1. THE LAW OF TORTS THE LAW OF TORTS

2. TORTS LECTURE DEFENCES IN NEGLIGENCE

3. The Concept of Defence Broader Concept: The content of the Statement of Defence- The response to the P’s Statement of Claim-The basis for non- liability Statement of Defence may contain: – Denial –Objection to a point of law –Confession and avoidance:

4. Defences: Factors that may undermine a plaintiffs claims

5. INTRODUCTION: FACTORS THAT MAY UNDERMINE P’S CLAIM The plaintiff's: – A diminished standard of care: pre- existing knowledge about the defendant’s incapacity –contributory negligence: failure to take reasonable care of his or her own safety –Voluntary assumption of risk: pre- existing or constructive knowledge of the risk associated with the state of affairs that gave rise to the negligence –unlawful conduct

6. DEFENCES Contributory Negligence Voluntary Assumption of Risk particular defendants with limited liability Inherent risks Dangerous recreational activities Obvious risks Diminished standard of care Unlawful conduct/illegality

7. 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

8. Contributory negligence

9. Class Exercise Class Exercise What does a defendant have to prove to establish a defence of Contributory Negligence at common law? Evaluate the scope of CN under the CLA

10. THE NATURE OF CONTRIBUTORY NEGLIGENCE: 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

11. Contributory Negligence: The nature of the P’s 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.

12. The Substance of Apportionment Legislation (Law Reform (Miscellaneous) Act 1965 (NSW) s9 If a person (the "claimant") suffers damage as the result partly of the claimant’s failure to take reasonable care ( "contributory negligence") and partly of the wrong of any other person:damageclaimantwrong a.claim in respect of the damage is not defeated by reason of the contributory negligence of the claimant, anddamagecontributory negligenceclaimant b.the damages recoverable in respect of the wrong are to be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.damageswrongcourtclaimantdamage

13. CIVIL LIABILITY ACT Division 8 s5R: –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. –(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, andharm – (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.

14. CIVIL LIABILITY ACT Division 8 S5S: –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.

15. How do the Courts approach the issue of contributory negligence? How do the Courts approach the issue of contributory negligence? Courts compare the degree of departure from the standard of the reasonable person of both the P and the D:

16. Pennington v Norris Pennington v Norris Facts: 2 men crossed the street to get to their car on a rainy night and were hit by a car and carried 30 feet and more down the street. Wilson suffered severe injuries and it was found that the pedestrians and driver were to blame. The Tasmanian court apportioned each of the parties 50% and this went to the High Court who then apportioned driver 80% and pedestrian 20%

17. The factors the court took into account: The factors the court took into account: Speed… Lots of people … 3 hotels just closed. Misty night Wet road. Impaired Visibility mistiness on the inside and outside of the windscreen. Driving 30 miles an hour under these circumstances… was obviously dangerous

18. Pennington v Norris cont’ed Dixon CJ, Webb, Fullager & Kitto JJ : –The only guide which the statute provides is that it requires regard to be had to "the claimant's share in the responsibility for the damage"… 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. By "culpability" we do not mean moral blameworthiness but degree of departure from the standard of care of the reasonable man.

19. Pennington v Norris cont’ed Pennington v Norris cont’ed Here, in our opinion, the negligence of the defendant was in a high degree more culpable, more gross, than that of the plaintiff. 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.

20. Froom v Butcher

21. What will a Defendant need to prove to establish the Defence? What will a Defendant need to prove to establish the Defence? Froom v Butcher [1975] 3 All ER 520 –Facts: P was injured in a car when they were not wearing a seat belt and crashed into another car. The other driver was at fault. The question that arises is whether Mr. Froom's damages are to be reduced because he was not wearing a seat belt.

22. Per Per Denning MR at 523 Negligence depends on a breach of duty, whereas contributory negligence does not. Negligence is a man's carelessness in breach of duty to others. Contributory negligence is a man's carelessness in looking after his own safety. He is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable prudent man he might be hurt himself

23. McLean v Tedman (1984) 155 CLR 306

24. Mere inattention and inadvertence v contributory negligence: McLean v Tedman (1984) 155 CLR 306 –Facts: garbage man running across the street to put garbage in the truck (garbage truck did not drive on either side, just drove one side and men ran to and form the truck). P alleged that the employer had been negligent in not providing a safer system of work. Employer argued that the men would not have adopted it anyway. –Held: Mason, Wilson, Brennan and Dawson JJ. The garbage man P was not guilty of contributory negligence, the employer had been negligent in failing to provide a safe system of work because:

25. McLean v Tedman (1984) 155 CLR 306 Mason, Wilson, Brennan and Dawson JJ. –“The standard of care expected of the reasonable man requires him to take account of the possibility of inadvertent and negligent conduct on the part of others.” At [8] –The question is whether that failure [of the P to observe the oncoming vehicle] should be characterized as mere inattention or inadvertence or whether it amounts to negligence, there being a well recognized distinction between the two. It is accepted that in considering whether there was contributory negligence by an employee in a case in which the employer has failed to provide a safe system of work, the circumstances and conditions in which he had to do his work must be taken into account. And the issue of contributory negligence is essentially a question of fact. [19]

26. Zanner v Zanner [2010] NSWCA 343[2010] NSWCA 343 Facts: The respondent, the mother of the first appellant, sustained serious injuries when she was struck by a motor vehicle owned by the second appellant and being manoeuvred by the first appellant at the direction of the respondent into the carport of the family home at Seven Hills. At the time of the accident, the appellant was 11 years and 2 months old. Held: Tobias JA (Allsop P and Young JA agreeing) Section 5S applies in “very rare” cases where it can legitimately be said that it is just and equitable to reduce the respondent’s damages by 100%.

27. The Calculus of Negligence Applies to Determine Contributory Negligence: Chapman v Hearse Where Pl is in imminent danger - The ‘agony of the moment' rule: unlikely to be contributory negligence, where defendant has put the plaintiff in imminent personal danger: The Bywell Castle (1879) 4 PD 219; Cortis v Baker [1968] SASR 367 Caterson v Commissioner for Railways (1973) 128 CLR 99

28. 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 against the risk that he takes in order to try to escape from it… a person who wished to avoid being carried on to a distant station might not unreasonably jump out from a train which was travelling very slowly.

29. Causation Causation The defendant must prove a causal link between the plaintiff’s negligence and the damage the plaintiff suffered At common law the same principles applied to P as for causation in respect of the D’s negligence: –March v Stramare (1991)171 CLR 506. –RTA of NSW v Turner [2008] NSWCA 48

30. RTA v Turner RTA v Turner

31. TRTA v Turner: The Facts TRTA v Turner: The Facts Driver of car not owner. He drove car at 85 kph, even though sign said 65 kph at some point but here should have been more signs. Wet condition and collided with oncoming vehicle. Driver seriosuly injured and owner of car killed in accident Driver sued owner through 3 rd party insurance AAMI –On the basis that rear tyres were smooth and should have been better. Driver also sued RTA for not reducing speek limit sign and erecting slippery when wet sign and in failing to maintain adequate skid resistance on the road surface at the curve. The trial judge found that but for the negligence of the RTA the accident would not have happened and held that the negligence of the owner was not a cause of the accident and the first respondent had not been guilty of contributory negligence. The RTA appealed.

32. Voluntary assumption of risk

33. Class Exercise In pleading voluntary assumption of risk does the defendant need to prove subjective knowledge or is proof of objective/constructive knowledge sufficient in the light of the Civil Liability Act 2002 (NSW)?

34. Birch v Thomas [1972] 1 WLR 294

35. 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?

36. Torts Week 7 Defences36 The risk which the P took must be precisely identified. Is that the risk which materialised and which injured the plaintiff? –Rootes v Shelton (1967) 116 CLR 383 –Kent v Scattini [1961] WAR 74 –Monie v The Commonwealth [2007] NSWCA 230 Mere knowledge of the risk is not the same as consenting to it The ‘whole risk’ must be incurred by P. VOULNTARY ASSUMPTION OF RISK IN COMMON LAW: VOLUNTI NON FIT INJURIA

37. Scanlon v American Cigarette Company overseas Pty Ltd (No 3) [1987] VR 289

38. Voluntary Assumption of Risk Scanlon v American Cigarette Company Overseas Pty Ltd (No 3) [1987] VR 289 –If it is to be the case that the smoking of the said cigarettes involved risk of injury as alleged… the P knew or ought to have known that the smoking of the said cigarettes involved such risk and the P accepted, consented to and voluntarily assumed the same ( extract from D’s statement of defence) –Issue: whether VAR is based on subjective knowledge or an objective/constructive knowledge is sufficient

39. Torts Week 7 Defences39 The defence of Volenti is NOT available in NSW in some cases: 1. In Motor Accident cases: Motor Accidents Compensation Act 1999 (NSW) s 140. 2. In Workplace Accident cases: Workers Compensation Act 1987 (NSW), s 151O. VAR Not available in some cases

40. ‘RISKS’ UNDER THE CIVIL LIABILITY ACT RISKS OBVIOUS INHERENT

41. 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.

42. Qualifications S5G(1) Under s5G(1) ’[i]n 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’

43. CLA:Section 5H(1) 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

44. risks associated with Recreational activities risks associated with Recreational activities

45. 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 )

46. 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’.

47. 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.

48. 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.

49. 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.

50. 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

51. Obvious Risk Obvious Risk The question of obvious risk involves the determination of whether the plaintiff's conduct involved a risk of harm which would have been obvious to a reasonable person in his position. The test is an objective one and thus must take account of the objective circumstances of the person whose conduct is being assessed. (Tobias J, Jaber v Rockdale City Council [2008] NSWCA 98;)

52. "' obvious ' means that both the condition and the risk are apparent to and would be recognised by a reasonable man, in the position of the [plaintiff] exercising ordinary perception, intelligence and judgment." (Mason P in Wyong Shire Council v Vairy [2004] NSWCA 247 at [161])

53. Tobias J in Wyong Shire Council v Vairy Tobias J in Wyong Shire Council v Vairy "[162] In this definition 'condition' refers to the factual scenario facing the plaintiff. Thus in a diving case the condition might typically be the fact that the plaintiff is faced with water of unknown depth. Under such a condition the risk would be that diving into the water (while the depth remains unknown) might result in (serious) injury. This risk would be considered obvious if, in the context of the case, it was perceptible to a reasonable person in the position of the plaintiff that if you do not know the depth of a body of water into which you are about to dive, then to dive into such water under such conditions inevitably brings with it the risk of injury."

54. Tobias J in Fallas v Mourlas [2006] NSWCA 32; Tobias J in Fallas v Mourlas [2006] NSWCA 32; For the purposes of the definition of "dangerous recreational activity" in s 5K, the scope of the relevant activity must be determined by reference to the particular activities engaged in by the respondent at the relevant time being the period immediately prior to the respondent suffering the relevant harm as a consequence of the appellant's negligence. (

55. as a general guide, the risk could not be " significant " unless there was a real chance of it materialising.

56. Risks in Recreational Activities Fallas v Mourlas [2006] NSWCA 32 –whether hunting kangaroos by spotlight was a "dangerous recreational activity" within s 5K of the NSW CLA, Falvo v Australian Oztag Sports Association & Anor [2006] Aust Tort Reports 81-831 (2 March 2006) –Mr Falvo seriously injured his right knee while playing a game of Oztag, a form of touch rugby. The game was played on a reserve occupied and controlled by the local council. The reserve was grassed but in some areas the grass had disappeared through wear and tear and the Council had levelled these areas with sand. Mr Falvo ran towards the opposing team's try line he encountered a bare patch, his knee gave way when his foot went into the sand and he collapsed in pain on the ground. Bujnowicz v Trustees of the Roman Catholic Church of the Archdiocese of Sydney40 (2005), plaintiff, in the course of a school touch rugby game, ran into a pothole on the school's rugby field sustaining severe injuries to his leg. Held: The hole there was not obvious and could not be categorized as a depression in the ground or a mere alteration in levels but was a trap

57. Negligence and the ordinary human experience Negligence and the ordinary human experience "If negligence law is to serve any useful social purpose, it must ordinarily reflect the foresight, reactions and conduct of ordinary members of the community... To hold defendants to standards of conduct that do not reflect the common experience of the relevant community can only bring the law of negligence, and with it the administration of justice, into disrepute...."

58. 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”

59. What is Illegality? There are three possible interpretations of ‘illegal act’ in this context: (a) action in breach of the criminal law; (b) criminal action and also conduct in breach of the civil law; (3) a criminal wrong, or civil wrong, or immoral behaviour.

60. 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