#7167 - Defences - Torts B

Prima facie conclusion on negligence

Prima facie, it appears from the above analysis that negligence [is/is not] made out, due to [per analysis above].

[Go on to consider defences either way]

May D raise any defences to the claim?

D may seek to rely on:

1. Limitation of Actions Act as a defence

2. A statutory defence arising from his/her status as a [Good Samaritian/volunteers]

3. Contributory negligence defence

4. Volenti non fit injuria defence

5. Illegality defence

Limitation of Actions Act

An action must be brought within 6 years of the cause of action accruing: LAA s 5(1)

Personal injuries

An action for damages in respect of personal injuries (including wrongful death) must be brought within 3 years of the cause of action accruing: LAA s5(1AA)

1. The cause of action for cases where the injury consists of a disease or disorder contracted by any person is taken to have accrued on the date when the person first knows that he/she has suffered the injury and that it was caused by the act or omission of some other person: LAA s 5(1A)

However:

2. LAA s 27D(1)(a) states that the limitation period is: 3 years from when the cause of action is discoverable by the plaintiff

3. LAA s 27D(1)(b) sets an upper limit of twelve years from the date the D’s act or omission resulted in the death or personal injury with which the action is concerned.

   1. Time does not start to run in respect of these two limitation periods for a person under a disability at the date of the alleged act or omission until they are no longer under that disability: LAA s 27D(2)

      1. So an injured minor will have three years from age 18

The limitation period for personal injuries may be extended in special circumstances: see LAA s 23A.

Under WA s 31B, a good Samaritan (a person assisting another in an emergency for no financial reward) is not liable in negligence for any claim made in respect of assistance provided by him or her in good faith at the scene or over the phone to a person at the scene.

1. This applies even if the emergency or accident was caused by the good Samaritan (WA s 31B(3), but does not protect them from liability for the emergency/accident itself (WA s 31B(4).

Under WA s 37, a volunteer is not liable in civil proceedings for acts or omissions done in good faith while providing a service in relation to community work organised by a community organisation; the liability attaches instead to the organisation.

Volunteer?

Per s 35(2), a person is a volunteer even if they receive: remuneration that he/she would receive whether or not she/he provided the service, out of pocket expenses.

Volunteer Country Fire Authority officers, emergency workers and those who do community work under an order of the court are not volunteers (WA s 35(3)).

Community work?

Community work includes work done per WA s

36(1)(a) for a religious, educational, charitable or benevolent purpose;

36(1)(b) for the purpose of promoting or encouraging literature, science or the arts;

36(1)(c) for the purpose of sport, recreation, tourism or amusement;

36(1)(d) for the purpose of conserving or protecting the environment;

36(1)(e) for the purpose of establishing, carrying on or improving a community, social or cultural centre;

36(1)(f) for a political purpose;

36(1)(g) for the purpose of promoting the common interests of the community generally or of a particular section of the community;

36(1)(h) for any other purpose specified in the regulations for the purposes of this section.

Community organisation?

Per WA s 34, community organisation means—

1. an incorporated association under the Associations Incorporation Act 1981;

2. a municipal council or other incorporated local government body;

3. any other body corporate;

4. any public entity or public service body within the meaning of the Public Administration Act 2004 or other person or body acting on behalf of the State—

that organises the doing of community work by volunteers.

Indemnities to have no effect

WA s 40 provides that an agreement for a volunteer to give a community organisation an indemnity against, or to make a contribution to a community organisation in relation to, a liability that the organisation accrues by operation of s 37 will be of no effect.

D may argue that P has contributed to the harm P suffered by [per facts], which D will allege is negligent.

To prove contributory negligence, there is no need to show a DOC P owes to himself/herself, as this is assumed. However, D must show P failed to take reasonable care for his or her own safety (breach of the aforementioned duty) and that this failure contributed to the harm P suffered (causation) (WA s 26(1)). The normal principles of negligence apply: WA s 61(1). Remoteness has already been considered above.

Breach of duty

As above in breach of duty, D must show that there was RF, not insignificant risk, and P has fallen short of the standard of care.

Standard of care

Under WA s 62(2)(a), the standard of care is that of a reasonable person in the position of P.

As above, a RP is an ‘ordinary prudent person’ (Vaughan v Menlove). The standard of the RP is assessed according to what a reasonable person would have known at the time of the alleged negligence (not at the date of judgment) (WA s 62(2)(b)).

Modification of standard?

As in breach of duty by D, the standard of care can be modified by P’s characteristics in certain circumstances.

[Look at breach characteristics (page 14) and apply here to decide the particular standard of care; for minors apply Kelly v Bega, drunks Joslyn v Berryman]

1. The standard of care of a child is that of a reasonable child of the same age as the P (Kelly v Bega Valley County Council)

   1. This is assessed according to notional levels of intelligence, experience and development which a child of that age could be expected to have attained (Kelly v Bega)

   2. If P suffered from some mental or physical impairment, and discharges the evidentiary onus of proving it affected his/her ability to perceive or avoid the risk, this may be taken into account to lower the standard of care (Glass JA in obiter in Kelly v Bega)

2. Courts have held that the standard of care of a person who is drunk will still be that of an ordinary reasonable person who is sober (Joslyn v Berryman).

Reasonable foreseeability

To show a breach of duty, the risk of harm of some kind to P or a class of persons like P being caused by the kind of carelessness alleged against P must have been RF by a RP in P’s position: WA s 48(1)(a), Wyong v Shirt.

1. A reasonable person would have foreseen the risk if it was real, that is, not far-fetched or fanciful (Wyong).

   1. A risk which is extremely unlikely to occur may nevertheless constitute a foreseeable risk, as long as the risk is real (Wyong)

Was the risk not insignificant?

As per breach, above, a person is not negligent in failing to take precautions against a risk of harm unless that risk was not insignificant: WA s 48(1)(b).

1. insignificant risks not limited to risks that are far-fetched or fanciful: WA s 48(3)(a)

2. risks that are not insignificant are all risks other than insignificant risks and include but are not limited to significant risks: WA s 48(3)(b).

Negligence calculus

The negligence calculus is applied as per breach of duty, above.

[Apply per breach of duty: see page 15 SWITCH REFERENCES TO P AND D]

‘Other relevant things’ additional factors for contributory negligence

Here, P may argue that

1. he/she was placed in a situation of ‘sudden emergency’ (of danger or inconvenience) as a result of D’s negligence; in such case, the court will determine whether a RP would have done what P did by comparing the degree of inconvenience against the risk taken to avoid it (Caterson v Commissioner for Railways).

   1. Courts will take into account the pressure under which the P is placed due to D’s actions in considering whether a RP would have done what P did, allowing a degree of leniency (Caterson).

D may argue that

2. A reasonable person would account for the possible carelessness (negligence) of others in deciding how to act with care (Jones v Livox Quarries)

   1. However, this is unlikely to apply where carelessness by others could not be anticipated

[Decide on negligence calculus, analogise drink driving cases with the following drink-driving cases where possible]

Contributory negligence in cases of drink-driving

In Banovic v Perkovic, it was held that a plaintiff is not obliged to remain sober in order to ensure a designated driver will not drink and remains capable to drive.

In Joslyn v Berryman, however, the court held that the question is whether a reasonable sober person would have foreseen that accepting a lift from an intoxicated driver would expose them to risk of injury (this was discussed above in standard of care). [Conclude on breach of duty]

Causation in contributory negligence

D must also show the harm to P was partly the result of P’s failure to take care (WA s 26(1)). As above in causation by D’s act, [the damage in question] is a legally recognised type of damage.

Causation is shown where P’s failure to take care contributed to the accident itself occurring, or where P’s failure to take care contributed to extent or nature of the injury.

Since the normal negligence principles apply (WA s 62), factual causation and legal causation (scope of liability) must be shown.

[Apply same principles as in causation, p 18 and decide whether causation made out]

CONCLUDE on contributory negligence

Here,...