Voluntary Assumption of Risk and Contributory Negligence
There are two defences which a defendant may raise against a claim of negligence:
voluntary assumption of risk and contributory negligence.
Voluntary assumption of risk (consent) is a complete defence to an action in negligence,
where a plaintiff has fully and freely consented to the risk of harm by the defendant’s
conduct. Hence, the defendant will be relieved of legal liability for that conduct and will
not be entitled to compensation for damages suffered by plaintiff. This defence is very
rarely successful. However, In the case Morris v Murray (1990), the plaintiff and the
defendant, along with others, drank at a pub. The plaintiff drove the defendant and another
person to the aerodrome in his car, and they all boarded an aircraft. Flying had been
suspended due to bad weather, and the defendant pilot attempted a particularly difficult
take-off. Shortly after take-off the aircraft crashed, killing the defendant pilot. The court
held that the plaintiff was aware of the intoxication of the pilot and understood the risk he
was taking in flying with the deceased in poor weather. As such, the plaintiff was not
entitled to any compensation for his injuries.
In recent times, contributory negligence constitutes a partial defence to a claim in
negligence. At common law an injured person could not recover against another negligence
when his injuries had been partially caused though his own negligence, where the plaintiff’s
breach of a duty owed to the defendant. Therefore, they could not recover damages
against the defendant. However, the law reform Act 1947 (WA) now provides for
apportionment of liability between the defendant and the plaintiff. In such cases, the court
will reduce the award of damages made against the defendant by the amount which it
finds the plaintiff contributed to their own injuries. The apportionment will depend upon
the circumstances in each case and will consider such things as the potential for injury or
vulnerability of the parties. In Connors v The WAGR Commission (1992), a young boy was
playing on railway tracks. He was injured by the train, and it was held that the train driver
was negligent in failing to see the boy and stop in time. It was held that both parties had
been careless, and the defendant was found 80 % and the plaintiff 20 % responsible for
the injuries sustained by the plaintiff.
Accordingly, the court have tended to prefer the defence of contributory negligence, on
the grounds that an apportionment of liability between defendant and plaintiff is very often
the most equitable solution.
Negligent Misstatement
The area of law is Negligence, focusing on Negligent Misstatement.
A negligent misstatement is an accurate or misleading statement which arises from
carelessness or lack of care in ensuring the information is accurate. It often results in
economic loss that is unconnected to injury to a person or damage to property. Therefore,
a defendant’s liability may extend to statements of fact, advice, or opinion which a
defendant makes. For a plaintiff to recover damages for a negligent misstatement, the
plaintiff must establish a duty of care, a breach of duty and damage.
In Hedley Byrne v Heller & Partners Ltd (1964), The plaintiff, advertising agents, relied on
a favorable financial report of the customer from the defendant (customer's bank) to place
substantial orders for advertising space on credit basis for the customer. The customer
went into liquidation, leaving the plaintiff with an economic loss. The plaintiff sought to
recover from the defendant, whom they sued for a breach of duty of care in negligence.
The court held that when a person with special skills offers to use their expertise to help
someone who depends on it, a duty of care arises regardless of a contract.
The Hedley Bryne case established that a duty of care arose when the defendant was in a
special relationship with the plaintiff, for example, a professional relationship including that
of an engineer to a client. For a breach of duty to arise, the plaintiff must establish that
the defendant made the representation and knew or ought to have known that the
information requested was for serious purpose, the representation would be acted upon,
and if the statement was inaccurate, they would suffer loss. The plaintiff must show that
they relied on the information or advice to their detriment.
In McKenzie v Miller (2006), this case concerned a dispute grounded in breach of contract,
negligence, and consumer law over both delay in the completion of works and excessive
costs incurred that varied dramatically from original estimates. After the commencement
of works the architect advised the property owners that costs had increased significantly
causing stress and embarrassment to them. This resulted in a portion of the work being
cancelled due to cost reasons. The plaintiff sued the architect for negligence in estimating
the construction costs. The court held the architect was negligent, the architect had
breached their owed duty of care.
The defendant was obligated to provide accurate specifications, as a duty of care
was owed due to the professional relationship between the parties like in the Hedley Bryne
case. The duty of case was breached by providing inaccurate engineering costings and
specifications as per principle discussed above. The plaintiff incurred financial loss in their
dealings with the customer, which will be seen as damages.
In conclusion, the plaintiff can recover the damages suffered by the defendant as
a duty of care was owned, and it was breached, resulting in economic and reputation loss
like in Mckenzie v Miller.
Vicarious Liability
The area of law is Vicarious Liability in Tort
Vicarious liability is liability imposed on one person for the acts or omissions of another.
This is based on the belief that an employer should pay the costs of damage caused by
their business operations. Moreover, the employer is better positioned to cover damages
and can pass tort losses through liability insurance and increased prices.
For an employer to be vicariously liable for the acts of an employee the plaintiff must
establish that a tort of negligence was committed, but also may include other torts.
Moreover, the plaintiff must establish that the tort was committed by an employee of the
employer, where an employer will not be vicariously liable for the torts of an independent
contractor. The court employs the control test and organization test to distinguish an
independent contractor from an employee. The control test involves determining whether
the employer has a right to direct not only what the person may do but also how he shall
do it, if the employer has a right that person is an employee. The organization test involves
determining whether the person is an integral part of the employer's organization, if there
are an integral part that person is an employee.
In Henson v Perth Hospital BOM (1938), the plaintiff, an outpatient at a hospital, had been
given ear drops by two nurses. Doctors at the hospital had in fact prescribed different ear
drops but the nurses had mistakenly ordered the wrong ones. As a result of administering
the incorrect medication, the plaintiff suffered ear damage. The court found the doctors
and nurse to be employees of the defendant and held that their conduct had been
negligent. Accordingly, the defendant hospital was held vicariously liable in negligence. In
recent time, multi-factorial and multi-indicia type tests have also been used by courts to
establish the existence of any employer-employee relationship by examining a multitude
of factors including payment of benefits, provision of tools and equipment.
Negligent actions by an employee at work will be the responsibility of the employer if that
action was “within the scope of employment”, which includes doing the job that the person
is employed to do and doing things that are incidental to that job. If the action was wholly
outside the scope of employment, where the employee was on “a frolic of their own”- then
the employer will be not held vicariously liable for the employee’s tort. In Twine v Bean’s
Express (1946), an employee gave a lift to a hitchhiker in his employer’s van, even though
this had been forbidden by the employer. Due to the employee’s negligent driving, the
hitchhiker was killed. The court held that the employee had been acting outside the scope
of his employment and the employer was not vicariously liable for the death.
The XX was negligent so a tort has been committed here. XX is a machine operator
within a workshop so under either the control or organization test, XX will be considered
an employee. Although XX was not following appropriate procedures it would be
reasonably safe to conclude that she was undertaking an authorized act in an unauthorized
manner which can still be within the scope of the employment like in Henson case. Thereby
creating liability for the defendant behalf of XX.
In conclusion, the defendant could be held vicariously liable to the plaintiff for XX
negligent actions, as XX is an employee of the defendant and working within the scope of
employment.
IP – Patents and Design
The area of law is Intellectual Property, focusing on Patents and Design
To qualify for protection, a patent must be a patentable invention. To be a patentable
invention it must be a manner of manufacture, novel and involve an inventive step, useful,
and not have been used secretly in the patent area before the priority date. Manner of
manufacture covers a new product or substance, or a machine process that can be used
for making something. It must be capable of being used in commerce or trade. In IBM
Corporation v Commissioner of Patents (1991), the plaintiff was successful in patenting an
improved computer graphic program as it was a ‘manner of manufacture’ and therefore
eligible.
Novelty means that the invention must be something that has not been used previously
or known publicly. To determine if the invention is new it is compared with the prior art
base – existing knowledge and material. However, the grace period provides that inventors
can still patent their invention even if it has been disclosed to the public provided, they do
so within 12 months of the invention being disclosed to the public. In Apotex Pty Ltd v
Sanofi-Aventis, the court questioned the novelty of a pharmaceutical product citing
previous products of the same company. The court held that the product lacked novelty or
newness.
An inventive step demands novelty, but not complete novelty; it allows adapting existing
inventions to create something new. Importantly, the invention should not be obvious to
experts in the relevant field. In Lockwood Security v. Doric (2007), Doric disputed the
validity of Lockwood's patent for a door lock, arguing that it lacked an inventive step. The
court held that the inventive step was sufficient to be patentable. The invention must be
capable of being used and marketed in trade or commerce. If an inventor makes the
invention available to the public before applying for a patent, then the invention will be
part of the “prior art base” and will not be patentable. In Innovative Agricultural Products
v Cranshaw (1996), the court determined that an invention involving a novel animal feeder
had been publicly disclosed at a farming field day, leading to a lack of patentable novelty.
As a result, the patent infringement claim was dismissed, and the patent was revoked.
Unlike patents, design protection focuses on the visual appearance of a product. It
encompasses features like shape, patterns, configuration, and ornamentation that
contribute to a product's distinctive look. For a design to be registered, it must be both
new and distinctive when compared to existing designs in the "prior art base" that were
published before the application's filing date. A design is distinctive if it is substantially
different in its overall appearance to other designs already in the public domain. In Ullrich
Aluminium v Dias Aluminium (2006), the court dismissed an appeal that a design featuring
extruded aluminium was not novel as it was sufficiently different from the “prior art base”.
It was held in D Sebel & Co Ltd v National Art Metal Co Pty Ltd (1966), that when it comes
to a chair, with an extensive prior art base, courts cannot expect to find much novelty and
originality. However, small differences can be sufficient.