LWZ116 Lecture Notes - Lecture 8: William Gummow, Firstclass, Susan Kiefel
Lecture 8
Torts
NEGLIGENCE DEFENCES
Even if the Plaintiff proves that he or she was negligently injured by the Defendant, damages may be
reduced or denied on the basis of a defence, namely:
1. Contributory Negligence;
2. Voluntary assumption of risk (volenti non fit injuria)
3. Illegality (ex turpi causa non oritur actio)
CONTRIBUTORY NEGLIGENCE
Contributory negligence is the failure of the plaintiff to take reasonable care for his or her own safety in a
manner which contributes to the accident or loss.
Under section 16 of Law Reform (Miscellaneous Provisions) Act 1956 (NT)
Apportionment of Liability
1.1) If a person suffers damage as the result partly of the person's failure to take
reasonable care and partly of the wrong of another person or other persons:
a) a claim in respect of the damage is not defeated by reason of the contributory negligence of the
person suffering the damage; and
b) the damages recoverable in respect of the wrong are to be reduced to the extent the court thinks
just and equitable having regard to the claimant's share in the responsibility for the damage.
The Plaintiff can contribute in their injury in three ways:
1) Contribute to the accident which caused the injuries – In Cork v Kirby MacLean Ltd [1952] 2 All ER
402, The plaintiff’s husband was killed when he had an epileptic fit and fell from a painting platform
20 feet above the ground. The platform was unsafe, because it did not comply with the statutory
safety regulations, but the plaintiff’s husband had also been negligent in not informing his employer
that his doctor had forbidden him to work at heights because he could not suffer a fit and then fall.
The court said, ‘If you can say that the damage would not have happened but for the particular
fault, then that fault is in fact a cause of the damage: but if you can say that the damage would
have happened just the same, fault or no fault, then the fault is not a cause of the damage’
Also In Griffith v Doolan [1959] Qd R 30 a child of five and a half ran in front a truck and was held 10
percent responsible; Poole v STA (1982) 31 SASR 74)
2) Expose themselves to a foreseeable risk of being involved in an accident; or
3) Fail to take reasonable precautions to minimise injuries should an accident occur (Eagles v Orth
[1975] Qd R 197; In Kirk v Nominal Defendant [1984] 1 Qd R 592) it was not a community standard
to wear tough clothing whilst riding on a motorcycle. Accordingly, the plaintiff was not contributory
negligent for failing to wear tough clothing.
VOLUNTARY ASSUMPTION OF RISK
The defendant must prove an (express or implied) agreement between the parties whereby the plaintiff
has consented to accept both:
1
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Document Summary
Even if the plaintiff proves that he or she was negligently injured by the defendant, damages may be reduced or denied on the basis of a defence, namely: Negligence defences: contributory negligence, voluntary assumption of risk (volenti non fit injuria) Contributory negligence is the failure of the plaintiff to take reasonable care for his or her own safety in a manner which contributes to the accident or loss. Under section 16 of law reform (miscellaneous provisions) act 1956 (nt) The plaintiff can contribute in their injury in three ways: contribute to the accident which caused the injuries in cork v kirby maclean ltd [1952] 2 all er. 402, the plaintiff"s husband was killed when he had an epileptic fit and fell from a painting platform. [1975] qd r 197; in kirk v nominal defendant [1984] 1 qd r 592) it was not a community standard to wear tough clothing whilst riding on a motorcycle.
