Defenses To Negligence - Torts Law

Class 17- Defences to negligence:

• The plaintiff’s claims can be defeated or damages can be reduced through contributory negligence. The key defences are:

  • The plaintiff’s pre-existing knowledge about the defendant’s incapacity or pre-existing knowledge of the risk associated with the state of affairs which give rise to the negligence.

  • The plaintiff’s failure to take reasonable care of their own safety.

  • The plaintiff’s unlawful conduct.

  • The plaintiff’s delay in initiating proceedings (statute of limitations).

• The defendant must prove this based on the balance of probabilities. They can argue that there is no breach of duty because they did all that could be reasonably done to avoid the harm or the negligence did not cause the plaintiff’s damage. They can also argue that the plaintiff was contributory negligent.

Volenti non fit injuria (when there is consent there is no injury) - Voluntary assumption of risk:

• The reason for this rule where the plaintiff who takes the risk of injury upon himself has no claim, comes from Reeves v Commissioner of Police (2001). When a person does not have a disability then they have a choice about their own fate. This choice must be free and unconstrained. Those who are mental or children do not have a choice. Lord Hobhouse said that being human means you have autonomy and if you don’t have this then you are not human. If you make a decision you can’t complain about the consequences. Voluntary assumption of risk must be free and unconstrained.

• Actual knowledge, you have to act voluntarily and full appreciation of the risks involved. These are the aspects for volens.

• Three different areas of cases talked about: general (658), employment (663) and sport and recreation (664).

• The first requirement for volens is actual knowledge.

• In Arvan v Gusakoski (2006) the passenger did not act voluntarily because they had little time to consider the alternatives when confronted by a drunk driver. The courts usually find that volens does not apply usually on the ground that the defendant did not fully appreciate the risk.

• Volens used to be able to defeat the actions of rescuers against defendants whose negligence created the danger that made the rescue necessary. But this was brought to an end by Haynes v Harwood (1934). It was found that the rescuer did not choose or consent to the risk.

Volens and its relationship to other elements of negligence:

• There are very few instances where it successfully defeats a plaintiff’s claim. Cases in this area are better seen as those where there has been no negligence because the harm could not have been avoided by the use of due care.

• E.g. if an employee consents to inherent risks in the employment.

• It can also be resolved by looking at the scope of the defendant’s duty instead.

Volens- assuming the risk- the drunken driver and passenger

• In Insurance Commissioner v Joyce it was found by the HC that where a person accepts a lift by an obviously drunk person they cannot make a claim. This is because they consented to the risk of injury (volens), the person could not be expected to drive like a reasonably prudent driver and the passenger failed to take care of their own safety. There is contributory negligence that can be used in these situations so the plaintiff will not be completely barred from making a claim.

• But courts will often say that they did not know of the risk or did not fully appreciate the risk. They will not apply volens because an absolute barrier to recovery is unfair.

• In Insurance Commissioner v Joyce (1948) Dixon J said that if the passenger has no real or practical choice about getting into the car then they do not voluntarily consent. Latham CJ reasoned that in the case of a drunken driver all the standards of care are ignored and they cannot be expected to act sensibly so the other person just chances it.

• But the defendant has to show that the plaintiff consented to the risk.

• In Grent Diver v Neville (1953) the plaintiff was riding a pillion on the defendant’s motor cycle when it collided with a car. The motor cycle headlight was not working. The plaintiff knew this. It was found that he accepted the risk as to the failure of the headlight he did not accept the risk of the whole field of negligent acts. The defendant had to keep a look out for other vehicles. Courts are quick to say that they consented to a different risk than the one that occured.

• Personal injury claims arising out of the use of motor vehicles use contributory negligence and not volens in NSW.

Employee injuries:

• Another illustration of court’s unwillingness to apply the volens defence. An employee might not be in the position to complain or take steps to avoid the risk of injury (Smith v Charles Baker (1891).

• The employee has to agree to waive their right to sue the employer even if they knew of the risk.

• In Bowater v Rowley Regis Corp (1944) Scott LJ said a man cannot be truley willing unless he is in a position to choose freely. There must be full knowledge and the understanding that nothing will interfere with the freedom of his will.

• In Patrick Stevedores (no 1) Pty Ltd v Vaughan (2002) volens did not apply where an employee attending work during a strike suffered nervous shock from agressive picketors.

• In Imperial Chemical Industries Ltd v Shatwell (1965) the plaintiff was using explosives and refused to use them in a shelter as the employer had told them. The employer was not to blame because they created the danger. This is a very exceptional case where the statutory duty was put on the employee. This is not applied beause regulations now put the burden on the employer.

• In Smith v Baker (1891) Lord Watson said that there are many situations where it would be impossible to ensure safety to workmen. The workman must rely on their own skill and nerve and the risk is with him.

• In NSW volens doesn’t apply to claims which the Workers Compensation Act 1987 applies.

Sporting events and recreational activities:

• In Wooldridge v Summer (1963) where no negligence is proved the plaintiff takes the risk because there is no breach of duty owed to him. An experienced horseman lost control of his horse in a hunting competition at a horse show and a photographer, the plaintiff, was run over. A participant in a sporting event is volens to the risks inherent in the game.

• So ask the question was the defendant’s conduct that caused the injury to the plaintiff reasonable in all the circumstances?

• Where risks are obvious to a reasonable observer a plaintiff is more likely to fail because the defendant has not breached its duty of care.

• In Woods v Multisport Holdings (2002) an indoor cricketer was struck in the eye. There was no negligence by the owner of the facility because the risk was obvious.

Volens and the CLA:

• The negligence review panel final report suggest how they could encourage greater use of the defence of the assumption of risk. They could firstly make it the plaintiff’s burden of proof to show on the balance of probabilities that they were not aware of the risk. Otherwise it will be assumed that they did know. Or they should not look at whether they were aware of the exact risk but of the risk type or the kind of risk.

• If the risk is obvious then they should be taken to have been aware of it unless they prove on the balance of probabilities that they were not aware. An obvious risk would be one which would be obvious to a reasonable person in the plaintiff’s position. A risk can be obvious even if there is low probability. The test should be the type of risk.

• These IPP recommendations have been enacted in most jurisdictions. Obvious risk knowledge is in s. 5F. The CLA changes the common law view of volens. In common law there is a subjective test so the plaintiff could argue that they didn’t know about the risk. Knowledge is assessed objectively in the CLA taking into account the plaintiff’s knowledge and circumstances.

• In Angel v Hawkesbury City Council (2008) the test is of a reasonable child for children. But the risk is not obvious to a child jumping with rollerskates on a trampoline in Doubleday v Kelly (2005).

• The voluntary undertaking of the risk still applies which can stop something being too harsh. They can find that the plaintiff did not accept the risk.

• There is no duty of care in relation to recreational activities where a risk warning has been given even if the person did not read or understand it. CLA s 5N.

• Dangerous recreational activities are when there is no cliam for injuries of an obvious risk and knowledge is not relevant. It involves a significant risk of harm. The risk must be more than trivial but does not need to be likely.

• In Fallas v Mourlas the plaintiff succeeded when he was shot in the car by a man kangaroo shooting. The risk came from the conduct of others so the focus was on whether it was an obvious risk and not if it was a dangerous recreational activity.

• The defendant is not liable for the materialisation of an inherent risk unless there is a duty to warn of that risk. An inherent risk is one that cannot be avoided by the exercise of due care and skill.

• In NSW personal injury claims from motor vehicles are treated as contributory negligence cases and not volens.

CLA Division 4 Assumption of Risk

5F Meaning of “obvious risk”

(1) For the purposes of this Division, an "obvious risk" to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.

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

(3) A risk of something...