TORTS LECTURE
DEFENCES IN NEGLIGENCE
INTRODUCTION: FACTORS THAT
MAY UNDERMINE P’S CLAIM

The plaintiff's:
– pre-existing knowledge about the
defendant’s incapacity;
– pre-existing knowledge of the risk
associated with the state of affairs that
gave rise to the negligence
– failure to take reasonable care of his or
her own safety
– unlawful conduct
DEFENCES
Contributory Negligence
Voluntary Assumption of Risk
Diminished standard of care
Unlawful conduct/illegality
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
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) s10

Where any person suffers damage as the
result partly of his/her own fault and partly
of the fault of any other persons, a claim in
respect of that damage shall not be defeated
by reason of the fault of the person
suffering damage, but damages recoverable
in respect thereof shall be reduced to such
extent as the court thinks just and equitable
having regard to the claimants share in the
responsibility for the damage
CIVIL LIABILITY ACT Part 8

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.
 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.
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?
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

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’

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
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
Case Law on Risks in Recreational
Activities)
Fallas v Mourlas [2006] NSWCA 32
 Falvo v Australian Oztag Sports
Association & Anor [2006] Aust Tort
Reports 81-831 (2 March 2006)

THE THREE RELATED DEFENCES
– Diminished standard of care
– Contributory negligence
– Voluntary assumption of risk
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”
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
The Test to Disentitle the
Defence

In each case the question must be
whether it is part of the purpose of the law
against which the the P has offended to
disentitle a person doing the prohibited
act from complaining of the other party’s
act or default
 Italiano v Barbaro (injury sustained while
parties were in the process of looking for
a spot to stage accident)
Illegality under the Civil Liability
Act

Section 54
– (1) A court is not to award damages in respect of
liability… if the court is satisfied that:
– (a) the person whose death, injury or damage is the
subject of the proceedings was, at the time of the
incident that resulted in death, injury or damage,
engaged in conduct that (on the balance of
probabilities) constitutes a serious offence, and
– (b) that conduct contributed materially to the risk
of death, injury or damage
The Scope of the section

The section applies ‘whether or not a
person whose conduct is alleged to
constitute an offence has been, will
be or is capable of being proceeded
against or convicted of any offence
concerned’
Self-Defence against Unlawful
conduct: (Part 7 CLA)

S52:The legislation provides
immunity to the defendant who
causes damage to the plaintiff while
acting in self-defence in
circumstances where the plaintiff’s
conduct that provoked the act of selfdefence was unlawful.
Self-Defence: The Scope

S52(2)The defence is only available ‘if and only if’ at
the time of the relevant act, the defendant believed the
conduct was necessary:
– (a) to defend himself or herself or another person, or
– (b) to prevent or terminate the unlawful deprivation of his
or her liberty or the liberty of another person, or
– (c) to protect property from unlawful taking, destruction,
damage or interference, or
– (d) to prevent criminal trespass to any land or premises or
to remove a person committing any such criminal trespass,
and the conduct is a reasonable response in the
circumstances as he or she perceives them
Self-Defence: The Scope
S54: Where D’s conduct is judged to be an
unreasonable response ‘a court is nevertheless
not to award damages against the person in
respect of the conduct unless the court is
satisfied that:
 (a) the circumstances of the case are
exceptional, and
 (b) in the circumstances of the case, a failure to
award damages would be harsh and unjust
