THE LAW OF TORTS
TORTS LECTURE
DEFENCES IN NEGLIGENCE
The Concept of Defence
 Broader Concept: The content of the
Statement of Defence- The response to the
P’s Statement of Claim-The basis for nonliability
 Statement of Defence may contain:
Denial
– Objection to a point of law
– Confession and avoidance:
–
Defences: Factors that may
undermine a plaintiffs claims
INTRODUCTION: FACTORS THAT
MAY UNDERMINE P’S CLAIM

The plaintiff's:
– A diminished standard of care: preexisting knowledge about the
defendant’s incapacity
– contributory negligence: failure to take
reasonable care of his or her own safety
– Voluntary assumption of risk: preexisting or constructive knowledge of
the risk associated with the state of
affairs that gave rise to the negligence
– unlawful conduct
DEFENCES
Contributory Negligence
Voluntary Assumption of Risk
particular defendants with limited liability
Inherent risks Diminished standard of care
Unlawful conduct/illegality
Dangerous recreational activities
Obvious risks
DIMINISHED STANDARD OF
CARE

Insurance Commissioner v Joyce:
– ‘the case may be described as
involving a dispensation from all
standards of care’, so that, … there was
no breach of duty by the defendant...’

‘Diminished standard of care’ is
technically not a defence as such
Contributory negligence
Class Exercise
What does a defendant have to
prove to establish a defence of
Contributory Negligence at
common law?
 Evaluate the scope of CN under
the CLA

THE NATURE OF CONTRIBUTORY
NEGLIGENCE: Joslyn v Berryman


(Per (McHugh J): At common law, a plaintiff is guilty
of contributory negligence when the plaintiff
exposes himself or herself to a risk of injury which
might reasonably have been foreseen and avoided
and suffers an injury within the class of risk to
which the plaintiff was exposed. In principle, any
fact or circumstance is relevant in determining
contributory negligence if it proves, or assists in
proving, a reasonably foreseeable risk of injury to
the plaintiff in engaging in the conduct that gave
rise to the injury suffered
The test of contributory negligence is an objective
one
Contributory Negligence: The
nature of the P’s conduct

The defence is established if the defendant
proves the plaintiff guilty of conduct which
amounts to a failure to take care for his/her
own safety

To plead the defence, D bears the onus of
proof and must prove the requisite standard
of care that has been breached by P.
The Substance of Apportionment
Legislation (Law Reform
(Miscellaneous) Act 1965 (NSW) s9

If a person (the "claimant") suffers damage as the result
partly of the claimant’s failure to take reasonable care (
"contributory negligence") and partly of the wrong of any
other person:
 a. claim in respect of the damage is not defeated by
reason of the contributory negligence of the claimant, and
 b. the damages recoverable in respect of the wrong are to
be reduced to such extent as the court thinks just and
equitable having regard to the claimant’s share in the
responsibility for the damage.
CIVIL LIABILITY ACT
Division 8

s5R:
– 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.
– (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.

CIVIL LIABILITY ACT
Division 8
 S5S:
– In determining the extent of a reduction
in damages by reason of contributory
negligence, a court may determine a
reduction of 100% if the court thinks it
just and equitable to do so, with the result
that the claim for damages is defeated.
How do the Courts approach the
issue of contributory negligence?

Courts compare the degree of
departure from the standard of the
reasonable person of both the P and
the D:
Pennington v Norris

Facts: 2 men crossed the street to get to their car on a rainy night
and were hit by a car and carried 30 feet and more down the street.
Wilson suffered severe injuries and it was found that the
pedestrians and driver were to blame. The Tasmanian court
apportioned each of the parties 50% and this went to the High Court
who then apportioned driver 80% and pedestrian 20%
The factors the court took into
account:
Speed…
 Lots of people …
 3 hotels just closed.
 Misty night
 Wet road.
 Impaired Visibility
 mistiness on the inside and outside of the
windscreen.
 Driving 30 miles an hour under these
circumstances… was obviously dangerous

Pennington v Norris cont’ed

Dixon CJ, Webb, Fullager & Kitto JJ :
– The only guide which the statute provides is that it
requires regard to be had to "the claimant's share in
the responsibility for the damage"… What has to be
done is to arrive at a "just and equitable"
apportionment as between the plaintiff and the
defendant of the "responsibility" for the damage. It
seems clear that this must of necessity involve a
comparison of culpability. By "culpability" we do not
mean moral blameworthiness but degree of
departure from the standard of care of the
reasonable man.
Pennington v Norris cont’ed

Here, in our opinion, the negligence of
the defendant was in a high degree more
culpable, more gross, than that of the
plaintiff. The plaintiff's conduct was ex
hypothesi careless and unreasonable
but, after all, it was the sort of thing that
is very commonly done: he simply did
not look when a reasonably careful man
would have looked.
Froom v Butcher
What will a Defendant need to
prove to establish the Defence?

Froom v Butcher [1975] 3 All ER 520
– Facts: P was injured in a car when they
were not wearing a seat belt and
crashed into another car. The other
driver was at fault. The question that
arises is whether Mr. Froom's damages
are to be reduced because he was not
wearing a seat belt.
Per Denning MR at 523

Negligence depends on a breach of duty,
whereas contributory negligence does
not. Negligence is a man's carelessness
in breach of duty to others. Contributory
negligence is a man's carelessness in
looking after his own safety. He is guilty
of contributory negligence if he ought
reasonably to have foreseen that, if he did
not act as a reasonable prudent man he
might be hurt himself
McLean v Tedman (1984) 155
CLR 306
Mere inattention and inadvertence v
contributory negligence:

McLean v Tedman (1984) 155 CLR 306
– Facts: garbage man running across the street to put
garbage in the truck (garbage truck did not drive on
either side, just drove one side and men ran to and
form the truck). P alleged that the employer had been
negligent in not providing a safer system of work.
Employer argued that the men would not have
adopted it anyway.
– Held: Mason, Wilson, Brennan and Dawson JJ. The
garbage man P was not guilty of contributory
negligence, the employer had been negligent in failing
to provide a safe system of work because:
McLean v Tedman (1984) 155 CLR
306

Mason, Wilson, Brennan and Dawson JJ.
– “The standard of care expected of the reasonable man requires
him to take account of the possibility of inadvertent and
negligent conduct on the part of others.” At [8]
– The question is whether that failure [of the P to observe the
oncoming vehicle] should be characterized as mere inattention
or inadvertence or whether it amounts to negligence, there
being a well recognized distinction between the two. It is
accepted that in considering whether there was contributory
negligence by an employee in a case in which the employer has
failed to provide a safe system of work, the circumstances and
conditions in which he had to do his work must be taken into
account. And the issue of contributory negligence is essentially
a question of fact. [19]
Zanner v Zanner [2010] NSWCA 343



Facts: The respondent, the mother of the first appellant,
sustained serious injuries when she was struck by a
motor vehicle owned by the second appellant and being
manoeuvred by the first appellant at the direction of the
respondent into the carport of the family home at Seven
Hills. At the time of the accident, the appellant was 11
years and 2 months old.
Held: Tobias JA (Allsop P and Young JA agreeing)
Section 5S applies in “very rare” cases where it can
legitimately be said that it is just and equitable to
reduce the respondent’s damages by 100%.
The Calculus of Negligence Applies
to Determine Contributory
Negligence:

Chapman v Hearse
 Where Pl is in imminent danger - The
‘agony of the moment' rule: unlikely to be
contributory negligence, where defendant
has put the plaintiff in imminent personal
danger: The Bywell Castle (1879) 4 PD
219; Cortis v Baker [1968] SASR 367
 Caterson v Commissioner for Railways
(1973) 128 CLR 99
Caterson v Commissioner for Railways (1973)
128 CLR 99

Where a plaintiff has by reason of the
negligence of the defendant been so
placed that he can only escape from
inconvenience by taking a risk, the
question whether his action in taking
the risk is unreasonable is to be
answered by weighing the degree of
inconvenience to which he will be
subjected against the risk that he
takes in order to try to escape from
it… a person who wished to avoid
being carried on to a distant station
might not unreasonably jump out
from a train which was travelling very
slowly.
Causation
The
defendant must prove a causal link between
the plaintiff’s negligence and the damage the
plaintiff suffered
At
common law the same principles applied to P
as for causation in respect of the D’s negligence:
– March v Stramare (1991)171 CLR 506.
– RTA of NSW v Turner [2008] NSWCA 48
RTA v Turner
TRTA v Turner: The Facts

Driver of car not owner. He drove car at 85 kph, even though sign
said 65 kph at some point but here should have been more signs.
 Wet condition and collided with oncoming vehicle.
 Driver seriosuly injured and owner of car killed in accident
 Driver sued owner through 3rd party insurance AAMI
– On the basis that rear tyres were smooth and should have been better.

Driver also sued RTA for not reducing speek limit sign and
erecting slippery when wet sign and in failing to maintain
adequate skid resistance on the road surface at the curve.
 The trial judge found that but for the negligence of the RTA the
accident would not have happened and held that the negligence of
the owner was not a cause of the accident and the first
respondent had not been guilty of contributory negligence. The
RTA appealed.
Voluntary assumption of risk
Class Exercise

In pleading voluntary assumption of risk
does the defendant need to prove
subjective knowledge or is proof of
objective/constructive knowledge
sufficient in the light of the Civil Liability
Act 2002 (NSW)?
Birch v Thomas [1972] 1 WLR
294
Voluntary Assumption of Risk
In general where P voluntarily assumes the
risk of a particular situation, she/he may not
be able to maintain an action against D for
negligence in relation to that situation
 The elements

– P must have perceived the danger
– P must have fully appreciated the danger/known
– P must have voluntarily accepted the risk

What constitutes acceptance of the risk?
VOULNTARY ASSUMPTION OF RISK IN
COMMON LAW: VOLUNTI NON FIT
INJURIA

The risk which the P took must be precisely
identified. Is that the risk which materialised and
which injured the plaintiff?
– Rootes v Shelton (1967) 116 CLR 383
– Kent v Scattini [1961] WAR 74
– Monie v The Commonwealth [2007] NSWCA
230
• Mere knowledge of the risk is not the same
as consenting to it
Week 7 Defences
• The ‘whole risk’Tortsmust
be incurred by P. 36
Scanlon v American Cigarette
Company overseas Pty Ltd (No 3)
[1987] VR 289
Voluntary Assumption of Risk

Scanlon v American Cigarette Company
Overseas Pty Ltd (No 3) [1987] VR 289
– If it is to be the case that the smoking of the said
cigarettes involved risk of injury as alleged… the
P knew or ought to have known that the
smoking of the said cigarettes involved such risk
and the P accepted, consented to and voluntarily
assumed the same ( extract from D’s statement
of defence)
– Issue: whether VAR is based on subjective
knowledge or an objective/constructive
knowledge is sufficient
VAR Not available in
some cases
The defence of Volenti is NOT available in
NSW in some cases:
In Motor Accident cases: Motor
Accidents Compensation Act 1999
(NSW) s 140.
2. In Workplace Accident cases: Workers
Compensation Act 1987 (NSW), s 151O.
1.
Torts Week 7 Defences
39
‘RISKS’ UNDER THE CIVIL
LIABILITY ACT
RISKS
OBVIOUS
INHERENT
VAR IN THE CIVIL LIABILITY ACT
(Division 4, S5F)

(1)an obvious risk to a person who suffers harm is a risk
that, in the circumstances, would have been obvious to a
reasonable person in the position of that person.
 (2) Obvious risks include risks that are patent or a
matter of common knowledge.
 (3) A risk of something occurring can be an obvious risk
even though it has a low probability of occurring.
 (4) A risk can be an obvious risk even if the risk (or a
condition or circumstance that gives rise to the risk) is not
prominent, conspicuous or physically observable.
 S 5I(2) An inherent risk is a risk of something occurring
that cannot be avoided by the exercise of reasonable care
and skill.
Qualifications S5G(1)

Under s5G(1) ’[i]n determining
liability for negligence, a 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’
CLA:Section 5H(1)

under s5H(1) the defendant ‘does not owe a duty
of care to another person ( "the plaintiff" ) to
warn of an obvious risk to the plaintiff The
defendant retains the duty to warn of obvious
risks in the following cases:
– a) the plaintiff has requested advice or information
about the risk from the defendant, or
– (b) the defendant is required by a written law to warn
the plaintiff of the risk, or
– (c) the defendant is a professional and the risk is a risk
of the death of or personal injury to the plaintiff from
the provision of a professional service by the
defendant
risks associated with Recreational
activities
Recreational Activities: Obvious
Risks

As a matter of law, there is a point at which
those who indulge in pleasurable but risky
pastimes must take personal responsibility
for what they do. That point is reached
when the risks are so well known and
obvious that it can reasonably be assumed
that the individuals concerned will take
reasonable care for their safety (Prast v The
Town of Cottesloe Ipp J )
CLA:
S5L provides that the defendant ‘is not liable in
negligence for harm suffered by another person
("the plaintiff") as a result of the materialisation
of an obvious risk of a dangerous recreational
activity engaged in by the plaintiff’
 s5L(2) specifically stipulates that the s5L(1)
exclusion of liability for harm suffered as a result
of obvious risk associated with recreational
activities ‘applies whether or not the plaintiff was
aware of the risk’.

INHERENT RISK

S5I(1) A person is not liable in negligence
for harm suffered by another person as a
result of the materialisation of an inherent
risk.
PRESUMPTIONS OF AWARENESS
OF OBVIOUS RISK (s5G)

(1) In determining liability for negligence, a 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 purposes 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.
NO PROACTIVE DUTY TO
WARN OF RISKS

Under the legislation D has no duty to warn P of an
obvious risks except where:
– (a) the plaintiff has requested advice or information
about the risk from the defendant, or
– (b) the defendant is required by a written law to warn
the plaintiff of the risk, or
– (c) the defendant is a professional and the risk is a risk
of the death of or personal injury to the plaintiff from
the provision of a professional service by the defendant.
RISKS IN RECREATIONAL
ACTIVITIES (CLA DIVISION 5)


S5K: "dangerous recreational activity" means a
recreational activity that involves a significant risk of
physical harm
"recreational activity" includes:
– (a) any sport (whether or not the sport is an organised
activity), and
– (b) any pursuit or activity engaged in for enjoyment, relaxation
or leisure, and
– (c) any pursuit or activity engaged in at a place (such as a
beach, park or other public open space) where people
ordinarily engage in sport or in any pursuit or activity for
enjoyment, relaxation or leisure.

S5L: No liability for harm suffered from obvious risks
of dangerous recreational activities
Obvious Risk

The question of obvious risk involves the
determination of whether the plaintiff's
conduct involved a risk of harm which
would have been obvious to a reasonable
person in his position. The test is an
objective one and thus must take account
of the objective circumstances of the
person whose conduct is being assessed.
(Tobias J, Jaber v Rockdale City
Council [2008] NSWCA 98;)

"' obvious ' means that both the
condition and the risk are apparent
to and would be recognised by a
reasonable man, in the position of
the [plaintiff] exercising ordinary
perception, intelligence and
judgment." (Mason P in Wyong Shire
Council v Vairy [2004] NSWCA 247 at
[161])
Tobias J in Wyong Shire Council
v Vairy

"[162] In this definition 'condition' refers to the factual
scenario facing the plaintiff. Thus in a diving case the
condition might typically be the fact that the plaintiff is
faced with water of unknown depth. Under such a condition
the risk would be that diving into the water (while the depth
remains unknown) might result in (serious) injury. This risk
would be considered obvious if, in the context of the case,
it was perceptible to a reasonable person in the position of
the plaintiff that if you do not know the depth of a body of
water into which you are about to dive, then to dive into
such water under such conditions inevitably brings with it
the risk of injury."
Tobias J in Fallas v Mourlas
[2006] NSWCA 32;

For the purposes of the definition of
"dangerous recreational activity" in s 5K,
the scope of the relevant activity must be
determined by reference to the particular
activities engaged in by the respondent at
the relevant time being the period
immediately prior to the respondent
suffering the relevant harm as a
consequence of the appellant's
negligence. (

as a general guide, the risk could not
be " significant " unless there was a
real chance of it materialising.
Risks in Recreational Activities

Fallas v Mourlas [2006] NSWCA 32
– whether hunting kangaroos by spotlight was a "dangerous recreational activity"
within s 5K of the NSW CLA,

Falvo v Australian Oztag Sports Association & Anor [2006] Aust Tort
Reports 81-831 (2 March 2006)
– Mr Falvo seriously injured his right knee while playing a game of Oztag, a form
of touch rugby. The game was played on a reserve occupied and controlled by
the local council. The reserve was grassed but in some areas the grass had
disappeared through wear and tear and the Council had levelled these areas
with sand. Mr Falvo ran towards the opposing team's try line he encountered a
bare patch, his knee gave way when his foot went into the sand and he
collapsed in pain on the ground.

Bujnowicz v Trustees of the Roman Catholic Church of the
Archdiocese of Sydney40 (2005),
• plaintiff, in the course of a school touch rugby game, ran into a pothole on
the school's rugby field sustaining severe injuries to his leg.
• Held: The hole there was not obvious and could not be categorized as a
depression in the ground or a mere alteration in levels but was a trap
Negligence and the ordinary
human experience

"If negligence law is to serve any useful social
purpose, it must ordinarily reflect the foresight,
reactions and conduct of ordinary members of
the community ... To hold defendants to
standards of conduct that do not reflect the
common experience of the relevant community
can only bring the law of negligence, and with it
the administration of justice, into disrepute. ..."
ILLEGALITY

The traditional Common Law
position on illegality is usually
summed up in the Latin maxim ex
turpi causa non oritur action which
means that “no cause of action may
be founded on an illegal act”
What is Illegality?

There are three possible
interpretations of ‘illegal act’ in this
context: (a) action in breach of the
criminal law; (b) criminal action and
also conduct in breach of the civil
law; (3) a criminal wrong, or civil
wrong, or immoral behaviour.
Illegality

There is no general principle of law
that a person who is engaged in some
unlawful act is to be disabled from
complaining of injury done to him by
other persons, either deliberately or
accidentally. He does not become a
caput lupinum (an outlaw) ( per Latham
CJ: Henwood v Municipal Tramsways
Trust