Prima facie conclusion on negligence

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]

Defences

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 1958 (Vic)

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.

Statutory provisions

Good Samaritans

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).

Volunteers

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.

Contributory negligence

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...

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