12. Tort Law - Negligence Defences

Determination of liability in negligence follows a four-step process:
- Step 1: Duty of Care: Does the Defendant ( $D$ ) owe a duty to the Plaintiff ( $P$ )? Established via foreseeability and proximity.
- Step 2: Breach of Duty: Has $D$ breached the standard of care? Evaluated by determining if the risk was foreseeable and if $D$ 's actions were reasonable.
- Step 3: Damage: Has $P$ suffered damage caused by the breach? Verified by the "but for" test and assessing if damage is too remote (reasonably foreseeable).
- Step 4: Defences: Are there valid legal reasons to avoid or reduce liability?

Definition: A complete or total defence where $P$ cannot sue because they fully appreciated the risk involved and accepted it willingly and freely.
Legal Rational: The principle that no harm is done to a person who consents to the risk.
Outcome: If established, the Plaintiff recovers nothing.
Key Cases:
- O’shea v Permanent Trustie Co. of NSW Ltd
- Smith v Baker & Sons [1891] AC 325: Held that knowledge of a risk does not automatically equal consent. The defendant must prove the plaintiff freely consented to the specific risk that caused the injury.

Definition: A partial defence concerned with the Plaintiff's failure to take reasonable precautions for their own safety.
Statutory Basis: The Law Reform (Contributory Negligence And Tortfeasors' Contribution) Act 1947 (WA) allows for the apportionment of damages.
Requirements for Proof:
- $P$ failed to take reasonable care (the care a reasonable person in their position would have taken).
- This failure contributed to the injury or loss.
Legal Consequences:
- Damages are reduced proportionally by the percentage of $P$ 's own negligence as determined by the court.
- There is a presumption of contributory negligence if $P$ was intoxicated at the time of the incident.
Comparison: Unlike voluntary assumption of risk, contributory negligence usually results in a reduction of the award rather than a total loss of the claim.