Defenses to Negligence and Contributory Negligence

Procedural Context: Once a plaintiff has successfully established the primary elements of negligence including the existence of a duty of care, a breach of that duty, causation of loss or damage, and that the harm was not too remote, the onus shifts to the defendant to establish a valid defense.
Technical Distinction: For legal purposes, a defense applies only after all elements of negligence have been proven. Arguing that an element (such as duty or breach) was not established is not considered a defense in the technical sense.
Categories of Defenses:
- Contributory Negligence: A partial defense that reduces the amount of damages payable based on the plaintiff's share of responsibility.
- Voluntary Assumption of Risk: Also known by the Latin terminology volenti non fit enuria. This is a complete defense that defeats the plaintiff's claim entirely.
- Exclusion Clauses: Contractual or notice-based limits on liability.
- Limitation Periods: Statutory timeframes within which a claim must be brought.
- Prior Protections: Includes Good Samaritans, Food Donor Protection, and Statutory Protection for volunteers.

Autonomy and Agency: The defense is founded on policy rationales regarding an individual's right to autonomy and agency, contingent upon not interfering with the interests of others.
The IP Report ( $2002$ ): Expressed that there is a widely held expectation in the Australian community that people will take as much care for themselves as they expect others to take for them. This supports the principle that the standard of care for negligence and contributory negligence should be identical.
Enlightened Self-Interest: In the case of Waiang Shire Council and Shirt, Justice Cullinan and Hayden explained that the duty a plaintiff owes is not merely a nakedly self-interested one. It is a duty of "enlightened self interest" that accounts for the burden high-risk behavior places on society (e.g., social security and other obligations) if the individual is injured.

According to the case of Montefroy and Rhodes Corporation (per Justice Gillard at paragraph $138$ ), a defendant must establish three points:

Element 1: Plaintiff's Negligence: Was the plaintiff negligent in the circumstances? Specifically, did the plaintiff fail to take reasonable care for their own safety by failing to take reasonable steps to avoid a foreseeable risk of injury to themselves?
Element 2: Causation: Was the plaintiff's negligence a cause of their damage? This may consist of conduct contributing to the incident itself, conduct contributing to the specific injury or its extent, or a combination of both.
Element 3: Apportionment: What reduction in damages is "just and equitable" having regard to the plaintiff's share in the responsibility for the damage?

The Wrongs Act $1958$ (Victoria): The principles for determining contributory negligence are derived from this civil liability legislation and common law.
Historical Context: Prior to the reforms based on the IIP report ( $02/2003$ ), the common law (as seen in Pennington and Norris, $1956$ ) did not hold plaintiffs to the same high standard of care as defendants.
Section $62(1)$ : Explicitly states that the principles applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm was contributorily negligent in failing to take precautions.
Section $62(2)$ Specifications:
- (a): The standard of care required is that of a "reasonable person in the position of that person."
- (b): The matter is determined based on what the person "knew or ought to have known at the time."
The Calculus of Negligence: Recommendation $30$ paragraph c of the IP report ( $2002$ ) indicates that the factors in Section $48(2)$ of the Wrongs Act $1958$ apply to plaintiffs:
- $a$ ) The probability that harm would occur if care were not taken.
- $b$ ) The likely seriousness of the harm.
- $c$ ) The burden of taking precautions to avoid the risk of harm.
- $d$ ) The social utility of the activity creating the risk.

Objective Nature: Per Justice McHugh in Jocelyn and Berryman ( $2003$ , paragraph $32$ ), contributory negligence eliminates the "personal equation" and ignores the "idiosyncrasies" of the specific person.
Case Study: Alan and Chadwick ( $2015$ ):
- Facts: A $21$ -year-old pregnant plaintiff agreed to be a passenger with her intoxicated partner who was driving erratically. She was rendered paraplegic in a crash.
- High Court Ruling: The plaintiff acted reasonably. The test involves facts that may be reasonably perceived which bear upon the assessment of risk.
- Permissible Objective Inputs: Includes objective facts personal to the plaintiff that diminish capacity to evaluate risk, such as being a pregnant woman (vulnerable to assault) or being on a dark, unfamiliar country road in early morning hours.
- Immaterial Subjective Characteristics: Characteristics that cannot be considered include impetuosity, drunkenness, hysteria, mental illness, personality disorders, or "witlessness."
Special Knowledge: Under Section $62(2)(b)$ , a plaintiff is endowed with the knowledge of a reasonable person plus any additional special knowledge they actually possess, which may raise their standard of care.

Common Law Standard: McHale v Watson establishes that children are held to the standard of an ordinary child of the same age. This remains consistent with the IP report (paragraph $8.12$ ), which suggests the standard does not require ignoring the identity of the plaintiff.
Case Study: Kelly and Bega Valley County Council ( $1982$ ):
- Facts: An $11$ -year-old boy was electrocuted at a substation. Initially found $75\%$ contributorily negligent by a jury.
- Court of Appeal Decision: Jury verdict set aside as perverse; found the plaintiff only $25\%$ negligent and the defendant $75\%$ negligent.
- Comparative Fault Factors:
  1. Intrinsic Danger: Defendant transmitted lethal voltages in a public street; plaintiff only risked himself.
  2. Duration: Defendant's default was long-standing and widespread; plaintiff's was ephemeral and impulsive.
  3. Maturity: Defendant's error was by mature men; plaintiff's was by an immature boy.
  4. Allurement: The defendant's default created an allurement that provoked the plaintiff's actions.
Modern Application: Doubleday and Kelly ( $2005$ ):
- Facts: A $7$ -year-old plaintiff used roller skates on a trampoline.
- Rule: The New South Wales equivalent of Section $62$ did not create a radical departure from common law. The standard for a child is that of a child of reasonable or normal intelligence, maturity, and experience for that age. No contributory negligence was found on these facts.