LAWS11064 Torts B
Module 8 – Negligence:
Defences and Remedies
Objectives
At the end of this module you should be able to:
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Understand the scope and definition of the defences of contributory
negligence, illegality and voluntary assumption of risk at both common law
and statute;
Outline the central factors taken into consideration by the courts in dealing
with these defences;
Identify and apply appropriate defence(s) in particular fact scenarios; and
Understand how heads of damage are used to calculate an award of
damages and apply this understanding to relevant fact scenarios.
Negligence so far…
1. Duty of Care
• Established Categories and Novel cases (Reas. Foreseeability; Salient Features; Relevant Policy
Considerations?)
2. Breach of Duty – s 9 CLA
• Standard of Care and Breach
3. Damage – s 11 CLA
• Factual Causation – “necessary condition” (s. 11(1)(a)) AND Scope of Liability – normative
considerations; “RF of kind of harm” (s.11(1)(b))
Special cases of negligence:
• pure psychiatric injury
• pure economic loss: by words or by acts
Omissions (no duty to rescue)
Public authorities: 2 grounds
• When PA has used their power but been careless in the exercise; or
• That PA has failed to exercise their power which they were under a common law duty
to exercise
This week:
• Defences to Negligence
Part 1
Part 2
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Contributory Negligence
Volenti non fit injuria
Illegality
Legislative “immunity”
Exclusion clauses
• Remedies for Negligence
• Re-cap of Week 10, Torts A
• Classification of Damages
• Assessment of Damages
• Wrongful Death & Survival of Actions
Contributory Negligence
• “…a Pl is guilty of contributory negligence when the Pl
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 Pl was
exposed” (per McHugh J in Joslyn v Berryman (2003)
214 CLR 552 at [16]).
• Historically a complete defence (Williams v
Commissioner for Road Transport (1933) 50 CLR 258),
but now partial defence as per apportionment schemes:
s (10)(1) Law Reform Act (Qld).
Contributory Neg cont.
To establish CN, Def must prove:
Pl at fault or
negligent
The
fault/negligence
contributed to
harm suffered by
Pl;
The harm was RF
consequence of
Pl’s
fault/negligence
Contributory Neg: fault or negligence of Pl
• Pre-CLA, a more lenient standard of care was applied to
Pls: Caterson v Commissioner for Railways (1973) 128
CLR 99.
s.23 CLA sets test for fault:
(1) The principles that are applicable in deciding whether a
person has breached a duty also apply in deciding whether the
person who suffered harm has been guilty of contributory
negligence in failing to take precautions against the risk of
that harm.
(2) For that purpose—
(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 decided on the basis of what that
person knew or ought reasonably to have known at the
time.
Contributory Neg: fault or negligence of Pl
Child Pl judged according to standard of a child of same age, intelligence and experience:
McHale v Watson (1966) 115 CLR 199. See also:
NSW v Griffin [2004] NSWCA 17
Doubleday v Kelly [2005] NSWCA 151
Waverley Council v Ferreira (2005) Aus Tort Reps 81-818
Cf Manly Council v Byrne [2004] NSWCA 123
A sudden emergency created by the Def may render the Pl’s conduct reasonable in the
circumstances. ‘Doctrine of Alternative Danger’ (Caterson v Commissioner of Railways). Eg.
Shelley v Szelley [1971] SASR 430
Azzopardi v Constable & Azzopardi v Thompson [2006], two rescuers hit by a motor
vehicle contributed to their injury by not taking due care when assisting another
motorist. Ipp JA (dissent) would have reduced damages to 25%.
Employment: often, employee conduct characterised as mere inattention rather than CN:
McLean v Tedman (1984) 155 CLR 306.
Intoxication: intoxicated Pl judged against standard of a reasonable sober person: Joslyn v
Berryman (2003) 214 CLR 552.
Contributory Neg: Causation
A Pl’s conduct may be causally
relevant in 3 ways (McGlone &
Stickley, 2009):
• their own carelessness caused the
accident: eg. Griffiths v Doolan [1959]
Qd R 30; Poole v State Transport
Authority (Rail Division) (1982) 31
SASR 74).
• the Pl’s conduct increased the risk of
the harm: eg. Azzopardi v State
Transport Authority (Rail Division)
(1982) 30 SASR 434).
• the Pl’s conduct aggravated the
damage caused by the Def’s
negligence: eg. Eagles v Orth [1975]
Qd R 197.
The Pl’s negligence need
not contribute in any way
to the accident itself:
O’Connell v Jackson
[1971] 3 All ER 129. Cf
Monie v Cth [2007]
NSWCA 230
Image source: goodgerster (flickr)
Contributory Neg: Apportionment
• Court directed to reduce damages to extent it thinks ‘just
and equitable’: s. 10(1)(b) Law Reform Act 1995 (Qld).
– Ct will assess culpability of both parties. Eg. Pennington v Norris
(1956) 96 CLR 10.
“By ‘culpability’ we do not mean moral blameworthiness but degree of departure
from the standard of care of the reasonable man. To institute a comparison in
respect of blameworthiness in such a case as the present seems more or less
impracticable because, while the defendant’s negligence is a breach of duty owed to
other persons and therefore blameworthy, the plaintiff’s ‘contributory’ negligence is
not a breach of any duty at all, and it is difficult to impute ‘moral’ blame to one who is
careless merely of his own safety” (at 16).
• CN may defeat a claim through 100% apportionment if
court considers it just and equitable to do so: s. 24 CLA.
Legislative findings of Contibutory Neg
Image source: e-Magine Art
“intoxicated”: under the influence of alcohol or a drug to the extent that
the person’s capacity to exercise proper care and skill is impaired. (Sch 2)
Pl intoxicated:
Pl relies on intoxicated Def:
- Presumption that Pl is CN if
intoxicated at time of
accident: s.47 CLA
- May be rebutted if intoxication
did not contribute to breach, or
if intoxication wasn’t selfinduced: s. 47(3).
- Eg. Russell v Edwards (2006)
Aus Torts Reps 81-833
- Presumption of CN: s. 48 CLA.
(s.49 if Def driving)
- May be rebutted if intoxication
didn’t contribute to Def’s breach,
or Pl could not have reasonably
avoided relying on Def in
circumstances: s.48(3)
• 25% min reduction applies: s.47(4) (intoxicated Pl);
s. 48(4) (intoxicated Def).
• Higher reduction (50% min) if neg involves
intoxication and motor vehicle: s.47(5) (Pl was
driver); s.49 (Def is driver and Pl relies on Def).
Image source: willia4 (flickr)
Volenti Non Fit Injuria
To establish Volenti, Def must establish the Pl:
• Had full knowledge of the risk; and
• Voluntarily accepted the physical and the legal risk.
• “no injury is done to one who voluntarily consents”. Also
described in the CLA as ‘voluntary assumption of risk’.
• A complete defence: Rootes v Shelton (1967) 116 CLR
383.
• Significant in employment context in 19th C: Thomas v
Quartermaine (1887) 18 QBD 68; Smith v Charles Baker
& Sons [1891] AC 325.
• Volenti difficult to establish and since apportionment
legislation, courts prefer to find CN.
Establishing Volenti: Full knowledge of risk
• Full knowledge of risk:
– Subjective test. Mere knowledge alone doesn’t imply consent (Smith v
Charles Baker & Sons [1891] AC 325).
• In cases of ‘obvious risk’: s. 14 CLA
– A risk that would be obvious to a reasonable person in Pl’s position: s.
13 CLA
• Dangerous recreational activities: s. 19 (Def not liable for
materialisation of obvious risk of dangerous rec activity)
– ‘an activity engaged in for enjoyment, relaxation or leisure that involves
a significant degree of risk of physical harm to a person’ (s. 18). Eg.
Fallas v Mourlas [2006] NSWCA 32
• Pl’s harm has to be the materialisation of the obvious risk of the
activity.
• See Kelly v Qld [2013] QSC 106
Establishing Volenti: voluntary acceptance of
risk
• Voluntary acceptance of risk
– Pl must have accepted both risk of injury (physical risk) AND the risk
that reasonable care would not be taken by the Def (legal risk): Imperial
Chemical Industries v Shatwell [1965] AC 656.
– In Rootes v Shelton: while Pl voluntarily assumed risk of colliding with
an obstruction in the water, it couldn’t be said that the Pl voluntarily
assumed risk that Def would act negligently by carelessly failing to warn
him of the presence of an obstruction or in steering the boat.
– See also Leyden v Caboolture Shire Council [2007] QCA 134
• Consent may be implied in some cases:
– Eg. Highway users: Holmes v Mather (1875) LR 10 Ex 261
– Inexperienced drivers: Imbree v McNeilly [2008]
– Defective vehicle, consent goes to defectiveness, not negligent driving:
Gent-Diver v Neville [1953] St R Qd 1
Illegality
• Pl’s illegal activity:
• Recovery denied if at the time of injury, the Pl was carrying
out or engaged in an indictable offence, and that conduct
contributed to the risk of harm (s. 45).
• Not necessary for Pl to be convicted of offence (s. 45(4)).
• s. 45(2) allows court to award damages where denial of
liability would be harsh and unjust, but requires reduction by
min 25%.
• Joint illegal enterprise:
• Where both parties engaged in illegal activity
• Must be connection between illegal activity and the negligent
conduct.
Illegality
• Two judicial approaches to joint illegal enterprise:
– Pl should not recover damages on basis that no duty of care
owed by Def due to nature of activity (eg. Jackson v Harrison
(1978) 138 CLR 438 (‘it is correct to base the defence upon a
denial of a duty of care in the particular circumstances rather
than upon a denial of a remedy for a breach of the duty of care’
per Jacobs J)
or
– Nature of joint activity gives rise to a full defence.
• Gala v Preston (1991) 172 CLR 243 (Majority excluded
liability on lack of proximite rship attracting duty of care)
– Fabre v Arenales (1992) 27 NSWLR 437.
Immunity from liability
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Inherent risks: Def is not liable for damage arising from an inherent risk if
reasonable care is taken. An inherent risk is one that cannot be avoided by
the exercise of reasonable care: Rootes v Shelton; Woods v Multi-Sport
Holdings P/L (2002) 208 CLR 460. See s.16 CLA.
Cf Rescue cases: volenti won’t normally succeed against the reasonable
attempts of a rescuer who is injured, even if aware of risk and danger
(Haynes v Harwood [1935] 1 KB 146). Where rescuer intervenes
unreasonably and unnecessarily with full appreciation of risks, volenti may
apply: Cutler v United Dairies [1933] 2 KB 297
• Public safety entities: ss 26 and 27 CLA. Entities are prescribed in
Civil Liability Regulation 2014 (Qld) Sch 1 & 2.
• Volunteers: CLA provides protection from liability if the volunteer
carries out the community work in good faith: s. 39 CLA.
– ‘Community work’ defined as ‘‘...work that is not for private financial gain and that
is done for a charitable, benevolent, philanthropic, sporting, recreational, political,
educational or cultural purpose’: s. 38
– No protection if offence committed; if impaired by drugs or alcohol; or if
act/omission outside scope of work of organisation or against instruction (ss. 4042).
Exclusion of liability
Clauses construed strictly;
must refer specifically to
negligence or all bases of
liability: Davis v Pearce
Parking Station P/L (1954)
91 CLR 642.
Image source: Daniel Lobo (flickr)
In Aus, trend is to avoid seeing exclusion clauses
as negativing liability. Eg. Evans v Port of Brisbane
Authority (1992) Aus Torts Reps 81-181. See also
Macleay P/L (trading as Wobbies World) v Moore
(1992) Aus Torts Reps 81-151.
2. Remedies: Damages
• Assessment of damages for personal injury now
governed by civil liability legislation in each Aust
jurisdiction (eg. CLA 2003 (Qld))
• Common law principles of assessment still important
Nominal
Compensatory
Aggravated
Contemptuous
Exemplary
Not available for personal injury caused by negligence: s. 52 CLA
Damages: Principles for Assessment
Indemnity
Principle: putting
the Pl in position
they would have
been in had the
tort not occurred.
Duty to mitigate: Pl has
obligation to mitigate
losses. Burden on Def to
prove Pl failed to mitigate
(Munce v Vinidex [1974] 2
NSWLR 235). See s. 53 CLA
– def can suggests
mitigating action.
Principles
for
Assessment
Lump sum rule: damages must be paid
in lump sum. But see s. 65 CLA (allows
structured settlements). A court has no
duty to ensure the Pl uses the award of
damages appropriately (Todorovic v
Waller (1981) 150 CLR 402 at 412).
Once & for all rule: for a
single cause of action
damages must be assessed at
common law only once (Fitter
v Veal (1701) 12 Mod 542).
Exception in case of
continuing torts (Adams v
Ascot Iron Foundry P/L (1968)
72 SR (NSW) 120).
Damages for Personal Injury
• 2 categories of compensatory damages:
– Special Damages: those capable of precise
financial calculation (Paff v Speed (1961) 105
CLR 549).
– General Damages: difficult to estimate or
calculate in monetary figures (Paff v Speed).
May include consideration of past, present
and future impairment and involve economic
and non-economic items.
Damages for Personal Injury
• Special damages
• Hospital & medical expenses: actual costs of
treatments up to date of trial.
• Past loss of earning capacity: under s.60 of Civil
Proceedings Act 2011 (Qld) award must be reduced by
income tax. The CLA caps loss of earning at 3 x
average weekly earnings (s. 54(2)).
• Other expenses: reasonably necessary for Pl’s
condition (eg. Diamond v Simpson (No 1) (2003) Aus
Torts Reps 81-695).
Damages for Personal Injury
• General Damages:
– Pecuniary
• Future hospital and medical: ‘reasonably necessary’
• Past & future gratuitous care: s. 59(1)
• Future loss of earning capacity: s. 54 (caps); s. 55
– Non-Pecuniary
• Pain & suffering, loss of amenities, loss of expectation of life,
and disfigurement. (Subjective loss)
• Assessed according to CLA “general damages”
• s.62 (caps), s. 61 (ISV allocated under Civil Liability
Regulation & applied to sliding scale in Sch 6 of the CLR)
• Factors: Pl’s degree of insight into injury; age & life
expectancy; pain & suffering; loss of amenities; effect of any
pre-existing condition.
Damages for property damage
• Restitution for loss of value of property normally amounts
to:
– the cost of repair in the case of partial destruction: Murphy v Brown
(1985) 1 NSWLR 131.
Or
– the diminution in value in the case of partial destruction: Davidson v J S
Gilbert Fabrications P/L [1986] 1 Qd R 1
Or
– total replacement costs in the case of total deprivation or destruction:
Wheeler v Riverside Coal Transport Co P/L [1964] Qd R 113.
Survival of Causes of Action
• The Action:
– At common law, death of either Pl or Def extinguished any right of
action.
– Legislation now provides causes of action survive the death of a person
for the benefit of their estate (as well as against, if deceased is the Def).
In Qld this is the Succession Act 1981: s. 66
• Damages:
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Awarded to compensate the pecuniary losses to the estate from the time of
injury until death.
Recoverable:
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Medical, hospital & related expenses
incurred prior to death.
The deceased’s loss of earning capacity
to the date of death is compensated,
subject to limitations (such as in s. 54 of
the CLA Qld).
Funeral expenses.
Any insurance payments not taken into
account in assessment.
Excluded:
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Future loss of earning capacity
(s. 66(2)(d)(ii) Succession Act
Qld).
The right to recover for pain
and suffering, bodily injury,
mental harm or curtailment of
expectation of life.
Exemplary damages.
Wrongful Death
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Governed by legislation in Australia, to provide for compensation to a limited
class of persons for the death of a relative by a tortious act.
In Qld, the relevant legislation is Part 10 of the Civil Proceedings Act 2011
(Qld) which replaced s.17 of the Supreme Ct Act 1995 (Qld). See: s. 64
CPA
Under s. 65(1), not more than 1 proceeding can be brought against a
person in relation to a death. The proceeding may be brought by the
personal representative of the deceased person, or by any 1 or more of the
members of the deceased's family who suffered damage because of the
death, for the benefit of the members of the deceased's family who suffered
damage because of the death (s. 65(2)).
“member of the deceased's family” means: spouse, parent, grandparent and
child of deceased. See s. 62 for definitions.
s.67 – damages for spouse’s benefit. Possible financial benefit from future
relationships not taken into account, but will be if currently in a new
relationship.
Wrongful Death cont.
Damages that may be claimed for wrongful death:
• Pecuniary loss – representing the financial contribution to the
household by the deceased. May be actual or prospective (Berry v
Humm & co [1915] 1 KB 627). Loss of income contributed and
financial loss stemming from the death are recoverable (Robertson v
Robin [1967] SASR 151)
•Non-pecuniary loss – allowed if the loss is capable of being assessed
in monetary terms. They include household services; and Solatium
and loss of consortium.
•Relevant factors for determining each dependant’s benefit include
how much and for how long the deceased would have earned and
contributed financially to the dependant (Parker v Commonwealth
(1965) 112 CLR 295). Also, the extent and period of dependency
(Scholefield v Bates [1958] SASR 317). See also Hanlon v Hanlon
[2006] TASSC 1.
Review
In this module you have learned to:
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•
•
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Understand the scope and definition of the defences of contributory
negligence, illegality and voluntary assumption of risk at both common law
and statute;
Outline the central factors taken into consideration by the courts in dealing
with these defences;
Identify and apply appropriate defence(s) in particular fact scenarios; and
Understand how heads of damage are used to calculate an award of
damages and apply this understanding to relevant fact scenarios.
Acknowledgements – References
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Danuta Mendelson, The New Law of Torts (2nd ed 2010), published by Oxford
University Press.
Rosalie Balkin and Jim Davis, Law of Torts (4th ed, 2009) published by LexisNexis
Butterworths.
Julia Davis, Connecting with Tort Law (2012) published by Oxford University Press.
Bernadette Richards, Karinne Ludlow and Andy Gibson, Tort Law in Principle (5th ed,
2009) published by Thomson Reuters Lawbook Co.
Frances McGlone and Amanda Stickley, Australian Torts Law (2nd ed 2009)
published by LexisNexis Butterworths.
Martin Davies and Ian Malkin, Torts (Focus Series, 6th ed, 2012) published by
LexisNexis Butterworths.
Carolyn Sappideen, Prue Vines, Helen Grant and Penelope Watson, Torts
Commentary and Materials (10th ed, 2009) published by Thomson Reuters Lawbook
Co.
Sarah Withnall Howe, Greg Walsh and Patrick Rooney, Torts (LexisNexis Study
Guide, 2nd ed, 2012) published by LexisNexis Butterworths.