LAW 1507 Lecture Notes - Lecture 7: All England Law Reports, Berrigan Shire, Harlow
30 Jun 2018
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Department
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Professor
LECTURE DEFENCES TO NEGLIGENCE
Not necessary which order to discuss- depends on case
Do defences first then damages and broad principles required to determine damage
Negligence do each action then move on
If you have defined what something is once don’t keep repeating
Chronological Order
Plaintiff establishes-
- Duty
- Breach
- Causation/Remoteness
- Damages
Defendant argue that the Plaintiff cannot establish these and they didn’t breach the
duty and if they did it didn’t cause the harm
Defence submissions in the alternative arguing that damages not be paid or reduced
Contributory negligence originally had the latter as a complete defence but is no
longer the case hence Contributory negligence see Tankship Case
Voluntary assumption of Risk (Volenti non fit injura), Illegality
Contributory Negligence
Where the plaintiff did something that exacerbated the injury or the risk of the
event was increased
Now operates to reduce damages, rarely to no damages being recovered
Damages only talking about broad principles, no need to give exact amounts
See definition of Contributory negligence on slides Use Civil Liability Act
definition s3
Failure to meet standard of care for yourself
1
Melissa Sparrow (a1668063)
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Process of standard of care s44 (1) Civil Liability Act
Berrigan Shire Council case and Joslyn v Berryman (2003) 214 CLR 552 (16)
McHugh See Slides
3 Categories that may lead to Contributory Negligence
Joint Cause of accident- the actual event
Increase Risk of Harm
Failing to take safety measures for your own safety
What is just and equitable in the circumstances to apply as a remedy?
Process IMPORTANT
Step 1- Calculate Damages in the absence of contributory negligence s50 (2) CLA
Step 2- Reduce damages by the amount that is just and equitable s50 (3) a and b
CLA
Step 3- Consider Fixed Statutory Reductions s50 (4), (5) CLA See Slides
Froom v Butcher [1976] QB 286 Principles
Negligence depends on a breach of duty, contributy negligence does not
Contributory negligence is carelessness in looking after your own safety
The injured plaintiff is in no way to blame for the accident itself
The cause of the accident is one thing, the cause of the damage is another
The person injured must bare some share of the blame
Caterson v Commissioner for Railways (1973) 128 CLR 99 determined there was
no contributory negligence because the plaintiff had to act in a way out of necessity
that put them in damger there is no contributory negligence
Sayers v Harlow Urban District Council [1958] 2 All ER like me got stuck in a
public toilet up until the point where she put her foot on the toilet roll she had no
2
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Document Summary
Not necessary which order to discuss- depends on case. Do defences first then damages and broad principles required to determine damage. Negligence do each action then move on. If you have defined what something is once don"t keep repeating. Defendant argue that the plaintiff cannot establish these and they didn"t breach the duty and if they did it didn"t cause the harm. Defence submissions in the alternative arguing that damages not be paid or reduced. Contributory negligence originally had the latter as a complete defence but is no longer the case hence contributory negligence see tankship case. Voluntary assumption of risk (volenti non fit injura), illegality. Where the plaintiff did something that exacerbated the injury or the risk of the event was increased. Now operates to reduce damages, rarely to no damages being recovered. Damages only talking about broad principles, no need to give exact amounts. See definition of contributory negligence on slides use civil liability act definition s3.
