Defences to negligence Chapter 8.2

Consider the following case…. In January 2009, American tourist Jean Barnard boarded a Qantas plane in Alice Springs. As she did so, a three-year-old child screamed close to her face. Ms Barnard sued Qantas for physical and mental damage, claiming that the pain caused by the scream was so severe her ears started to bleed and that she was left with permanent hearing damage. Ms Barnard's lawyer claimed that Qantas was negligent because the plane's cabin and cockpit crew had not taken precautions to ensure that the accident that resulted in her injury, did not happen.

The defence… Qantas Airlines argued in court that the airline was not responsible for a child's screaming It defended its flight staff and crew. Qantas also claimed that Ms Barnard suffered from a hearing problem prior to the incident aboard the aircraft and that it was not caused from the child's scream at all.

Questions; Who was the plaintiff? Who was the defendant? According to the plaintiff what harm did she suffer in this case? What were the defences that Qantas used in this case? What do you think would be the likely outcome of the case? Why?

Actual outcome… Barnard and Qantas reached a confidential agreement out of court. What is an out of court settlement?

Two defences in negligence In criminal law we learnt that there are defences to a crime, in civil law there are also defences available to the defendant. There are two defences to an action in negligence; contributory negligence and voluntary assumption of risk.

1. Contributory negligence Contributory negligence is a partial defence because it enables the defendant to argue that the plaintiff contributed to his or her own injuries and, therefore, should be held partly to blame. The extent of the plaintiff's own negligence is usually expressed in percentage terms. If the plaintiff is found to have contributed to his or her injuries to the extent of 60 per cent, then the plaintiff will only receive 40 per cent of the damages. This means that a plaintiff who was awarded $100 000 in damages would only receive $40 000.

2. Voluntary assumption of risk The defence of voluntary assumption of risk is also known by the Latin term volenti non fit injuria, meaning an injury cannot be done to a willing person. It is available in circumstances where plaintiffs knew, or should have known, there was a risk and voluntarily placed themselves in a position where they could be injured. It is a difficult defence for a defendant to prove and is not commonly used. If successfully argued by the defendant, the plaintiff will lose the case. Example; participating in a sporting competition such as an aerial skiing contest is a situation in which voluntary assumption of risk may apply. A person may voluntarily agree to take part knowing that the sport has obvious risks.

Taking risk in sport In the case of Agar v. Hyde; Agar v. Worsley [2000] HCA 41, the High Court accepted the defence of voluntary assumption of risk. Two rugby players suffered spinal injuries in separate rugby union games. The High Court found that the two players knew about and understood the dangers of playing rugby and by agreeing to play had consented to the risks. Therefore, they could not recover any damages. Also, it is possible that the defence of voluntary assumption of risk may apply in situations where a passenger voluntarily gets into a car with an intoxicated driver. However, to succeed, the defendant car driver must show that the plaintiff had knowledge of the risk and fully appreciated the risk.

Legislation and assumption of risk The Wrongs Act provides that a person should not be liable for injury suffered as a result of an obvious risk. Recreational service providers such as an underwater diving school or a horse riding school are able to rely on a form signed by participants exempting the provider from any claims for injury should any occur as a result of the inherent risk. The Wrongs Act also provides that the defence of voluntary assumption of risk does not apply to claims for damages relating to the provision of or failure to provide a professional or health service. However, providers have the responsibility to inform people of potential risks in accordance with opinions widely accepted by other respected practitioners.

Legislative changes The number of negligence disputes have been increasing over time Larger sums of money are awarded to successful plaintiffs Legislators have intervened and clarified the law relating to negligence.

Legislation and the laws of negligence- key reforms People who help others in emergencies (good Samaritans), volunteers in community groups, and food donors cannot personally be sued for conduct that may cause injury. Businesses that offer recreational activities where there is an obvious risk can avoid liability by including a contractual statement (a waiver) that participation is at the person's own risk. However, this does not apply if the provider was grossly negligent. A person who is involved in a criminal activity, or is under the influence of alcohol or other recreational drug, may lose the right to sue for negligence or have damages reduced by a significant percentage. An apology cannot be regarded as an admission of liability. To sue for non-economic loss (for example, pain and suffering and psychiatric injury) the claimant must prove that he or she has a permanent ‘significant injury’; for example, the loss of a breast or loss of a foetus.

Your Turn Complete the following questions; Test your understanding 1-2 Apply your understanding 3-5 Optional extension work; Read and complete questions 1-3 in the extend and apply your understanding section.

Complete the Bonsoy case study