1. Defences to Negligence
LAW OF TORTS
Defences to Negligence

2. Roadmap for Today Contributory Negligence Voluntary Assumption of Risk
Common Law Development
Statutory Apportionment
Voluntary Assumption of Risk
Illegality
What we’ve looked at alredy:
Ipp Report: higher standard of care we have to take for ourselves.
“Almost defences”: volunteers, public authorities, professionals

3. A practice question
Homer and Marge owned a home on a river in Orange, NSW. One Saturday night, their son Bart was home alone. He invited a mate over, Milhouse, and they had a night out, coming home very drunk early the next morning. Milhouse woke up after an hour really hot, and decided to go for a swim in the river.
Milhouse had been here heaps of times, but it was a very dark night. He stood on the low fence separating the property from the river, and jumped in head first. River was only a metre deep, so he became paraplegic.
Assume the owners breached their DOC by not providing warning sign and put in a higher fence. What defence would be available to the Homer and Marge (as owners of house).

4. DEFENCES TO ACTIONS IN NEGLIGENCE
COMMON LAW
Contributory negligence
Voluntary assumption of risk, volenti non fit injuria
Illegality
CIVIL LIABILITY ACT
Pt 1A - ss5F to I: Assumption of Risk
- ss5R to T: Contributory Negligence
Pt 5 - Public Authorities
Pt 6 Intoxication
Pt 7 Self-Defence & Recovery by Criminals

5. Contributory Negligence
Earlier approaches in Common Law:
The complete defence (Williams v Commissioner for Road Transport (1933) 50 CLR 258)
Butterfield v Forrester (1809) 11 East 60
- The last opportunity rule
The development of apportionment legislation

6. Contributory Negligence at Common Law: The nature of the P’s conduct
D must prove:
The P was at fault or negligent
Children: Doubleday v Kelly [2005] NSWCA 151
Intoxication: Joselyn v Berryman
The fault or negligence contributed to the injury or loss suffered by P (causation)
Froom v Butcher [1976] 1 QB 286
The damage was a reasonably foreseeable consequence of the P’s fault or negligence

7. 1. FAULT Joslyn v Berryman; Wentworth Shire Council v Berryman [2003] HCA 34 (18 June 2003)
Facts
Trial – Boyd-Boland ADCJ found for Mr Berrymen but reduced damages by 25% for contributory negligence.

8. Joslyn v Berryman
NSWCA - Meagher J (leading judgment)
"His Honour, as I have said, made a finding of 25% contributory negligence against the plaintiff. The only action of his which could possibly have amounted to contributory negligence was permitting Miss Joslyn to drive instead of him….One must also, if one concludes that at the time of handing over Mr Berryman was too drunk to appreciate what was happening, a situation as to which there is no evidence in the present case, judge the question of contributory negligence on the hypothesis that the plaintiff did have sufficient foresight to make reasonable judgments. But, although at the time of the accident the blood alcohol levels of Miss Joslyn and Mr Berryman were estimated as being 0.138g/100ml and 0.19g/100ml respectively, there is no evidence that either of them were drunk at the time, and certainly no evidence that at the time Mr Berryman had any reason to think that Miss Joslyn was affected by intoxication. Indeed, quite to the contrary. Of the people who were present who gave evidence, all said that Miss Joslyn showed no signs of intoxication. His Honour so found.”

9. Joslyn v Berryman
HC – McHugh, Gummow, Callinan, Kirby & Hayne JJ allowed the appeal (ie. Overturned the decision of the NSWCA)

10. Joslyn v Berryman Gummow & Callinan JJ –
“A person in the position of Mr Berryman ought to have known, and in fact would have known (if he had not precluded himself from knowing by his own conduct) that Ms Joslyn's capacity must have been impaired, and probably grossly so, by the amount of alcohol she had drunk, not only during the immediately preceding evening, but also on the night before that. Furthermore Mr Berryman either knew, or ought to have known that the effects of two consecutive evenings of immoderate consumption would have had a compounding effect of tiredness and reduced attentiveness upon both of them... Factually the Court of Appeal erred in not finding that Mr Berryman's and Ms Joslyn's faculties, and accordingly their capacities to observe, react, assimilate, and deal with information and to drive a motor vehicle must have been seriously impaired by the consumption of alcohol”.

11. Motor Accidents Compensation Act 1988 s74
A finding of contributory negligence must be made in the following cases:
where the injured person or deceased person has been convicted of an alcohol or other drug-related offence in relation to the motor accident…
Where the driver’s ability to control vehicle was impaired by alcohol and the P as an adult voluntary passenger was/ought to have been aware of this…
Where the injured party was not wearing set belt/protective helmet, and was required by law to wear such belt/helmet

12. Civil Liability Act 2002
s5S – a court may determine a reduction of 100% if it is just and equitable to do so
: compare Wynbergen –v- Hoyts Corp (1997) 149 ALR 25
s5T – a court may reduce a claim for damages under the Compensation to Relatives Act 1897 for contributory negligence of the deceased
S50(4) – a presumption of contributory negligence of 25% if the plaintiff was intoxicated at the time of injury

13. 2. CAUSATION
Question of fact- was the damage suffered by the P caused caused by their own negligence?
Monie v Commonwealth [2007] NSWCA 230
Monie v Commonwealth [2007] NSWCA 230
Monie relied on Cth Employment Service to find an employee for his farm
The CES selected a guy called Winsor. He was interviewed briefly before getting the job.
Winsor had previously been convicted for assault causing bodily harm (only recently released). Monie had not been told this.
After working on the farm for 3 months, Winsor shot Monie 4 times.
Monie sued Cth for negligence- saying there had been breach of duty in failing to disclose Winsors criminal history.
TRIAL- said Monie was contributorily negligent because he failed to make enquiries into Winsor’s employment history.
APPEAL- was found that Monie was careless in not looking into Winsor’s employment history, and seeing if he was suitable for farm work. BUT no causal connection made to the subject of the negligence claim- it was not causally connected to the loss suffered by Monie (ie if the loss was related to his economic losses, ie Winsor was a slacker, then there would have been a causal connection).

14. 3. REASONABLY FORESEEABLE
Type of injury must be reasonably foreseeable in the circumstances.
- Gent-Diver v Neville [1953] St R Qd 1

15. Contributory Negligence of Rescuers
Azzopardi v Constable; Azzopardi v Thompson [2006] NSWCA 319

16. The Substance of Apportionment Legislation
- Courts directed to reduce damages recoverable to what it thinks to be ‘just and equitable.’
Law Reform (Miscellaneous) Act 1965 (NSW) s9
(1) Where any person suffers damage as the result partly of his/her own fault and partly of the fault of any other persons,
(a) a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, and
(b) the damages recoverable in respect thereof shall 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

17. What is Just and Equitable?
Pennington v Norris (1956) 96 CLR 10
“By culpability we do not mean moral blameworthiness but degree of departure from the standard care of the reasonable man.” (at 16)
Reasonableness must be judged in light of all the circumstances: Joslyn v Berryman
- Wynbergen -v- Hoyts Corporation P/L (1997)

18. Contributory Negligence under the Civil Liability Act
s5R (standard of CN- same as negligence)
s5S (CN can defeat a claim)
- In determining the extent of a reduction in damages by reason of CN, 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 is defeated.

19. Wrapping up Contributory Negligence
At common law: D must prove
The P was at fault or negligent
The fault or negligence contributed to the injury or loss suffered by P (causation)
The damage was a reasonably foreseeable consequence of the P’s fault or negligence
Statutory Apportionment

20. Voluntary Assumption of Risk Volenti Non Fit Injuria
Rootes v Shelton (1967) 116 CLR 383
The elements
P must have full knowledge of the risk
P must have voluntarily accepted the physical and legal risk
Hard to prove

21. Volenti v Contributory Negligence
Ipp Committee Report (2002):at 8.23
Since the introduction of the defence of contributory negligence, the defence of voluntary assumption of risk has become more or less defunct. This is because any conduct that could amount to voluntary assumption of risk would also amount to contributory negligence .
Courts prefer the defence of contributory negligence because it enables them to apportion damages…
Difference: CN requires degree of fault, volenti doesn’t

22. Full Knowledge of Risk
Subjective test: very difficult for the D to prove as mere knowledge alone does not imply consent.
Canterbury Municipal Council v Taylor [2000] NSWCA 24
Carey v Lake Macquarie City Council [2007] Aust Tort Reports
Leyden v Caboolture Shire Council [2007] QCA 134

23. Voluntary acceptance of risk
2 elements:
The P must have voluntarily accepted that there was a:
Physical risk (through injury), and
A risk that reasonable care would not be taken by the D (legal risk)
Imperial Chemical Industries Ltd v Shatwell [1965] AC 656

24. Rootes v Shelton (1967) 116 CLR 383
“To say that the P voluntarily assumed the risk of colliding with an obstruction in the water is one thing. To say that the D would carelessly fail to warn him of the presence of such an obstruction or would fail to exercise due care in steering the launch of which he had control is a very different proposition…” (at 395)

25. 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)

26. Civil Liability Act 2002 Assumption of Risk (Part 1A, Division 4)
Does not replace the common law, rather:
Rebuttable presumption that a P was aware of a risk of harm if that risk is an ‘obvious risk’: s5G
No duty to warn of obvious risk, unless P requests info about the risk, warning is required by law: s5H
Excludes liability for materialisation of an inherent risk: s5I Wyong Shire Council v Vairy [2004] NSWCA 247 =

27. Sport and Recreational Activities
By engaging in a sport or pastime the participants may be held to have accepted the risk which are inherent in the sport: Agar v Hyde (2000) 201 CLR 383
Woods v Multi-Sport Holdings Pty Lts (2002) 208 CLR 460
Inherent risk only those which are naturally incidental to the game being played and any extraordinary, although foreseeable, risks incidental to that sport.

28. Civil Liability Act 2002 Recreational Activities (Part 1A, Division 5)
s5K- definitions
In this Division: 
"dangerous recreational activity" means a recreational activity that involves a significant risk of physical harm. 
"obvious risk" has the same meaning as it has in Division 4. 
"recreational activity" includes:
any sport (whether or not the sport is an organised activity), and
any pursuit or activity engaged in for enjoyment, relaxation or leisure, and
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.

29. Civil Liability Act 2002 Recreational Activities (Part 1A, Division 5)
S5L- no liability for harm suffered materialisation of obvious risks of dangerous recreational activities
s5M- no duty of care for recreational activity where there is a risk warning

30. Swain v Waverley Municipal Council (2005) How the HC may view “recreational activity”
MR MENZIES QC:It is the Civil Liability Act 2002 and it Division 5 “Recreational Activities” - - -
GUMMOW J: What does it say? What is the critical provision?
MR MENZIES QC: Well, 5J applies only in respect of liability in negligence for harm to a person (“the plaintiff”) resulting from a recreational activity engaged in by the plaintiff. Recreational activity is divided into two kinds. There is;
“dangerous recreational activity” means a recreational activity that involves a significant risk of physical harm. That is in the definition section 5K, and:
“recreational activity” includes: (a) any sport . . .  (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, etc.)
5L No liability for harm suffered from obvious risks of dangerous recreational activities . . .  5M No duty of care for recreational activity where risk warning – so that liability would seem to be excluded if a risk warning is put up, assuming this is a recreational activity. If, on the other hand, as Chief Justice Gleeson points out, this might well be regarded as a dangerous recreational activity, you do not even have to put a sign up, that is the end of it.

31. Swain – Insight to how the HC may view “recreational activity”
KIRBY J: It does not sound as though this is categorised. That is paragliding and things of that kind, I would have thought, because they say, “such as on a beach” in the definition of “recreational activity”.
MR MENZIES QC: True.
GLEESON CJ: What about recreational activities that are dangerous for some people, like people who cannot swim, and not dangerous for others?
MR MENZIES QC: I have no doubt that at some point that is going to entertain your Honours.
GUMMOW J: Here we are again, more imperfect law reform.

32. Wrapping up VAR
VAR is tough to for the D to prove as D would have to prove:
P had full knowledge of the risk and
Voluntarily accepted the physical and legal risk.

33. Illegality Who has been acting illegally? The P? The D?
Both?- Joint Illegal Enterprise
D may be able to be absolved from negligence liability

34. Joint Illegal Enterprise
D must prove:
They and the P were jointly engaged in an illegal activity, and
There was a connection between the illegal activity and the negligent conduct
Jackson v Harrison (1978) 138 CLR 438
The conduct within the illegal enterprise must be connected to the alleged negligence

35. Plaintiff Illegal Activity
At common law:
- Just because the P was engaged in criminal conduct at time of injury doesn’t necessarily prevent duty from being owed: Hackshaw v Shaw (1984) CLR 614

36. Civil Liability Act 2002 Illegality
S54 – criminals not to be awarded damages if:
(a) on the balance of probabilities, the conduct constitutes a “serious offence”, and
(b) that conduct contributed materially to the risk of death, injury or damage.

37. Wrap-Up Contributory Negligence Voluntary Assumption of Risk
Common Law Development
Statutory Apportionment
Voluntary Assumption of Risk
Illegality

38. A practice question
Homer and Marge owned a home on a river in Orange, NSW. One Saturday night, their son Bart was home alone. He invited a mate over, Milhouse, and they had a night out, coming home very drunk early the next morning. Milhouse woke up after an hour really hot, and decided to go for a swim in the river.
Milhouse had been here heaps of times, but it was a very dark night. He stood on the low fence separating the property from the river, and jumped in head first. River was only a metre deep, so he became paraplegic.
Assume the owners breached their DOC by not providing warning sign and put in a higher fence. What defence would be available to the Homer and Marge (as owners of house).
Contributory negligence:
Apportionment legislation:
S5S: court can apportion damages if it is ‘just and reasonable’ to do so. Discussion of facts:
It was dark
Early in the morning
Jumped head first
Added issue of inebriation: s50(4)- will mean damages apportioned at a minimum of 25%
Volenti
Available?
Difference: in CN- P unreasonably failed to look after him/herself. In volenti, P accepts the risk of the activity. D would prefer to use this if possible because it is a complete defence.
P must be at fault: no worries
Must have ACTUAL KNOWLEDGE: use the BMX case- Leyden v Caboolture
The damage was a reasonably foreseeable consequence of the P’s fault or negligence
Risk
Obvious risk:
s5F: obvious risk: risk that would be obvious to a reasonable person in the position of the P. Reasonable person IMPLIED as being sober: McHugh J in Joslyn v Berryman
s5G: injured person assumed to be aware of obvious risk unless proven otherwise- Milhouse must prove he didn’t know of risk. Would be difficult given he’s been going there since he was a kid.
SO IF this is found to be an OBVIOUS risk, there would have to be a warning. Here no warning. No defences.
Inherent risk
s5I: liability excluded for materialisation of inherent risk
from Wyong Shire Council v Vairy- Inherent risk is a question of fact in each case- ie: striking one’s head when diving IS NOT an an inherent risk when diving into water with a misleading shallow bottom, but it IS an inherent risk when diving into water with an unknown depth:
If diving into water held to be INHERENT RISK, then Homer and Marge could have liability excluded.
Recreational activity:
NOT dangerous recreational activity (swimming in river would not have SIGNIFICANT RISK of physical harm)
here, s5K: recreational activity includes s5K(b)- any pursuit or activity engaged in for enjoyment, relaxation or leisure (or if not, you could say that a river is a place where people ordinarily engage in sport or leisure activity under (c)
s5M: no DOC for recreational activity where there is risk warning.