Chapter 13

Defences to negligence [103](284)Common law defences-def is alleging that the plaintiff was responsible in some way for causing the damage to him or herself. These defences can all be pleaded [103] Volenti non fit injuria Contributory negligence Illegality (including joint illegal enterprise) Action brought outside limitation period-not as common [104]

[104] Limitation periods Personal injuries- 3 years; s11 Limitations of Actions act 1974 Property damage- 6 years; s10 (1)(a)

[104](299) Volenti non fit injuria-Voluntary assumption of risk. There can be no injury to the willing Complete defence to a negligence action and denied recovery of damages Rootes v Shelton Acceptance of risk need not be expressed but can be implied Difficult defence to establish and therefore not commonly pleaded Defendant must prove the plaintiff; o Was fully aware of the risk involved in the activity (299) Smith v Charles Barker & Sons o Fully comprehended the nature and the extent of the risk involved o Voluntarily accepted the whole of that risk (300) Imperial Chemical Industries Ltd b Shatwell S14 CLA- a rebuttable presumption that a person is aware of obvious risks, reversing the normal onus of proof that a def prove the defence S13- Obvious risk- as being a risk that would have been obvious to a reasonable person in that position (300) S19- Obvious risk in dangerous activity Intoxicated defendant- s48(5) of the act provides volenti cannot be raised o Motor vehicle accidents (302) o Intoxication (302) o Sport and recreational activities (304)

[105](284) Contributory negligence-The pl failure to take reasonable care for his or her own safety in circumstances where this conduct contributed to his or her own injury Joslyn v Berryman (285). Full defence at common law! Williams v Commissioner for Road Transport

The def must prove: (286) The pl was at fault ie failed to act reasonably The failure to act reasonably contributed to or caused the pls loss The loss suffered was a reasonably foreseeable consequence of the pls failure to act reasonably o Children (287) o Intoxication (288) o Emergency (289) o Employment (290) o Breach of standard (290) o Causation (291) Fitzgerald v Penn o Reasonably foreseeable (292) o Apportionment (292) o Assessing Culpability (292) o Contributory negligence may beat a claim (293) o Failing to use a required safety device (294) o Intoxication & drugs (294) o Plaintiff intoxicated (295) o Plaintiff relies upon intoxicated defendant (296) o Apportionment (297)- reduce damages by 25% o Appeals (297)

Remedy- If the court is satisfied that the defence is established, the court must reduce the pls damages to what they think is equitable and just S24 CLA- allows a pl damages to be reduced by 100% of the court thinks its just and equitable S 10 (1) Law Reform Act- contributory negligence (285) Wrong- defined (286) Fault- defined (287) Emergencies- (289) EXCEPTIONS Last opportunity rule-The def had the last chance to avoid the harm but didnt Alford v Magee Agony of the moment principle- The pl may have had to act negligently due to the situation the def put them in Municpal Trammways Trust v Ashby (285)

[105](288) Contributory negligence & intoxication s47 CLA- the presumption that a pl, who is intoxicated at the time he or she is injured, may be been contributory negligence. May be rebutted though if the intoxication has nothing to do with the injury (s47(3))

s48- establishes the presumption of contributory negligence and a requirement of a reduction of damages of at least 25%. Can be rebutted as well s 48(3) [105](305) Illegality Both parties were engaged in an illegal activity at the time of negligence

(306) Joint illegal enterprise- Common law defence raised where both plaintiff and def are voluntarily involved together in an illegal or criminal act and the pl is inured as a result of that joint involvement Smith v Jenkins Can be viewed as a true defence Might extinguish the duty of care

[106](308) Illegal activity- if the pl suffered personal injuries while he or she was engaged alone in conduct that is an indictable offence, and that conduct materially contributed to the risk of the harm If defence is successful, the pl may receive no damages at all Does not always rule out duty of care Hackshaw v Shaw Indictable offence-Defined (308)

(309) Immunity from civil liability Inherent risks- under common law- a def is not liable for damage arising from an inherent risk (one that can be avoided) Woods v Multi-Sport Holdings Pty Ltd Rescue cases- if the def has placed a person or property in danger, Volenti will not usually cover an injured rescuer even if they knew of the risks Hyett v Great Western Railway Co Good Samaritans- common law can still see a good Samaritan liable even acting out of good faith. Legislation covers them more against it Public Safety entities- provides protection to persons when assisting a person in distress. S 26/27 of CLA Volunteers-is to be encouraged and legislation provides protection to volunteers. Its limited though and will not apply if a criminal offence is committed at the time of negligence or drug/alcohol impaired

(311) Exclusion of liability clauses A party may seek to modify the allocation of a risk by stipulating a reduction or even an exclusion, from liability When a party accepts the clause it becomes voluntary assumption of the risk

They are construed strictly and must either refer specifically o negligence or cover it necessarily by covering all bases of liability Davis v Pearce Parking Station Pty Ltd Clauses referring to economic loss but trying to cover personal injury Evans v Port of Brisbane Authority Must take reasonable steps to bring the clause to the Pls attention Macleay Pty Ltd v Moore

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