Defences to Negligence Just like defences to murder and assault, civil law also has defences used.

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 $ in damages would only receive $

Definitions  Contributory Negligence: Contributory negligence occurs when the plaintiff fails to take reasonable care of his or her own safety to such an extent that the lack of reasonable care contributes to the damage or injury received

NEGLIGENCE BY TEACHING INSTITUTION: ROBERTS V. NORTHERN MELBOURNE INSTITUTE OF TAFE [2008]  In 2008, the County Court awarded Jamie Roberts $ for an injury that resulted in the permanent damage of his vision. However, the court held that there was contributory negligence by Roberts of 10 per cent; therefore the total amount awarded to Roberts was reduced to $  The injury occurred when Roberts was attending an electric arc welding class as part of a carpentry apprenticeship. He claimed the TAFE college failed in its duty to provide adequate instruction in the use of eye protection equipment and that the instructor did not respond to his complaint of difficulty seeing during the exercise. However, although the college was negligent, the court found that given his prior work experience, Roberts ought to have known not to continue to look into the bright light when he experienced problems with his eyes. Therefore he contributed to his injury.

The defence of contributory negligence is based on the belief that a person should take reasonable care for their own safety. Electric arc welding creates a very hot and bright light, and operators should use a shield mask and dark lenses to protect their eyes.

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  201  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.  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.

Definition  Voluntary assumption of risk: is a defence where a defendant can avoid liability in tort because the plaintiff voluntarily assumed the risk of injury

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. In the case, Insurance Commissioner v. Joyce (1948) 77 CLR 39, the plaintiff was a passenger in a car that crashed into a parked truck and then through a gate. He was found unconscious in the passenger seat of the car. The driver was later discovered under some bushes very drunk. In a 2–1 decision, the High Court held that the plaintiff's case failed because he knew of, and voluntarily assumed, the risk of negligent driving by the defendant.

8.2  1.) Explain why the voluntary assumption of risk may be an appropriate defence to an action in negligence.  2.) What is contributory negligence and why is it only a partial defence to negligence?  5.) You be the judge: decide whether or not the plaintiff could win a case in negligence in the following cases. For each situation you will need to:  apply the three elements of negligence  decide whether or not the defendant has any defences.  Case one: Pamela was injured while waterskiing. At the time of the accident she and another skier were being towed behind the same boat driven by Geoff. The two skiers were crossing over in front of each other when Pamela crashed into a moored boat. She claimed Geoff should not have steered so close to the moored boat and that he should have warned her that a moored boat was nearby.  Case two: Paul broke his leg when he fell into a hole in the footpath. The hole had been dug that morning by an employee of the local council. The council claims that Paul should have been looking where he was going because there were other road works going on in the area. Paul claims he was carrying lots of parcels at the time and his view of the footpath was blocked.