Defences to negligence

Defences to negligence

1. s26 WA

   • (1) If a person (the claimant) suffers damage as the result partly 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 extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage.
   • (2) Where damages are recoverable by any person by virtue of sub-section (1) subject to such reduction as is therein mentioned, the court shall find and record the total damages which, apart from any limitation referred to in sub-sections (1B) and (1C), would have been awarded, if the claimant had not been guilty of contributory negligence.
   • (4) Where any person dies as a result partly of his or her failure to take reasonable care (contributory negligence) and partly of the wrong of any other person or persons an action brought by the dependants of the first-mentioned person under Part III of this Act shall not be defeated nor shall any damages recoverable by those dependants under that action be reduced by reason of that first-mentioned person's contributory negligence.
   • (6) Where any case to which sub-section (1) of this section applies is tried with a jury, the jury shall determine the total damages which would have been recoverable if the claimant had not been guilty of contributory negligence and the extent to which those damages are to be reduced.

2. s25

   • ‘wrong’ is defined as: an act or omission that-- (a) gives rise to a liability in tort in respect of which a defence of contributory negligence is available at common law; or (b) amounts to a breach of a contractual duty of care that is concurrent and co-extensive with a duty of care in tort.

3. 1) was the plaintiff negligent

   • where P fell below the standard of care that a reasonable person is expected to excersize for their own safety
   • Section 62(1) of the Wrongs Act (recently enacted) provides that the principles that are applicable to determine whether the defendant has breached a duty of care are also applicable to determine whether the plaintiff has been contributorily negligent.
     • Section 62(2)(a) provides that the requisite standard of care is that of a reasonable person in the position of the plaintiff (objective) Joslyn v Berryman
       • Section 62(2)(b) provides that ‘the matter is to be determined on the basis of what that person knew or ought to have known at that time’.( additional knowledge that he or she actually has. Therefore, a plaintiff with special knowledge of the risks might be held to higher standard than the ‘normal’ reasonable person in his or her position. )
   • In determining whether the plaintiff failed to exercise reasonable care for her own safety the court recognises that the plaintiff can reasonably foresee that others will act negligently: Braund v Hemming
   • child same age; kelly v bega valley county council
   • Where the defendant’s negligent conduct has placed the plaintiff in a position of danger or inconvenience, the plaintiff’s response will be judged in the light of the pressure of the circumstances not be found to have been contributorily negligent even though there was another course of action that could have been taken that would have avoid the injuries: see, example, Catterson v Commissioner for Railways
   • employement; courts relectant to find contributory; mclean v tedman

4. 2) was P negligence a cause of their injuries?

   • no reduction should be made where the same injuries would have occured regardless; Froom v butcher

5. 3) what extent should damages be reduced

   • a) The ‘culpability’ of each party in terms of their respective departure from the standard of the reasonable person, and
     • eg. driver/pedestrian 20-30% pennington v norris
     • where has put others at risk 70% march v stramare drunk & speending
   • b) The relative importance of the acts of the parties in causing the injuries.
     • where D caused injury but worsened by P negligence 20-30%; jones v livox quarries ltd
     • if p negligence exacerbratedthe injuries that were sustained 10-15% frrom v butcher
   • , s 63 now provides that ‘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’. In the Ipp Report, it was recognised that it would be rare in practice for damages to be reduced by more than 90%.

6. voluntary assumption of risk= complete defence but rearely used; imbree v Mcnelly

   • p must know; (a) knows of all the facts constituting the danger, (b) appreciates the exact nature and extent of the danger, and (c) freely and willing agrees to assumes the risk of injury from the dangerous activity. (Imbree v McNeilly).
     • P must accept risk of injury that eventuated, not other risks that did not; kent v scanntini
   • obvious risk
     • Section 54 applies where the risks are ‘obvious’, and reverses the onus of proof. Section 54(1) provides that: If, in a proceeding on a claim for damages for negligence, a defence of voluntary assumption of risk (volenti non fit injuria) is raised and the risk of harm is an obvious risk, the person who suffered harm 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.
       • assumed to know unless can prove they didn't
     • defined in s 53 as follows: (1) For the purposes of section 54, 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. (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.
     • 54(2) Sub-section (1) does not apply to— (a) a proceeding on a claim for damages relating to the provision of or the failure to provide a professional service or health service; or (b) a proceeding on a claim for damages in respect of risks associated with work done by one person for another.
   • druck drivers and passenger
     • P assumes volluntary assumes risk when fully appreciates the extent of intoxication if drunk thereselves then no assumption; cf morris v murray
       • reduction around 20-30% for a plaintiff who accepts a lift with an intoxicated driver. ;Joslyn v Berryman

7. exclusion/disclaimer clauses

   • Section 60 of the ACL provides a consumer guarantee that services are rendered with due care and skill. Any clause of a contract that attempts to exclude this statutory consumer guarantee is rendered void:
   • ‘Recreational services’ are defined in s 22(4) of the FTA as: ‘services that consist of participation in – (a) a sporting activity or a similar leisure-time pursuit (b) any other activity that: (i) involves a significant degree of physical exertion or physical risk (ii)is undertaken for the purposes of recreation, enjoyment or leisure.’
     • Recreational service providers can now exclude liability, provided they bring the term to the attention of the purchaser prior to the supply of the services: see s 22(2)(e).
   • vic; prescribed forms look to sharons notes schedule 2
   • gross negligence can not be excluded 'the act or ommission was done or omitted to be done with reckless disregard, with or without consciousness, for the consequences of the act or omission 22(3)(b) FTA