Torts B Summary Defences Notes

Defences

1. Contributory Negligence

   1. It can be a complete defence Section 63: If it is just an equitable, damages can be reduced by 100%

   2. Identify the PLAINTIFF’s alleged negligent act that caused/contributed to their harm

   3. Did the P fail to take reasonable care of themselves?

      1. Section 62: (1) determined according to the same principles as breach

         • (a) The standard of care required of a 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

      2. Section 26: In order to show contributory negligence the P must have failed to take reasonable care for her safety (breach), and

      3. Was there a duty of care?

         • A person usually owes a duty of care to themselves

         • GO BACK TO DUTY OF CARE

      4. Was there a breach of that duty?

         • GO BACK TO BREACH: what is the standard of care and did P’s actions fall short of that standard

         • In determining breach of duty, look at (amongst other things):

           • Sudden emergency (person taking a risk)

             1. Where D’s negligence places P in situation of sudden emergency, level of care required is lower

             2. Allows a greater deal of leniency in addressing the P’s behaviour Caterson v Commissioner for Railways

           • Situation of inconvenience

             1. If the degree of inconvenience is high and the risk is low, level of care required is lower and vice versa

             2. “If the P has been placed in a situation of danger or inconvenience as a result of the D’s negligence, then whether the P’s action is reasonable is determined by comparing the degree of inconvenience against the risk taken to avoid it Caterson v Commissioner for Railways

           • Anticipating Negligence: In determining how to act with care, a reasonable person would account for the possible carelessness (and negligent acts) of others Jones v Livox Quarries

           • Does not apply when it is ‘gross negligence’ or carelessness of others that could not be anticipated Jones v Livox Quarries

           • Minority

             1. When looking at the reasonableness of a child, you look at the standard of a reasonable child the same age as P and their intelligence, experience and development Kelly v Bega Valley County Council

                1. However, if the child suffered from a mental or physical impairment, that might be taken into account in determining standard of care

   4. Was the P’s harm partly as a result of the P’s failure to take reasonable care?

      1. Section 62: (1) determined according to the same principles as breach

      2. Section 26: This failure to take reasonable care must contribute to her harm (causation).

      3. Causation

         • GO BACK TO CAUSATION

         • Either the P’s failure to take care contributed to the accident occurring or contributed to the injury (I.e. it’s nature or extent

         • Where the accident and injury are caused in different circumstances, the question is what is the cause of the damage, not the cause of the accident. It is enough to show that his or her negligence contributed to the harm suffered as a result of the accident Froom v Butcher

      4. Remoteness

         • GO BACK TO REMOTENESS

   5. What reduction of damages is just and equitable?

      1. Section 26: 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: (b) damages recoverable must be reduced to be just and equitable, having regard to the claimant’s share in the responsibility for the damage.

      2. Compare the degree of each parties’ departure from their respective standards of care Pennington v Norris. Look at:

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

         • The duration of departure from the standard of care Kelly

         • The maturity of the actor Kelly

         • The obvious dangerousness of the act/omission

         • Relative importance in causing the damage

         • The culpabilities of the parties Pennington v Norris

      3. Conclude: “P was 20% responsible for his/her harm and therefore his/her damages will be reduced by 20%”

2. Volenti non fit injuria (Voluntary Assumption of Risk) total defence

   1. Characterise the activity and the risk alleged to be assumed

   2. Was it an obvious risk?

      1. S 54 (1) if the risk of harm is an obvious risk, the person who suffered harm (P) is presumed to have been aware of the risk, unless the person proves on the balance of probabilities that the person was not aware of the risk

      2. Section 53(1) an obvious risk is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.

         • (2) include risks that are patent or a matter of common knowledge.

         • (3) can be an obvious risk even though it has a low probability of occurring.:

         • (4) A risk is an obvious risk even if the risk) is not prominent, conspicuous or physically observable.

         • (5) To remove any doubt, it is declared that a risk from a thing, including a living thing, is not an obvious risk if the risk is created because of a failure on the part of a person to properly operate, maintain, replace, prepare or care for the thing, unless the failure itself is an obvious risk.

      3. If P cannot rebut the presumption, D will only need to establish P voluntarily incurred the risk for the defence to succeed

      4. If P can rebut the presumption, D must prove following three elements of the defence:

   3. Knowledge: That P knew of the facts and circumstances that gave rise to the risk

      1. Subjective test: question of whether P actually knew of the fact and circumstances. You need actual, not constructive knowledge Scanlon v American Cigarette Company

      2. Inferred from all the evidence. When it has been made clear that a P should not do something in a certain way, this will make it easier for D to prove defence ICI v Shatwell

   4. Understanding: That P fully appreciated the risk inherent in those facts

      1. Subjective test

      2. If P appreciates that the risk – though remote – might eventuate, that is sufficient. P need not believe it will in fact materialise ICI v Shatwell

      3. Must be a sufficiently full appreciation. If you are intoxicated you are...

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