LAW 1507 Lecture Notes - Lecture 8: Contributory Negligence, Indictable Offence, Owen Dixon
23 May 2018
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Defences (becomes mixed with damages)
There are no relevant defences to be raised by D/ There is nothing on the facts to warrant a
discussion on defences or damages.
D ay raise the defee of… This ill (apportio liaility/ abrogate liability) if he/she can proe…
• consideration of all surrounding circumstances including the behaviour of P
• complete or partial defences (abrogation or apportionment)
• courts endeavour to balance the liability equation, there is an expectation that
individuals are accountable for their own actions. P and D can both be negligent
• D must state defences, bares onus of proof. Defences are aimed to escape or limit
liability
• D will contend that P cannot establish the elements of the negligence action because
they have a defense
3 Types of defences
1. Contributory Negligence
2. Voluntary assumption of risk (volenti non fit injuria)
3. Illegality
Contributory Negligence
Contributory Negligence arises when the plaintiff's own negligence contributed to its own
injuries Froom v Butcher [1976] 1 QB 286
Damages are effected (re-seatbelt): Contributory negligence is presumed where the P did not
ea a seatelt s 9 CLA … as ot eaig a seatelt… According to s 50(3)(a) and s
50(3)(b) the damages will be reduced. Using s 49, there will be a fixed statutory reduction of
25%.
Whilst contributory negligence used to be a complete defence to negligence, it now only
reduces the damages recoverable by the plaintiff.
Fous is o Ps pe-accident behaviour.
Froom v Butcher [1976] 1 QB 286
▪ Negligence depends on a breach of duty, contributory negligence does not
▪ Cotiuto egligee is aelessess i lookig afte oes o safety
The standard of care will not be breached if the plaintiff acted reasonably 'in the agony of the
moment'. Weigh up risk taken by the plaintiff's action against degree of danger caused by the
defendant Sabley v Kais(1967) 118 CLR 424; Caterson v Commissioner for Railways (1973) 128
CLR 99;Avram v Gusakoski [2006] WASCA 16
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▪ (Joslyn v Berryman (2003) 214 CLR 552 [at 16]) – At common law a P is guilty of
C/N when the P exposes them self to a risk of injury which might have reasonably
been foreseen and avoided and suffered an injury within the class of risk which
the P was exposed. Per Mc Hugh J
▪ The standard of care may be breached for failing to anticipate the negligence of
others, in cases where the reasonable man would be likely to guard against such
negligence Grant v Sun Shipping Co Ltd[1948] AC 549, 567
▪ The standard of care may be mandated by statutory safety requirements or
community standards.
▪ Special rules apply to intoxication. See CLA
Causation (Casual relevance to harm)
.B eig a joit ause of the aidet, fo eaple he the plaitiffs diig is aeless
and contributes to the accident
2. By increasing the risk of harm, for example by taking a lift with a driver adversely affected
by alcohol
3. By failing to take safet easues fo oes o safety, for example failing to wear safety
equipment, which aggravates the damage caused primarily by the negligence of the
defendant
4. Causation - the plaintiff's action need not be the original cause of the damage, it is enough
that it aggravated the damage (Froom)
5. The plaintiff's contributory negligence liability for his own damages extends only to those
damages which are not too remote. Jones v Livox Quarries Ltd[1952] 2 QB 608.
Apportioned Damages
If these requirements are satisfied, contributory negligence is found and the court will
apportion damage according to relative faults.
▪ Podrebersek v Ausralian Iron and Steel Pty Ltd(1985) 59 ALJR 492,
"as the out thiks just ad euitale haig egad to the laiats shae i the
responsibility for the damage". This involves "a comparison both of culpability, ie
of the degree of departure from the standard of the reasonable man...and of the
relative importance of the acts of the parties in causing the damage."
▪ Pennington v Norris (1956) 96 CLR 10, per Dixon CJ, Webb, Fullagar and Kitto JJ
at 16
What has to e doe is to aie at a just ad euitale appotioet etee
the plaitiff ad the defedat of the esposiilit fo the daage. It sees
clear that this must of necessity involve a comparison of culpability. By
ulpailit e do ot ea oal laeothiess ut degee of departure
fo the stadad of ae of the easoale a.
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
There are no relevant defences to be raised by d/ there is nothing on the facts to warrant a discussion on defences or damages. P and d can both be negligent: d must state defences, bares onus of proof. Defences are aimed to escape or limit liability: d will contend that p cannot establish the elements of the negligence action because they have a defense. 3 types of defences: contributory negligence, voluntary assumption of risk (volenti non fit injuria, illegality. Contributory negligence arises when the plaintiff"s own negligence contributed to its own injuries froom v butcher [1976] 1 qb 286. Damages are effected (re-seatbelt): contributory negligence is presumed where the p did not (cid:449)ea(cid:396) a seat(cid:271)elt (cid:894)s (cid:1008)9(cid:894)(cid:1005)(cid:895) cla(cid:895) (cid:449)as (cid:374)ot (cid:449)ea(cid:396)i(cid:374)g a seat(cid:271)elt according to s 50(3)(a) and s. Using s 49, there will be a fixed statutory reduction of.
