Torts B Extended Defences Notes

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:

  • 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

• Facts:

  • 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

  • He must take into account the possibility that other might be careless

  • Gross negligence would not be anticipated

Minority

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

• Facts:

  • 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

• Held:

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

  • 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

Causation

• 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:

  • 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

  • Question is not what is the cause of the accident, rather, what was the cause of the damage

  • 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

  • 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

Apportionment

• 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:

  • The number of people put at risk by the failure to take care;

  • The obvious dangerousness of the act/omission;

  • Relative importance in causing the damage

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

• Facts:

  • P was struck by D’s car as he was crossing the road at night

  • At trial, judge reduced P’s...

Buy the full version of these notes or essay plans and more in our Torts Law Notes.