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Torts B Extended Defences Notes

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Defences Contributory Negligence As a result of IPP reforms, Victoria have allowed a finding of contributory negligence to defeat the claim A wrong is (S. 25) an act or omission that gives rise to a liability in tort in respect of which a defence of Contributory Negligence is available at common law. Section 26, Wrongs Act If a person suffers damage partly as the result of the claimant's failure to take reasonable care (contributory negligence) and partly of the wrong of any other person or persons: (a) except as provided in section 63, a claim in respect of the damage is not defeated by reason of the contributory negligence of the claimant; and (b) the damages recoverable in respect of the wrong must be reduced to such an extent as the court thinks just and equitable, having regard to the claimant's share in the responsibility for the damage.

Section 63, Wrong Act 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

Section 26, Requirements In order to show contributory negligence the P must have:

1. Failed to take reasonable care for her safety (breach), and

2. This failure contribute to her harm (causation).

Section 62, Wrongs Act (1) 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 (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time

Sudden Emergency Caterson v Commissioner for Railways (1973) 128 CLR 99 (CB 332)




Train case where the husband jumped off and was injured At the time, contributory negligence was a complete defense Held:


o o

HC found that where a plaintiff has by reason of the negligence of D be so placed that he can only escape 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 against the risk he takes in order to try and escape from it The appeal by P was allowed, HC allowed a degree of leniency in addressing P's behavior This is know as the sudden emergency doctrine

Anticipating Negligence



In determining how to act with care, a reasonable person would account for the possible carelessness of others This is unlikely to apply where carelessness by others could not be anticipated - e.g. gross negligence

Jones v Livox Quarries [1952] 2 QB 608



o o


P was riding on the tow bar of a vehicle for loading and carting materials on building sites another vehicle negligently ran into him from behind and he was crushed

Held: Denning said a person will be liable if he ought to have foreseen that if he did not act as a reasonable and prudent man, then he might hurt himself o He must take into account the possibility that other might be careless o Gross negligence would not be anticipated

Minority Kelly v Bega Valley County Council (unreported, 13 Sept 1982, Court of Appeal (NSW) (CB 338)



o o o


P was 11 and suffered electrocution when he came into contact with a high voltage terminal It was on a light pole put there by the council Council denied negligence and raised defense of contributory negligence



The standard is that of a reasonable child of the same age as the P

o o

This is assessed, not according to the P's actual intelligence, experience and development, but according to notional levels of intelligence, experience and development for that age However, if the P suffered from some mental or physical impairment, that may be taken into account to lower the standard of care


? According to s 26 the P's harm must be partly a result of the P's failure to take care
? According to s 62 we determine this according to same principles for determining negligence

? Same principles of causation applied as per earlier topic: the contribution to harm may arise where: a) the P's failure to take care contributed to the accident occurring b) the P's failure to take care contributed to the injury - i.e. its nature or extent Froom v Butcher [1976] QB 286 (CB 327)

? Facts: o o o

P suffered from multiple injuries when he was involved in a motor vehicle accident caused by D's negligence P was not wearing a seatbelt at the time of the accident and many of his injuries were attributed to this lack of care Although P was not negligent in causing the accident, contributory negligence could still be taken into account in relation to the cause of injury

? Held: Court held that bar his broken finger, P's injuries

were attributable to contributory negligence arising out of the failure to wear a seatbelt o Question is not what is the cause of the accident, rather, what was the cause of the damage o D need not show that the P's negligence was a cause of the accident in question, it is enough if her or his negligence contributed to the harm suffered as a result of the accident o It is a key requirement in establishing the defence, the D is able to show that an action specifically contributed to the loss or injury


? Determining apportionment based on what is 'just and equitable' involves a comparison of culpability

? This does not equate to moral blameworthiness
? Rather it is a comparison of each parties' degree of departure from their respective standards of care

? Relevant considerations might include: o The number of people put at risk by the failure to take care; o The obvious dangerousness of the act/omission;


Relative importance in causing the damage

Pennington v Norris (1956) 96 CLR 10 (CB 329)

? Facts: o P was struck by D's car as he was crossing the road at night o At trial, judge reduced P's damages by 50% on the grounds of contributory o o

negligence P appealed HC held that it would not interfere with the finding that P was guilty of contributory negligence

? Key question was: was the apportionment appropriate?
o Although the circumstances in which apportionment as between the parties

o o o

due to a successful defence of CF, the circumstance in which this apportionment can be challenged is rare, but this was one of the cases where it could be Trial judge had overlooked certain features, and the apportionment could not be supported There was a need to arise at a 'just and equitable' apportionment in relation to the damage, this must involve a comparison of the culpability of the parties Look at the degree of departure from the relevant standard of care of a reasonable person, you consider facts of the case:

? In this case, the P should have looked out o D was driving too fast on a misty, wet road o Greater degree of culpability to the D o Having regard to a comparison and all the circumstances, it was held that a fair and reasonable allocation of responsibility for damage done was P 20%
and D 80%, not 50-50%
Kelly v Bega Valley County Council (unreported, 13 Sept 1982, Court of Appeal (NSW) (CB 338) Relevant considerations might also include:

? The intrinsic danger: e.g. how many people put at risk
? The duration of departure from the standard of care
? The maturity of the actor (this is probably confined to cases involving minors) Summary

? Did the P fail to take reasonable care of themselves? (s 26)

o o

Determined according to the same principles as per breach (s62) Consider if relevant sudden emergency, anticipating another's negligence and minority.

? Was the P's harm partly a result of the P's failure to take reasonable care (s 26) o Determined according to the same principles as per causation (s62) o Consider if contribution was to accident or injury.
? What reduction in damages is just and equitable? (s 26) o Compare the degree of each parties' departure from their respective standards of care

Volenti non fit injuria (Voluntary Assumption of Risk) 'No injury is done to one who consents' or Voluntary Assumption of Risk. D has the burden of proof to establish that the P agreed to take responsibility for assuming the risk that had materialised Three requirements:

1. Knowledge: The P knew of the facts and circumstances that gave rise to the risk;

2. Understanding: The P fully appreciated the risk inherent in those facts; and

3. Voluntariness: The P freely and voluntarily accepted the risk that caused the injury.

Knew the Relevant Facts

? The test is a purely subjective one - it is a question of whether the P actually knew of the facts and circumstances giving rise to the risk
? Arguing that the P ought to know is insufficient
? The P's claim on their state of knowledge is not necessarily determinative - what the P actually knew is to be inferred from all the evidence Scanlon v American Cigarette Company Overseas Pty Ltd [1987] VR 289 (CB 344)

? Facts: o P alleged that she started smoking as a school girl aged 15 and continued to smoke 20 cigarettes a day until 1985

o D's were manufacturers and distributors of the brand of cigarette o She alleged negligence and that as a result she contracted lung cancer o D's defence was "if it was proved that the smoking of the cigarettes by P involved risk or injury then the P knew or ought to have known that

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