Defences to Negligence

How Defences Work

  • Plaintiff must satisfy the elements of the cause of action with the burden of proof on the balance of probabilities.
  • The defendant may then plead a defence, generally bearing the burden of proof, also on the balance of probabilities.

Main Defences to Negligence Action

  • Contributory negligence
  • Voluntary assumption of risk
  • Illegality
  • Policy defence – CLA s5X
  • These defenses are in addition to provisions that negate liability in specific situations, such as obvious risks of dangerous recreational activities.

Outcome If Defence Is Successful

  • Contributory Negligence: In Western Australia, a successful defence reduces the damages the defendant must pay but never reduces them to zero. In other jurisdictions, damages may be reduced to zero.
  • Other Defences: Operate as a complete defence, resulting in no liability and no damages payable.

Contributory Negligence

  • The defendant found negligent can argue that the plaintiff contributed to their own injury/harm.
  • The court determines if the plaintiff was contributorily negligent.
  • If yes, the court reduces the damages the defendant must pay (apportionment).

Historical Context

  • Historically, contributory negligence was a 100% defence, meaning the plaintiff received nothing if they were at all negligent.
  • Now, apportionment (sharing) between the parties is the norm.
  • Apportionment legislation exists, such as the Law Reform (Contributory Negligence & Tortfeasors’ Contribution Act (WA) 1947.
  • Civil Liability Acts apply to contributory negligence in most jurisdictions, with differences between jurisdictions.

Definition

  • A plaintiff is contributorily negligent if they failed to take care of their own safety, exacerbating the harm or increasing the risk of harm.
  • Examples include not wearing a seatbelt or riding a bicycle at night without lights.

Elements the Defendant Must Prove

  1. Fault element: The Plaintiff failed to take reasonable care of their own safety/interests.
  2. Causation element: The fault was a cause of the damage AND the damage was a reasonably foreseeable consequence of the Plaintiff failing to take reasonable care of their own safety.

Civil Liability Act 2002 (WA) Section 5K - Standard of Contributory Negligence

  • Section 5K(1): The principles applicable in determining if a person is liable for harm caused by their fault also apply in determining if the person who suffered harm was contributorily negligent in failing to take precautions against that harm.
  • Section 5K(2):
    • (a) The standard of care required of the person who suffered harm is that of a reasonable person in their position; and
    • (b) The matter is to be determined based on what that person knew or ought to have known at the time.

Reason for CLA s5K

  • To ensure a consistent standard: in assessing whether the Plaintiff was contributorily negligent, some cases had applied a more lenient standard than they had applied to the Defendant.
  • Example: Commissioner of Railways v Ruprecht (1979) 142 CLR 563, 577-8 (Murphy J) – differential standard to determine CN of employee than determining N of employer.

Comparison with Other Jurisdictions

  • Contrast CLA s5K with s5R in CLA (NSW): ‘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.’
  • Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183 – refers to breach
  • Hodder – s5K is opaque. Sets standard of care and therefore applies to breach AND arguably also to causation & scope. [211] (Martin CJ)

Hypothetical Situation

  • A 10-year-old boy is riding his bike at a local BMX track when the front wheel becomes caught in a pothole, and the boy is thrown from the bike. He was not wearing a helmet and suffers a head injury in the fall.
  • Assume the occupier of the track (local council) is found to have been negligent (not repairing the pothole) and then pleads contributory negligence.
  • Questions to consider:
    1. Will the court consider whether the risk of not wearing a helmet was foreseeable and not insignificant?
    2. Will they consider that question from the perspective of:
      • The boy
      • A reasonable 10-year-old
      • A reasonable adult
    3. In determining whether the boy was contributorily negligent, will the court consider the factors set out in CLA s 5B(2) – e.g. burden of precautions, etc.?

Allen v Chadwick (2015) 326 ALR 505

  • Considering s44(1) of Civil Liability Act 1936 (SA) which is in similar terms to CLA s5K; note that the section:
  • ‘precludes any suggestion that the reasonable care and skill expected of a plaintiff for the protection of his or her own interests is something different from the reasonable care and skill expected of a defendant for the protection of the interests of others.’

Interpretation of s5K

  • This section means that the Plaintiff cannot be treated more leniently than the Defendant (as per previous common law rules).
  • Suggested interpretation: the principles referred to in s5K(1) are those reflected in s5B (breach of duty) and (possibly) s5C (causation and scope).

Principles Embodied in s5B(1)

  • Precondition of breach (and CN) that the risk of harm is foreseeable and not insignificant.
  • The risk of harm = the risk of harm which the Plaintiff should have taken reasonable care to protect himself/herself against (and note s5K(2)(b).
  • Gordon v Truong; Truong v Gordon [2014] NSWCA 97
  • Take our example of the BMX track… ‘If the risk of harm is the risk of PI due to not wearing a helmet a risk that is foreseeable and insignificant?”

Reasonable Response to Risk

  • Principles embodied in s5B(1) require the court to consider what a reasonable response to the risk is – i.e., how would a reasonable person in the Defendant’s position have responded?
  • This is reiterated by s5K(2):
    • (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and
    • (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.
  • This involves the court determining the characteristics/attributes of the ‘reasonable person’

Physical and Cognitive Disabilities

  • In assessing whether a Plaintiff has been contributorily negligent, does section 5K require the court to take into account someone’s physical disabilities? What about cognitive impairment??

Town of Port Hedland v Hodder [2012] WASCA 212

  • Facts: Reece Hodder, with physical impairments (including near blindness) and an intellectual disability, attended an Aquatic Centre in South Hedland with relatives. At the age of 23, he mounted a diving block at the shallow end of the swimming pool. He entered the water head first, striking his head on the bottom of the pool and fracturing his cervical spine. The accident rendered him quadriplegic.
  • Issue: At trial, the Town of Port Hedland was found liable in negligence, but Hodder was considered to be contributorily negligent, so damages were reduced by 10%. The town appealed the judgment, and Hodder cross-appealed on the issue of contributory negligence. The issue was whether the trial judge was right to have considered Reece Hodder contributorily negligent given his physical and mental disabilities.
  • Held: The majority of the Court of Appeal was of the view that Reece Hodder should not have been found to have been contributorily negligent.
  • Reasons (Martin CJ):
    • Noted that the standard in s5K was the standard of the ‘reasonable’ person in the position of the Defendant – this requires a court to disregard a person’s personality traits, idiosyncrasies etc BUT not to disregard their physical characteristics – e.g., if they were blind.
    • H was visually impaired, and that would affect the amount of care he could reasonably be expected to take of himself…
    • He said position vis-à-vis intellectual disability was more difficult….
    • ‘It can be argued with some force that cognitive impairment is no less a disability than blindness, deafness or lameness. On the other hand, the section requires the standard to be assessed by reference to a person who is assumed to be 'reasonable' thereby connoting, at a minimum, a capacity for reasoned choice between alternative courses of action.’
    • However, on the facts the question of whether cognitive impairment should be taken into account did not need to be decided.
  • Reasons (McLure P):
    • ‘As far as I am aware there is no intermediate appellate court decision on equivalent legislation in other States suggesting or holding that the standard of care in contributory negligence is subjective or that there is an attenuated standard of care for any class other than children.’
    • So – no allowance for physical disabilities. But note s5K(2)(b): provides that the matter is to be determined on the basis of ‘what the person knew or ought to have known at the time’ ‘an assessment of what a reasonable person in the appellant's position would do depends upon making assumptions about the level of experience and familiarity that SHAC pool users, or classes of them, could reasonably be expected to have.’
  • Reasons (Murphy JA):
    • Agreed with principles of law expressed by McLure P but applied differently to the facts.
    • CN is an objective test and should make no allowance for physical or cognitive disability.
    • ‘In the application of the objective standard, in my view, a reasonable user of the pool would have checked its depth before taking the decision to dive.’
  • Principle: In determining who the plaintiff’s acts or omissions should be measured against for the purpose of deciding if they were contributorily negligent, the court should not consider physical disabilities or mental impairment.

Dunnage v Randall [2015] EWCA Civ 673

  • A decision of Court of Appeal of held that mental incapacity would not reduce the standard of care owed.
  • However, a complete lack of capacity would preclude a finding of contributory negligence because there would have been no ‘breach’ of duty to take reasonable care of self if have no volition.

Dietrich and Field, ‘The “Reasonable Tort Victim”: Contributory Negligence, Standard of Care, and the Equivalence Theory’ (2017) 41(2) Melbourne University Law Review

  • A more thorough review of authorities and discussion of whether or not the standard should be modified to take account of personal characteristics, including mental incapacity, for purpose of of CN is discussed in above mentioned article.

Causation in Contributory Negligence

  • CLA s5K (1): The principles that are applicable in determining whether a person is liable for harm caused by the fault of the person 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.
  • Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183 [31] the court noted that “Divergent views have been expressed as to whether s 5D (which is the NSW “equivalent” of our s5C) is applicable to the determination of causal contribution for contributory negligence, or whether the “common sense” approach in March v E & M H Stramare Pty Ltd (1991) 171 CLR 506; [1991] HCA 12 applies. It was not necessary to resolve the point in the present case.”
  • BUT note the comment of the majority in Tapp v Australian Campdraft at [101] suggesting it is doubtful that common sense notions of causation have any place.
  • Plaintiff contributed to the harm of which he is complaining – i.e., the loss would probably have been avoided, or the risk of harm or seriousness of injury reduced, were it not for the Plaintiff’s contributory negligence.
  • Applying the usual test for causation (but for test), which is the correct question where X is injured in a car accident due to Y’s negligent driving and X was not wearing a seatbelt:
    • But for X’s failure to wear a seatbelt, would X’s injuries have been as extensive?

Cases

  • Causal connection not established:
    • Woodward v Porteous [1971] Tas SR 386
    • Gent-Diver v Neville [1953] St R Qd 1

Apportionment

  • Where there is a finding of CN, to what extent will the damages be apportioned (i.e. Plaintiff’s damages reduced)?
    • Position before CL legislation: Wynbergen v Hoyts Corporation Pty Limited (1997) 149 ALR 25
  • Apportionment legislation – courts should reduce damages recoverable by Plaintiff to the extent that is ‘just and equitable’ in accordance with the ‘degree of negligence’
  • Courts have wide discretion but there are also some ‘rules of thumb’
  • In some states damages can be reduced by 100% if finding of contributory negligence – if courts believe it is ‘just and equitable to do so’
  • Reduction by 100% = provisions in civil liability legislation of ACT, NSW, Qld, Tas, Vic

Intoxicated Defendants

  • Is the Plaintiff contributorily negligent if they accept a lift with an intoxicated defendant but does not know that they have been drinking or are intoxicated?
  • Joslyn v Berryman (2003) 214 CLR 552: ‘The issue .. is not whether the passenger ought reasonably to have known of the driver’s intoxication from the facts and circumstances known to the passenger. The relevant facts and circumstances include those which a reasonable person could have known by observation, inquiry or otherwise.’ (McHugh J)
  • So, to succeed in showing that the Plaintiff was contributorily negligent by relying on an intoxicated Defendant, the Defendant has to show that ‘the plaintiff knew or that a reasonable person in her position ought to have known that the defendant was affected by alcohol to the extent that it was foreseeable that there was a risk of injury with the defendant driving.’ (see Luca v Zupanov [2013] WADC 40 [48]).

Hypothetical Scenario

  • If the Plaintiff is injured in an accident because they have accepted a lift with an intoxicated defendant, will that mean that they are considered to be contributorily negligent?
    • Depends

CAMPBELL v WOOLLARD [2012] WADC 48

  • Was Kate contributory negligent by accepting a lift knowing that Luke was intoxicated?
  • ‘In my opinion the level of risk associated with Mr Woollard's objectively discernible intoxication and impairment was very low having regard to the expected nature of the second trip and barely different from the risks if he had not been intoxicated. Unlike the driving of a motor vehicle, the proposed second trip was expected to be a leisurely cruise in a suitable vessel over known and basically deserted protected waters and, from both a subjective and objective point of view, none of the passengers were negligent in accepting a ride. In my opinion the defence of contributory negligence fails.’

Further Considerations

  • Note that some jurisdictions impose higher reduction of damages in cases involving motor vehicles and intoxication
  • HC case: Allen v Chadwick (2015) 326 ALR 505

Intoxicated Plaintiffs

  • What about where Plaintiff is intoxicated and accepts a lift with a driver who is also intoxicated?
  • Where the Plaintiff is intoxicated, there is a presumption that they were contributorily negligent – see CLA s5L
  • However, the presumption can be rebutted if the Plaintiff is able to show that their intoxication did not contribute to the cause of the harm.
  • How this works in practice:
    • The Defendant is found liable in negligence but wants to use the defence of contributory negligence and is able to prove that the Plaintiff was intoxicated at the time of the injury.
    • Now the Plaintiff has to prove that even though they were intoxicated, this did not contribute to the cause of harm.
  • intoxicated means affected by alcohol or a drug or other substance capable of intoxicating a person to such an extent that the person’s capacity to exercise reasonable care and skill is impaired
  • Jones v Dapto Leagues Club Ltd [2008] NSWCA
  • Campbell v Woollard: ‘I have found that Ms Campbell was intoxicated to some extent, but in no way did she place herself at risk. On the contrary, she was alert to the need to take care for her own safety.
  • Presumption as to intoxicated plaintiffs does not apply where intoxication not ‘self-induced’??
  • Imagine you go to a bar and are served double-shots even though you asked for singles. You become intoxicated. Is this self-induced?
  • See, e.g., Russell v Edwards (2006) 65 NSWLR 373 –
  • Different jurisdictions have different provisions. See, e.g., CLA 2002 (NSW) section 50 (Civil Liability Act 2002 (NSW))
  • This provides that where a plaintiff was intoxicated at the time of the act/omission causing them harm, the court must not award damages to them unless they are satisfied that the harm is likely to have occurred even if they had not been intoxicated.
  • Can have ‘harsh’ consequences: see Russell v Edwards & Anor [2006] NSWCA 19

Hypothetical Scenario

  • If the facts of the Russell case occurred in Western Australia, the most likely outcome is that:
    • Russell would have been presumed to be contributorily negligent due to his intoxication but would still have got something.

Voluntary Assumption of Risk

Volenti Non Fit Injuria

  • Consenting to the risk of harm:
    • Knowledge and appreciation of the risk
    • Freely and willingly consented to the risk
  • Fairly rare & difficult to prove – 100% defence

Cases

  • Smith v Charles Baker & Sons [1891] AC 325: knowing a risk is not sufficient. Must also be evidence of acceptance of both the actual risk and the legal risk.
  • For the purpose of volenti this is a purely subjective inquiry. Not about what a reasonable person in P’s position would or should have known …

Campbell v Woollard [2012] WADC 48

  • Held (in relation to voluntary assumption):
    • I have found that Ms Campbell was aware of some of the risks of going on the second trip, relevantly the risks of a collision or mishandling due to a combination of darkness and the possibility of Luke Woollard being intoxicated (i.e., the possibility of having impaired judgment and handling ability). However, I find that Ms Campbell was not aware, and had no means of knowing, that Luke Woollard would speed, fishtail or skylark in any other manner or that he would fail to ensure that a proper lookout was kept (by himself or anyone else for that matter). In other words, I find that Ms Campbell was not aware of the risks which manifested themselves.
  • It may be quite difficult to prove that the plaintiff both know of AND consented to bear responsibility for the risks associated with a particular activity.

CLA s5N

  • However, CLA s5N will aid the Defendant because people are presumed to be aware of obvious risks.
  • Obvious risks defined in CLA s5F.
  • Proof of acceptance of risk is easier if the plaintiff has signed a disclaimer agreeing that they bear full responsibility for the risk.

Presumption of Awareness

  • Injured person presumed to be aware of obvious risk
  • (1) In determining liability for damages for harm caused by the fault of a person, the 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 purpose 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.

Knowledge of Risk Hypothetical

  • If P (sober) accepts a lift with an intoxicated defendant and is able to show that they did not know that the person had been drinking or that they are intoxicated, will they be taken to have VCR?
    • No

Insurance Commissioner v Joyce (1948) 77 CLR

  • Volenti defence where Defendant was intoxicated:

  • If Plaintiff (intoxicated) accepts a lift with an intoxicated defendant and is able to establish that they did not know that the defendant had been drinking or that they are intoxicated, will they be taken to have VCR?

    • Unsure

Canterbury Municipal Council v Taylor [2002] NSWCA 24

  • Facts: Velodrome operated by council – mixed use as middle used for touch football. No fence between field and track. Football player stepped back onto track and hit by cyclist. Player killed and cyclist suffered psychological and physical injuries in the collision. Cyclist sued council in negligence – should have had a fence etc.
  • Issue: Had the cyclist voluntarily assented to the risk because they would have known there was no fence and therefore would have appreciated (or should have appreciated) that there was a risk that players could step backwards onto the track?
  • Held: No volenti
  • Reasons:
    • The cyclist did know there were dangers of simultaneous dual use, but…
    • ‘[I]t does not follow merely from the fact that the respondent appreciated or should have appreciated the dangers of simultaneous dual use that he believed that the touch football players would carelessly walk into the cyclists' path.
    • What evidence there was on this issue tends to support a finding that the respondent did not expect that the risk would materialise. A belief that the dangers (of which the respondent had full appreciation) would not materialise, would negative the proposition that he accepted those dangers.’
  • Principle: Even where a person knows of dangers, if they believe that they will not materialise there can be no volenti because they cannot be said to have accepted the dangers.

Acceptance of Risk

  • Imagine a situation similar to that in the video. If the boat is driven negligently (say too fast which causes the skier to swing out and this the edge) can the skier be said to have VCR?

Rootes v Shelton (1967) 116 CLR 383

  • Plaintiff accepted risks inherent in the activity; this was not one of them
  • Nevertheless, it is obvious that there will be cases when the Plaintiff can be found to have voluntarily assumed the risk of negligence or at least assumed risks that only existed because of negligence…..

Leyden v Caboolture Shire Council [2007] QCA 134

  • Council failed to inspect BMX track. 15-year-old rider (L) injured when jumping – jump had been modified by users of the track & L knew this
  • 2:1 decision that the defence of volenti made out.
  • MacKenzie J[41]: [W]hile the defence of volenti may be a highly endangered species, it is not yet extinct. Its boundaries are undoubtedly nowadays confined narrowly. In my view, this case is a rare example of one that falls comfortably within the defence on the unusually clear facts of the case.

Illegality

  • If negligence involves illegal conduct on behalf of the plaintiff (or plaintiff and defendant) then there can be no action in negligence
  • This can affect the duty of care OR could be raised as a defence
  • Refer Smith v Jenkins (1970) 119 CLR 397
  • See: Miller v Miller [2011] HCA 9

Policy Defence

  • CLA s5X
  • In a claim for damages for harm caused by the fault of a public body or officer arising out of fault in the performance or non-performance of a public function, a policy decision cannot be used to support a finding that the defendant was at fault unless the decision was so unreasonable that no reasonable public body or officer in the defendant’s position could have made it.
  • Test of unreasonableness taken from public law = ‘Wednesbury unreasonableness’ due to the name of relevant case in which the test was established (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680).
  • Generally, it is thought that the effect of the test is to lower the standard of care - gives the defendant more leeway for choice in deciding how to exercise its functions than would the normal definition of negligence (in terms of reasonable care).
  • BUT cf Pullin JA in Southern Properties who (probably erroneously) equated the test in s5X with approach to breach under s5B
  • Wording of the ‘policy’ defence is not consistent across jurisdictions
  • Further reading on the ‘policy’ defense is available at: http://www.austlii.edu.au/cgi- bin/sinodisp/au/journals/MelbULawRw/2016/8.html?stem=0&synonyms=0&query =5X%20AND%20policy%20defence

Southern Properties

  • Was the decision to conduct the prescribed burn a policy decision that was so unreasonable that no public authority could have made it?
    • McLure P [114]: There is no arguable foundation for a claim that the decision to proceed with the prescribed burn in this case was so unreasonable that no reasonable public body or officer in the respondents' position could have made it.
    • Pullin JA [303]: In this case, no reasonable public body or officer in the respondents' position could have decided to press on with the prescribed burn rather than take the precaution of deferring it to another time in [the] circumstances …