1. TORTS LECTURE DEFENCES IN NEGLIGENCE

2. INTRODUCTION: FACTORS THAT MAY UNDERMINE P’S CLAIM The plaintiff's: –pre-existing knowledge about the defendant’s incapacity; –pre-existing knowledge of the risk associated with the state of affairs that gave rise to the negligence –failure to take reasonable care of his or her own safety –unlawful conduct

3. DEFENCES Contributory Negligence Voluntary Assumption of Risk Diminished standard of care Unlawful conduct/illegality

4. DIMINISHED STANDARD OF CARE Insurance Commissioner v Joyce: –‘the case may be described as involving a dispensation from all standards of care’, so that, … there was no breach of duty by the defendant...’ ‘Diminished standard of care’ is technically not a defence as such

5. THE NATURE OF CONTRIBUTORY NEGLIGENCE: THE NATURE OF CONTRIBUTORY NEGLIGENCE: Joslyn v Berryman (Per (McHugh J): At common law, a plaintiff is guilty of contributory negligence when the plaintiff exposes himself or herself to a risk of injury which might reasonably have been foreseen and avoided and suffers an injury within the class of risk to which the plaintiff was exposed. In principle, any fact or circumstance is relevant in determining contributory negligence if it proves, or assists in proving, a reasonably foreseeable risk of injury to the plaintiff in engaging in the conduct that gave rise to the injury suffered The test of contributory negligence is an objective one

6. Contributory Negligence: The nature of the P’s conduct The defence is established if the defendant proves the plaintiff guilty of conduct which amounts to a failure to take care for his/her own safety To plead the defence, D bears the onus of proof and must prove the requisite standard of care that has been breached by P.

7. The Substance of Apportionment Legislation (Law Reform (Miscellaneous) Act 1965 (NSW) s10 Where any person suffers damage as the result partly of his/her own fault and partly of the fault of any other persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering damage, but damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimants share in the responsibility for the damage

8. CIVIL LIABILITY ACT Part 8 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. 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.

9. Voluntary Assumption of Risk In general where P voluntarily assumes the risk of a particular situation, she/he may not be able to maintain an action against D for negligence in relation to that situation The elements –P must have perceived the danger –P must have fully appreciated the danger/known –P must have voluntarily accepted the risk What constitutes acceptance of the risk?

10. RISKS UNDER THE CIVIL LIABILITY ACT RISKS OBVIOUS INHERENT

11. VAR IN THE CIVIL LIABILITY ACT (Division 4, S5F) (1)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. S 5I(2) An inherent risk is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill.

12. Qualifications Under s5G(1) ’[i]n determining 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’

13. under s5H(1) the defendant ‘does not owe a duty of care to another person ( "the plaintiff" ) to warn of an obvious risk to the plaintiff The defendant retains the duty to warn of obvious risks in the following cases: –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

14. Recreational Activities: Obvious Risks As a matter of law, there is a point at which those who indulge in pleasurable but risky pastimes must take personal responsibility for what they do. That point is reached when the risks are so well known and obvious that it can reasonably be assumed that the individuals concerned will take reasonable care for their safety (Prast v The Town of Cottesloe Ipp J )

15. CLA: S5L provides that the defendant ‘is not liable in negligence for harm suffered by another person ("the plaintiff") as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff’ s5L(2) specifically stipulates that the s5L(1) exclusion of liability for harm suffered as a result of obvious risk associated with recreational activities ‘applies whether or not the plaintiff was aware of the risk’.

16. INHERENT RISK S5I(1) A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk.

17. PRESUMPTIONS OF AWARENESS OF OBVIOUS RISK (s5G) (1) In determining 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.

18. NO PROACTIVE DUTY TO WARN OF RISKS Under the legislation D has no duty to warn P of an obvious risks except where: –(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.

19. RISKS IN RECREATIONAL ACTIVITIES (CLA DIVISION 5) S5K: "dangerous recreational activity" means a recreational activity that involves a significant risk of physical harm "recreational activity" includes: –(a) any sport (whether or not the sport is an organised activity), and –(b) any pursuit or activity engaged in for enjoyment, relaxation or leisure, and –(c) any pursuit or activity engaged in at a place (such as a beach, park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure. S5L: No liability for harm suffered from obvious risks of dangerous recreational activities

20. Case Law on Risks in Recreational Activities) Fallas v Mourlas [2006] NSWCA 32 Falvo v Australian Oztag Sports Association & Anor [2006] Aust Tort Reports 81-831 (2 March 2006)

21. THE THREE RELATED DEFENCES –Diminished standard of care –Contributory negligence –Voluntary assumption of risk

22. ILLEGALITY The traditional Common Law position on illegality is usually summed up in the Latin maxim ex turpi causa non oritur action which means that “no cause of action may be founded on an illegal act”

23. Illegality There is no general principle of law that a person who is engaged in some unlawful act is to be disabled from complaining of injury done to him by other persons, either deliberately or accidentally. He does not become a caput lupinum (an outlaw) ( per Latham CJ: Henwood v Municipal Tramsways Trust

24. The Test to Disentitle the Defence In each case the question must be whether it is part of the purpose of the law against which the the P has offended to disentitle a person doing the prohibited act from complaining of the other party’s act or default Italiano v Barbaro (injury sustained while parties were in the process of looking for a spot to stage accident)

25. Illegality under the Civil Liability Act Section 54 –(1) A court is not to award damages in respect of liability… if the court is satisfied that: –(a) the person whose death, injury or damage is the subject of the proceedings was, at the time of the incident that resulted in death, injury or damage, engaged in conduct that (on the balance of probabilities) constitutes a serious offence, and –(b) that conduct contributed materially to the risk of death, injury or damage

26. The Scope of the section The section applies ‘whether or not a person whose conduct is alleged to constitute an offence has been, will be or is capable of being proceeded against or convicted of any offence concerned’

27. Self-Defence against Unlawful conduct: (Part 7 CLA) S52:The legislation provides immunity to the defendant who causes damage to the plaintiff while acting in self-defence in circumstances where the plaintiff’s conduct that provoked the act of self- defence was unlawful.

28. Self-Defence: The Scope S52(2)The defence is only available ‘if and only if’ at the time of the relevant act, the defendant believed the conduct was necessary: –(a) to defend himself or herself or another person, or –(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or –(c) to protect property from unlawful taking, destruction, damage or interference, or –(d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass, and the conduct is a reasonable response in the circumstances as he or she perceives them

29. Self-Defence: The Scope S54: Where D’s conduct is judged to be an unreasonable response ‘a court is nevertheless not to award damages against the person in respect of the conduct unless the court is satisfied that: (a) the circumstances of the case are exceptional, and (b) in the circumstances of the case, a failure to award damages would be harsh and unjust