W10 torts - Negligence Defences

Negligence - Defences

  • Consider the following defences:

    • Contributory Negligence: The plaintiff's own negligence contributed to their harm.

    • Voluntary Assumption of Risk: The plaintiff knowingly and willingly accepted the risk of harm.

    • Contractual Exclusion / Notice: A contract or notice limits or excludes the defendant's liability.

    • Statutory Immunities

      • Good Samaritans: Protection for those who assist others in emergencies.

      • Food Donors: Protection for those who donate food to charity.

      • Volunteers: Protection for those who volunteer for community organizations.

    • Limitation of Actions: The plaintiff waited too long to file their lawsuit.

Contributory Negligence

  • P failed to take reasonable care for their own protection, and that failure was a cause of the incident/injury. The plaintiff's carelessness played a role in their own harm.

  • Damages are apportioned; P's damages are reduced by up to 100% to account for their contribution to the injury. The plaintiff's compensation is reduced in proportion to their degree of fault.

Voluntary Assumption of Risk

  • Onus shifts to D. The defendant must prove that the plaintiff voluntarily assumed the risk.

  • P knows of and accepts the risk, and that risk eventuates. The plaintiff understood and accepted the specific risk that caused their injury.

  • Complete defence; D is not liable. If proven, this defence completely protects the defendant from liability.

  • D must prove the existence of a defence on the balance of probabilities. The defendant must show that it's more likely than not that the defence applies.

Illegal Activity

  • P was engaged in illegal activity. The plaintiff was breaking the law at the time of their injury.

  • Check provisions in relevant state legislation. The availability and specifics of this defence vary by jurisdiction.

Limitation of Actions

  • P has not brought an action within the statutory timeframe. The plaintiff missed the deadline for filing their lawsuit.

  • Generally, the time limit is 3 or 6 years. The exact time limit depends on the jurisdiction and the type of claim.

Other Statutory Defences

  • Good Samaritans

  • Volunteers

  • Food donors

Process for Contributory Negligence

  1. Ascertain the standard of care:

    • Wrongs Act 1958 (Vic) ss 62

    • McHale v Watson [1966] HCA 13 if a child is involved

    • s.14G if intoxication/illegality is relevant

  2. Apply s 48 factors. Consider the factors outlined in s 48 of the Wrongs Act, which may include the foreseeability of the risk, the probability of harm, and the cost of taking precautions.

  3. Determine factual causation:

    • Contribution of P’s falling below the standard to P’s injuries according to the ‘but for’ test. Did the plaintiff's carelessness contribute to their injuries? Would the injuries have been avoided if the plaintiff had acted reasonably?

    • Scope of liability is not relevant.

  4. Apportion liability:

    • Wrongs Act 1958 (Vic) ss 26, 63

Process for Voluntary Assumption of Risk

  • Knowledge of Risk:

    • Actual knowledge, subjective test (Scanlon v American Cigarette Company (Overseas) Pty Ltd (No 3) [1987] VR 289). The plaintiff must have been personally aware of the specific risk involved.

    • Unless:

      • Obvious risk (s.54) which reverses the onus of proof. s.53 defines ‘obvious risk’ objectively but see Doubleday v Kelly [2005] NSWCA 151 in relation to children. If the risk was obvious, the plaintiff must prove they were unaware of it.

      • Alleged failure of duty to warn, in which case s.56 applies to prove unawareness of the risk. If the plaintiff claims they weren't warned about the risk, they must prove they were unaware of it.

  • Voluntary Assumption of Risk:

    • P must have acted voluntarily and with full appreciation of the risks involved:

      • Absence from constraint: Bowater v Rowley Regis Corp [1944] KB 476 (cf Imperial Chemical Industries Ltd v Shatwell [1965] AC 656) The plaintiff's choice must have been free and uncoerced.

      • Freedom from intimidation, reasonable time to make assessment of risk, Avram v Gusakoski [2006] WASCA 16. The plaintiff must have had the opportunity to assess the risk without pressure.

      • Sufficient capacity (argued but not often accepted in cases of intoxication of P). The plaintiff must have been of sound mind and not impaired by intoxication.

  • Complete Defence:

    • If the defendant can prove that the plaintiff agreed to undertake the risk, the defendant has a complete defence - the plaintiff cannot recover for the injury at all.

Process for Contractual Disclaimer

  1. A signatory is bound by an exclusion clause contained in a signed document. If the plaintiff signed a contract with a clause limiting liability, they are generally bound by it.

  2. If the exclusion clause is contained in an unsigned document:

    • Has it been incorporated?

      • Notice of the exclusion clause after the formation of the contract makes the exclusion clause ineffective. The plaintiff must have been made aware of the exclusion clause before entering into the contract.

      • Previous dealings may lead to the inference of sufficient notice of the exclusion clause. If the parties have a history of similar transactions, the plaintiff may be deemed to have notice of the exclusion clause.

    • Is it promissory? It is not effective if the document is a non-contractual voucher, receipt, or ticket. The document containing the exclusion clause must be intended to be part of the contract.

  3. Special rules may apply to the interpretation of exclusion clauses. Courts may interpret exclusion clauses narrowly against the party seeking to rely on them.

  4. The operation of exclusion clause principles has been limited.

    • Especially in the consumer context, by various statutes: in consumer law under the Australian Consumer Law and equivalents, sale of motor vehicles law, consumer credit law, and in the prohibition of exclusion of a complaint from the Small Claims Tribunal. Consumer protection laws often restrict the use of exclusion clauses.

  5. The operation of an exclusion clause may be ‘misleading or deceptive’ and therefore actionable under s.18 of the ACL. Exclusion clauses cannot be used to mislead or deceive consumers.

  6. An exclusion clause may be unconscionable at common law or under the ACL. Exclusion clauses that are extremely unfair may be deemed unconscionable and unenforceable.

Contributory Negligence vs. Voluntary Assumption of Risk

  1. Contributory Negligence

    • P failed to exercise reasonable care for themselves, causing harm. The plaintiff's own carelessness contributed to their injury.

    • Results in a reduction in the award of damages (Part V Wrongs Act 1958 (Vic)). The Act states that the P can be 100% responsible (cf case law) The plaintiff's compensation is reduced in proportion to their degree of fault; in some cases, they may be entirely responsible.

  2. Volenti non fit injuria

    • 'There can be no injury to the willing' - P knows about and has freely consented to a risk of harm. The plaintiff knowingly and willingly accepted the risk of harm.

    • Is a complete defence. This completely protects the defendant from liability.

Consequences of Contributory Negligence

  • Damages are reduced by the proportion due to the plaintiff’s failure to take care: Wrongs Act 1958 (Vic) 26, 62, 63 The plaintiff's compensation is reduced based on their degree of fault.

  • This involves ‘a comparison both of culpability, i.e., of the degree of departure from the standard of care of the reasonable man … and of the relative importance of the acts of the parties in causing the damage’ Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 This requires a comparison of the parties' conduct and their contribution to the harm.

Good Samaritans

  • A 'good Samaritan' is someone who provides assistance to another in need.

  • Protected from civil suit in all jurisdictions provided the assistance is:

    • Provided in good faith; and The assistance was given with honest intentions.

    • Without payment or expectation of payment The assistance was provided without any expectation of compensation.

    • Wrongs Act 1958 (Vic) 31B

Donors of Food

  • Part VIB Wrongs Act 1958 (Vic)

  • No liability where food donor gave food in good faith for charitable purpose, for recipient who would not pay. Those who donate food in good faith to charity are protected from liability.

  • Food must have been safe to consume when given, and accompanied by instructions for handling (and timing) where required. The food must have been safe and properly labeled.

  • Wrongs Act 1958 (Vic) Part VIB s 31F

Volunteers

  • Protected from immunity in some jurisdictions if they are providing service for a community group or charity in good faith. Volunteers are often protected from liability when working for community organizations.

  • See Part IX Wrongs Act 1958 (Vic)

    • ‘Volunteer’ (s35) providing service in ‘community work’ (defined s36) – no liability (s37).

    • Instead, liability attaches to the community organization (s37). The organization is responsible for the volunteer's actions.

    • Exceptions (s38). There are exceptions to this protection, such as gross negligence.

    • No indemnities to shift back onto volunteer (s40). The organization cannot seek reimbursement from the volunteer.

Statute Barred Actions

  • Action must be brought within 6 years unless personal injury in which case 3 years from the date on which the cause of action accrued: Limitation of Actions Act 1958 (Vic) s.5 There are time limits for filing lawsuits, typically 3 years for personal injury and 6 years for other claims.

  • The relevant limitation period runs from the time the cause of action ‘accrues’ (i.e., is complete). The clock starts ticking when the plaintiff has a complete legal claim.

  • In the tort of negligence, damage is the gist of the action, so the cause of action is not complete until the plaintiff suffers the required damage. The plaintiff must have suffered actual harm for the claim to be complete.

  • In the case of gradual onset injuries:

    • The test is whether the damage is discoverable (an objective test) or discovered by the plaintiff (a subjective test): Alcan Gove Pty Ltd v Zabic (2015) 257 CLR 1 For injuries that develop over time, the clock starts ticking when the harm is either reasonably discoverable or actually discovered.

Scenario: Davo, Eccs, and Baz

Davo (15), Eccs (14), and Baz (11) were skateboarding. Wokka drove alongside and agreed to let them skate on the back of his truck for fun, unaware of the potential risks involved. As Davo attempted a trick, he fell and sustained injuries, prompting a discussion on whether Wokka could be held liable for negligence given the circumstances.

In this context, it is crucial to assess whether Wokka's actions constituted a breach of the duty of care owed to the boys, considering their ages and his lack of knowledge regarding the risks. Furthermore, the defense of contributory negligence may arise if it can be demonstrated that Davo and his friends engaged in risky behavior that contributed to the accident.

Additionally, the defense of volenti non fit injuria could be relevant, as the boys may have voluntarily assumed the risks associated with skateboarding on a moving vehicle, thereby potentially absolving Wokka of liability.

Ultimately, the determination of liability will depend on the court's interpretation of these defenses, along with the specifics of the case and the actions of all parties involved.

In summary, understanding these defenses is key to evaluating Wokka's potential liability and will require careful consideration of the facts surrounding the incident.

  • In light of the circumstances, the court may also consider public policy implications, such as whether it is in society's best interest to hold Wokka fully accountable given the context in which the incident occurred.

  • Additionally, the awareness of risks by the youths involved, as well as any prior guidance or warnings provided by Wokka, could further influence the court's assessment of responsibility.

These factors will play a crucial role in highlighting the complexities of the case and may ultimately impact the outcome of the legal proceedings.

Furthermore, the court may examine whether the actions of the plaintiffs contributed to their own injuries through comparative negligence, which could potentially reduce Wokka's liability based on their level of fault.

This could involve analyzing the specific behavior of each party and determining the extent to which their actions deviated from the standard of care expected, thereby shaping the final judgment on damages.