defences cases

contributory negligence cases

• pennington v norris

• podreberek v aust iron and steel

pennington v norris facts

• plaintiff was knocked down and severely injured by a car driven by the defendant

• question was whether the 50% CN was correct

• apportionment was overturned as the circumstances such as it being during night with low visibility meant that the driving was comparatively more dangerous

pennington v norris relevance

• culpability pointing away from contributory negligence

podreberek v aust iron and steel facts

• plaintiff was injured in a workplace accident due to his employers negligence

• jury found the plaintiff guilty of contributory negligence and reduced his damages by 90%

• question was whether this apportionment could be justified

• found that it could be due to the significant departure from the standard of reasonable person and causal potency

podrebersek v aust iron and steel relevance

• departure from the standard of reasonable person and causal potency in finding a plaintiff guilty of CN

voluntary assumption of risk cases

• rootes v shelton

• carey v lake macquarie council

• singh v lynch

rootes v shelton facts

• plaintiff was an experienced waterskiier who was performing a trick where it is usual to have an observer to warn skiers of objects but this was absent

• plaintiff was blinded by spray and collided with a stationary boat, causing severe injury

• found that the risk of the boat was not inherent in the sport, and there is no evidence the plaintiff voluntarily assumed any of the risks

rootes v shelton relevance

• even though sports have inherent risk, this does not completely absolve one participant from a duty of care

carey v lake macquarie council facts

• plaintiff was a cylist who was injured when he struck a bollard located on the centre of a path for which the defendant was responsible

• question of whether the defendants pleading raised the defence of voluntary assumption

carey v lake macquarie council relevance

• awareness and acceptance of risk are different, plaintiff did not make a decision to adopt the risk

• subjective test of the specific plaintiff in the circumstances, can infer what they thought to a degree

singh v lynch facts

• plaintiff was a professional jockey who suffered serious head injuries when his horse fell, caused by another jockey breaching the rules

• question of whether professional sport counts as a dangerous recreational activity and whether the breach of rules is inherent in the sport

• held that it was a recreational activity and the rider breaching the rules was an obvious risk

singh v lynch relevance

• professional sports as recreational activities

• breach of rules as an obvious risk

vicarious liability cases

• hollis v vabu

• sweeney v boylan nominees

• prince alfred college v adc

• bird v dp

hollis v vabu facts

• plaintiff was injured when struck by a cyclist wearing a jacket with the words of a corporation owned and operated by Vabu

• question was whether the cyclist was an employee, making Vabu vicariously liable

• held that due to the control Vabu had, lack of ability for the couriers to work outside the enterprise and they represented Vabu’s corporation

  • pointed towards an emloyee relationship

hollis v vabu relevance

• pointed out some of the factors required to prove an employer employee relationship

sweeney v boylan nominees facts

• plaintiff went to a service station and was injured when she opened the refrigerator door which fell off and hit her in the head

• sued the owner of the refrigeration equipment wh was obliged to maintain and service it

• issue was whether the owner of the refrigerator was liable for the negligence of the mechanic engaged to undertake the repairs

• held that the mechanic was an independent contractor, thus the defendant was not liable

sweeney v boylan nominees relevance

• factors that pointed towards an independent contractor include supplying own equipment, having full control over the way the task is completed and pursuing own business

prince alfred college v dp facts

• plaintiff at 12 years old was abused by a housemaster and college employee both in the boarding house and outside school

• question was whether the school was vicariously liable

• provided some guidance such as the employer must provide an opportunity for the tort to occur

prince alfred v dp relevance

• employer required to provide the occasion for the tort to be vicariously liable

  • factors taken into account include trust, control and the ability to achieve intimacy with the victim

bird v dp facts

• respondent was sexually assaulted by a catholic priest

• question was if the diocese could be vicariously liable for the actions of the priest

• held that it was not an employee employer relationship

bird v dp relevance

• relationships akin to employment are not considered a vicarious liability relationship

non delegable duties cases

• burnie port authority v general jones

• nsw v lepore

burnie port authority v general jones facts

• defendants building was destroyed in a fire, vegetables stored in the building were ruined

• fire was caused when welding caused nearby cardboard boxes containing insulating material to catch fire

  • done by independent contractors

• held that the authority, as the occupier of the premises owed general jones a duty of care which was non delegable

burnie port authority v general jones relevance

• a non delegable duty requires a party to ensure a contractor is taking reasonable care

• vulnerability, control and dependence are key factors

nsw v lepore facts

• concerned the liability of Australian states for the sexual abuse of school children by teachers

• held that state education authorities would not generally be held liable for the abuse of pupils unless there was fault on the part of the authorities

nsw v lepore relevance

• non delegable duties do not extend to intentional wrongdoing