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Negligence Defence Notes

Law Notes > Tort I (Intentional & Negligence) Notes

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Defence Volenti Non Fit Injuria (voluntary assumption of risk) If a plaintiff has voluntary assumed the actual risk which causes the damage then this will be a complete defence. The defendant must prove the plaintiff actually knew of and appreciated the relevant risk: Morris v Murray

* However, the plaintiff's capacity to comprehend and appreciate the risk might be limited or impaired
Minor, mental illness: Waverley Council v Ferreira
As a result of the plaintiff's own fault: intoxicated: Romeo v Conservation Commission of NT
Lead to a contributory negligence One way to ensure knowledge of a risk on the part of the plaintiff is for the defendant to give a warning of a particular risk

* Warning must have been of the particular risk
If the danger is within the control of the defendant, only warning itself may not be sufficient to absolve the defendant's liability.
Especially those who vulnerable or children: Doubleday v Kelly CLA s 5F - 5I: obvious risks

* s 5F: Obvious risk
Objective test, obvious to a reasonable person in the position of the plaintiff: Romeo v Conservation Commission of NT
According to common sense: Hugh v Lord Advocate
Even the opportunity to occur is not great: Wagon Mound (No 2)
Risk (condition to give risk to that risk) not prominent

* s 5G: Injured person presumed to be aware of the risk (the type or the kind of the risk).

* EXCEPTIONS: minor: Waverley Council v Ferreira; Doubleday v Kelly
s 5H: No duty to warn of obvious risk: Romeo Conservation Commission of NT, EXCEPTIONS:
- Requested by plaintiff
- Requested by law
- Defendant is a professional under the duty to warn (s 5P): Rogers v Whitaker

* s 5I: No liability to warn inherent risk (e.g., sports): Rootes v Shelton
Inherent risk is a risk cannot be avoid by due diligence, therefore might be no breach: Woods v Multi Sports Holdings Pty Limited. CLA s 5J - 5N: recreational activities and inherent risks

* s 5K: "dangerous recreational activities" involves a significant risk of physical harm,

* "Recreational activities" including "movies".

* s 5L: no liability for harm suffered from obvious risk of dangerous recreational activity: Fallas v Mourlas

* s 5M: when the risk is warned, no liability. Warning can be given to :
The plaintiff himself/herself. (1)
The person who accompanies or controls the incapacity person. (shall not be an incapable person) (2)(a)
The parents of the incapable person. (whether or not they control or accompany the incapable person) (2)(b) Steps for working our an obvious risk in problem ("recreational activities")
Whether the requirements of s 5K are satisfied
recreational activity
significant risk of physical harm

Whether the risk is obvious
s 5F: according to common sense, a reasonable person in the position of the plaintiff would think
If the risk is obvious, s 5L is satisfied, in terms of a dangerous recreational activity; or
Warning is not required, according to s 5H. (depends on the question) MACA 1999 s140: voluntary assumption of risk in motor accident: not available
s 140 (2) unless they are engaged in motor racing Sports
Participation in sport is violenti non fit injury for inherent risk of the game include foreseeable rule breaking: Rootes v Shelton Contributory Negligence Whether the plaintiff is contributory negligence is question of fact: Caterson v Commissioner of Railways Used to be a complete defence by applying the qualification of "last opportunity rule": March v Stramare
Now is not a complete defence, apportionment under s9 of Law Reform (Miscellaneous Provisions) Act 1965. If the plaintiff and the defendant are both negligent then there can be no 100% reduction in damages available: Wynbergen v Hoyts Corp
Any apportionment will take account of the respective fault of the parties and the degree of each party's departure from the standard of the reasonable person: Pennington v Norris
However, now claims can be defeated under s 5S of the CLA if "fair and equitable". Contributory negligence remains the only basis on which an plaintiff will not be fully compensated for his loss.
In other cases, the plaintiff receives all or nothing. MACA 1999, s 138(2), contributory negligence is awarded

* Intoxicated passenger

* Voluntary passenger with intoxicated driver

* Not wearing a seat belt

* Not wearing a protective helmet CLA s 5R - 5T: contributory negligence

* s 5R: standard of contributory negligence: a reasonable person in the position of the plaintiff knew or ought to have known the risk

* s 5S: claims can be defeated as a 100% reduction of damages.

* s 5T: contributory negligence-claims under the Compensation to Relatives Act available, however, damages will be reduced proportionately. CLA s 30(3): nervous shock claim

* A nervous shock claim by a person who sees another person killed, injured, or put in peril is also to be reduced by the contributory negligence of the victim. Plaintiff's Unlawful Conduct Serious offences & mental illness (CLA s 51, 54, 54A)

* s 54: criminals committing serious offence not to be awarded damages: Gala v Preston: Miller v Miller
Claim not necessarily defeated by plaintiff's unlawful conduct where the provision is for the purpose of punishing certain acts that are not serious offence: Henwood v Municipal Tramways Trust (South Australia):

* s 54A: loss caused by mental illness, no damages for loss of earning and non-economic loss Self defence and intoxication: CLA s 51-53, 47-50

* Section 50 of the CLA, as interpreted in Russell v Edwards, has elevated contributory negligence to a complete defence where the relevant conduct of the plaintiff consists of self-induced intoxication, which is back to the rule in Butterfield v Forrester.

Voluntary Assumption of Risk

1. The plaintiff and his friend drank alcohol during the whole afternoon and then decided to go on a flight.

2. The plaintiff drove the car to the airfield and helped to start and refuel the aircraft for his friend.

3. The aircraft was piloted by the friend.

4. Shortly after taking off , the aircraft crashed, killing the pilot and severely injuring the plaintiff.

5. In an action against the pilot's personal representatives for personal injuries, the judge gave the judgements for the plaintiff, held that the defendants had succeeded on their plea of contributory negligence but not their alternative plea of volenti non fit injuria. On appeal by the defendants.

1. The appellant perform dangerous sport --- water skier, operation known as "crossovers".

2. The activity would lead to the appellant temporarily blinded by spray.

3. Upon he could see again, the appellant was faced with a stationary boat which was inevitably collided.

4. As a consequence, the appellant suffered serious injury. The extent of the voluntary assumption of the inherent risk of a sports, not to those accidental risk that cannot be observed by the player due to the nature of the sports itself.

1. Both the appellant and the respondent took part in the activity of hunting kangaroos by using firearms.

2. The activity requires spotlighting where a spotlight was required to attach to a motor vehicle and involved alighting from and reentering the vehicle.

3. The appellant did not unload the firearm before entering the vehicle.

4. The respondent suffered injury as a result of the discharging of the firearm. Two issues addressed in Appeal:

1. The activity being undertaken at the time was a "dangerous recreational activity" as defined by s 5K of the CLA.
To address whether a "recreational activity" is "dangerous", it is necessary to determine whether the recreational activity "involves a significant risk of physical harm".

2. The respondent "did suffer harm as a result of the materialisation of an obvious risk of a dangerous recreational activity". (s 5L) Step to prove s 5K Whether the specific activity is a "dangerous recreational activity", s 5K
if established
Whether the behaviour/facts given reflects an obvious risk on the part of the plaintiff
- An obvious risk means a risk obvious to a reasonable person in the position of that person
- common sense
- even the opportunity is small
if established, s 5L satisfied

General Rule A claimant who has assumed the risk of injury has no action if the injury occurs.

* Knowledge of the risk of injury is not sufficient;
There must also be (even if only by implication) full and free consent to bear the risk. While the voluntary assumption of a risk is in all circumstances a complete defence to an action. Consent must be freely given and based on a full understanding of the risk. Volenti non fit injuria Voluntary Assumption of Risk Morris v Murray [1991]
In order to support a plea of volenti non fit injuria, the defendant must establish that the plaintiff at the material time knew the nature and extent of the risk and voluntarily agreed to absolve the defendant from the consequences of it by consenting to the lack of reasonable care that might produce the risk. It is common ground and long established that knowledge of the risk is not sufficient but there must also be consent to bear the consequence of it.

* The plaintiff willingly embarked upon the flight, knowing that the pilot was so drunk as to be incapable of discharging a normal duty; that the danger in embarking upon the flight was both obvious and great and the plaintiff was not so drunk as to be incapable of appreciating the nature and extent of the risk involved, and, therefore, he was to be taken to have fully accepted the risk of serious injury and implicitly discharged the pilot from liability for negligence in relation to the flying of the aircraft and that, accordingly, the maxim volenti non fit injuria applied as a defence to the plaintiff 's claim. Voluntary Assumption of Risk & Inherent Risk Rootes v Shelton (1967) The law of negligence applies as between the participants in a sport or game. However, participants in a sport or game voluntarily assume such risk of injury as is inherent in the activity. By engaging in a sport or pastime the participants may be held to have accepted risks which are inherent in that sport or pastime: the tribunal of fact can make its own assessment of what the accepted risks are: but this does not eliminate all duty of care of the one participant to the other....If it is said that a participant in a sport or pastime has voluntarily assumed a risk which is not inherent in that sport or pastime so as to exclude a relevant duty of care, it must rest on the party who makes that claim to establish the case in accordance with recognized principles.

* The driver or observer owes no duty in respect of the unobservable obstruction. But neither the possibility that the driver may fail to avoid, if practicable, or, if not, to signal the presence of an observed or observable obstruction nor that the driver will two the skier dangerously close to such an obstruction is, a risk inherent in the nature of the sport. In this connexion an observable obstruction is one which would be observed by reasonable attention by the driver and observer to their respective tasks. Judgement for the appellant. The Relevance of Obvious Risk Fallas v Mourlas (2006) Though the shooting kangaroo at night by using firearms is a "dangerous recreational activity" as defined in s 5K, the risk of accidental discharge of gun while sitting in the vehicle is not proved by the appellant as an obvious risk of this kind of dangerous recreational activity as defined in s 5F, therefore, S 5L is not applicable to the appellant. (i) The defendant (appellant) bears the burden of proof in regard to proof of the elements contained within s 5L of the Act, that is, the harm suffered by the plaintiff is a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff. (ii) An objective test is required in determining whether, in terms of s 5K of the Act, a recreational activity is "dangerous". (iii)For the purposes of the definition of "dangerous recreational activity" in s 5K the phrase "a significant risk of physical harm": a. lays down a standard lying somewhere between a trivial risk and a risk likely to materialise;

b. imports an objective consideration of the seriousness of the harm which might occur. (iv) Pursuant to s 5L of the Act, the dangerousness of the recreational activity is to be determined by the activities engaged in by the plaintiff at the relevant time; all relevant circumstances that may bear on whether those activities were dangerous in the defined sense include relevant matters personal to the plaintiff and the surrounding circumstances. (v) Where the recreational activity engaged in was activity referred to as "spotlighting" or shooting kangaroos at night with the aid of a spotlight attached to a motor vehicle and involved alighting from and re-entering the vehicle with a loaded firearm, which discharged within the vehicle before being unloaded, the activity, carrying as it did a significant risk of physical harm, was a "dangerous activity" for the purposes of s 5K of the Act. (vi) The word "obvious" in s 5F of the Act, means that both the condition and the risk are apparent to and would be recognised by a reasonable person, in the position of the plaintiff, exercising ordinary perception, intelligence and judgment.

* The defendant (appellant) failed to establish that there was a significant risk of injury occurring from the accidental discharge of a firearm while shooting kangaroo at night, in the circumstances in which the plaintiff was involved.
Therefore, the defendant failed to establish that the recreational activity in which the plaintiff was engaged in on the night in question was a "dangerous recreational activity" for the purpose of s 5L,
i.e., risk of accidental discharge of gun while sitting in vehicle was not an obvious risk of dangerous recreational activity as defined in s 5F.

* Appeal dismissed, the appellant is liable for the injury suffered by the plaintiff. CIVIL LIABILITY ACT (2002) (NSW) PART 1A -- NEGLIGENCE Division 4 -- Assumption of Risk Need to think if the person suffered harm is a child Objective test Note: even low probability of occurring, might be an obvious risk.

Presumption that person will be aware of obvious risk
Risk no need to be precise, type / kind is sufficient. Need to think if the person suffered harm is a child

s 5P

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 occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable. 5G Injured persons presumed to be aware of obvious risks (1) In proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. (2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk. 5H No proactive duty to warn of obvious risk (1) A person ( "the defendant") does not owe a duty of care to another person ( "the plaintiff") to warn of an obvious risk to the plaintiff. (2) This section does not apply if: (a) the plaintiff has requested advice or information about the risk from the defendant, or (b) the defendant is required by a written law to warn the plaintiff of the risk, or (c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant. (3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection. 5I No liability for materialisation of inherent risk (1) A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk.

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