (3) minimum reduction of 25%. Joint Illegal Enterprise Complete defence Plaintiff and defendant acting jointly in an illegal activity at the time of the breach Connection between illegal activity and the negligent conduct Cases Jackson v Harrison where both plaintiff and defendant were disqualified drivers. Gala v Preston (1991) 172 CLR 243where plaintiff and defendant were joy riding. Italiano v Barbaro (1993) 114 ALR 21where plaintiff and defendant were faking MV accidents to defraud insurance companies. Fabre v Arenales (1992) 27 NSWLR 437. Miller v Miller Danelle Evelyn Miller v Maurin Ashton Miller [2011] HCA 9: delivered 7 April 2011. Plaintiff stole car and defendant drove it. Plaintiff asked twice to be let out of car. Defendant crashed car because of negligent driving. Plaintiff now a tetraplegic. WACA held no duty of care owed to plaintiff. High Court held whether the prosecution of a joint illegal enterprise negates the existence of a duty of care between participants depends on the statutory purposes of the section creating the offence. Majority held that the plaintiff withdrew from the joint illegal enterprise when she asked to be let out of the car and therefore defendant owed duty. Defences Under Civil Liability Act Professional acted in a way that was widely accepted by peer professional opinion as competent professional practice: CLA s 22. Considered as a defence in NSW. You consider it in breach after working through CLA s 9 (professional standards). No liability for prescribed entity or person working for prescribed entity providing first aid or medical assistance if done in good faith and without reckless disregard in an emergency: CLA ss 26 and 27. No liability for harm suffered as the result of the materialisation of an inherent risk : CLA s 16.
Summary of Defences Contributory negligence apportions liability. Volenti prevents a duty of care from arising. Joint illegal enterprise prevents a duty of care arising because of policy reasons it is not appropriate to do so. Civil Liability Act. Presumptions which result in reduction. No liability at all. Professionals (Queensland covers in breach). Approaching Negligence Problems ISAAC method Identify plaintiff, defendant, action Duty of care Breach of that duty Damage Defences Remedies Onus of proof and time limits Past exam question from 2006 Lola is driving along the Inner City Bypass at 11pm on a Saturday night. She and her passenger, Charlie, have been at a party. As Lola drives out of the tunnel on the bypass, another car suddenly appears from behind and overtakes. Lola continues to drive but suddenly the car that had overtaken brakes in front of her and Lola crashes into the rear of the car. Charlie suffers a broken ankle due to the impact of the crash. Assume that negligence may be proven against Lola. In respect of Charlie s action in negligence against Lola, advise on Lola s liability in each of the following different circumstances: As Lola was the designated driver, Charlie was drinking heavily at the party and was intoxicated at the time of the accident. Charlie saw the car in front brake and decided in his drunken stupor he would help Lola drive so he grabbed the steering wheel, leaving Lola unable to take evasive action. Charlie is presumed to have been contributorily negligent under s 47(2) CLA. The presumption may be rebutted if his intoxication did not contribute to the breach: s 47(3)(a) On these facts it appears that his intoxication may have contributed to the breach as he grabbed the steering wheel and then Lola was unable to control the car. Therefore Charlie s damages would be reduced by at least 25% - s 47(4). Neither Lola nor Charlie drink alcohol, however, at the party Lola thought she was drinking orange juice but it was in fact vodka and orange. She consumed six of these drinks between 7:30pm and 10:45pm and was seen by other partygoers to be very unsteady on her feet and to be slurring her words as she and Charlie left the party. Charlie believed she was capable of driving. At the scene of the accident Lola is required by police to give a breath test and a reading of 0.15% is recorded. Being a passenger in a car driven by an intoxicated person, Charlie is presumed have failed to take care of his own safety: CLA s 48(2). Section 48(2) applies as Charlie is over 16 years of age, relied on the skill of an intoxicated person, and if he was not aware of her intoxication (thought she was ok to drive), it is arguable that he ought to have been aware of it as she was unsteady on her feet and slurring: s 48(1). His subjective opinion that she was ok would not deny the application of the section (volenti cannot apply due to s48(5)). The presumption cannot be rebutted (s48(3)) on these facts as the intoxication of Lola did contribute to the breach and there is nothing to say that Charlie could not have avoided relying on her (he could have driven for example as he had not been drinking). As Charlie was a passenger and Lola the driver, s 49 applies as Lola s BAC is 0.15 (s49(2)(i)) and damages will be reduced by at least 50%.
Neither Lola nor Charlie drink alcohol and at the time of the accident Charlie was not wearing his seatbelt. By not wearing a seatbelt Charlie may be contributorily negligent. Fault standard would be that of a reasonable person who is a passenger in a car: CLA s 23. Charlie clearly has failed to take reasonable care of his own safety by not wearing a seatbelt, this is clearly a foreseeable risk, and is significant and the response of a reasonable person taking into account it involves a breach of statute, a high risk of injury (probability and seriousness) and it is not difficult to wear/fasten a seatbelt: CLA s 9. Is there causation? Yes, by failing to wear his seatbelt, it is arguable that Charlie has either contributed to his injury or caused it: Eagle v Orth. Is this within the risk created by his conduct? Clearly failing to wear a seatbelt, personal injury is the very type of injury one could expect: Gent v N-D. The harm is the reasonably foreseeable consequence of Charlie not wearing a seatbelt. Therefore court will reduce Charlie s damages as it thinks is just and equitable: Law Reform Act 1995 s 10 Next Week Week 12: no lecture See Blackboard site for materials for Workers Compensation Week 13 overview lecture