LWB147 Week 11 Lecture Notes
Defences to Negligence
Plaintiffs must prove on the balance of probabilities:
Duty of care
Breach of that duty
Defendants must prove on the balance of probabilities:
Consider common law and Civil Liability Act for:
Volenti non fit injuria
Joint illegal enterprise
Other ways for action to fail:
Defence 1: Contributory Negligence
Failure to take reasonable care of own safety.
Joslyn v Berryman – court held plaintiff guilty of contributory negligence where they expose themselves to a
risk of injury which might reasonably have been foreseen and avoided and suffers injury within the class of
the risk to which plaintiff exposed themselves.
Commissioner of Railways v Ruprecht – court held that contributory negligence is different to negligence in
that there is no duty of care owed to another person and contributory negligence involves conduct which
exposes to actor to the risk without necessarily exposing others to risk.
Elements of Contributory Negligence
Fault + Contributed to foreseeable injury = Contributory negligence
1. Plaintiff at fault
This is a question of fact.
The court will look at the circumstances to determine whether the plaintiff has fallen below the standard of
care. The standard of care is determined by the courts and is based on what a reasonable person would have
done under the circumstances to protect their own safety.
Vairy v Wyong Shire Council (2005) 223 CLR 422.
Refer to Civil Liability Act 2003 (Qld) s 23.
See s 9(2) for calculus of negligence.
2. Contributed to the foreseeable injury/loss suffered by plaintiff
Fitzgerald v Penn (1954) 91 CLR 268
March v Stramare (1991) 171 CLR 506
Kirk v Nominal Defendant  1 QdR 592
Monie v Commonwealth 
Failure to wear a safety belt may amount to contributory negligence.
Some states have legislation: not Queensland, therefore need to prove contributory negligence.
Eagles v Orth  QdR 197: plaintiff held to be 15% contributory negligent. Within the Risk
The damage suffered by the plaintiff was a reasonable foreseeable consequence: not too remote.
Gent-Diver v Neville  St R Qd 1: held headlight not cause of accident.
If contributory negligence is established
Originally, complete defence at common law.
Now, Law Reform Act 1995 (Qld), s 10:
(1) If a person (the claimant) suffers damage partly because of the claimant's failure to take
reasonable care (contributory negligence) and partly because of the wrong of someone else—
(a) a claim in relation to the damage is not defeated because of the claimant's contributory
(b) the damages recoverable for the wrong are to be reduced to the extent the court considers
just and equitable having regard to the claimant's share in the responsibility for the damage.
Law Reform Act 1995 (Qld), s 5 defines ‘wrong’ including tort and contract:
wrong means an act or omission that—
(a) gives rise to a liability in tort for which a defence of contributory negligence is available at
common law; or
(b) amounts to a breach of a contractual duty of care that is concurrent and coextensive with a
duty of care in tort.
Just and Equitable
Under s 10 the court must reduce damages to the extent ‘just and equitable’.
In an exam, not expected to come up with the percent courts would reduce damages by, but rather the
circumstances under which courts would reduce sentences and case examples of factors taken into
consideration and percentage reduced by which are relevant.
Pennington v Norris (1956) 96 CLR 10
o Defendant ran over plaintiff. Plaintiff claimed defendant drove negligently, defendant claimed
plaintiff failed to keep proper lookout.
o Liability apportioned to 50% for plaintiff, which is a considerably large apportionment.
o High Court reduced this to 20% on appeal.
o Court thought negligence of both was important. The defendant was driving considerably fast and
in an area where there was a significant number of people on streets. It was a wet and misty night.
Negligence of was defendant found higher than of plaintiff. Court said plaintiff endangered
themselves (no one else) by not looking out properly, whereas defendant was endangering others
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529.
o The court compared the conduct of each party and how far each deviated from the objective
o Court decided 90% liability of plaintiff which is a very high percentage of liability.
100% Contributory Negligent
Not at common law Wynbergen v Hoyts Corp Pty (1997) 149 ALR 25.
Now see s 24 Civil Liability Act 2003 (Qld) which states a court may reduce damages by 100% if the court
considers it just and equitable to do so.
Civil Liability Act presumes contributory negligence in certain circumstances.
CLA s 47: plaintiff intoxicated.
CLA s 48: defendant is intoxicated.
CLA s 49: plaintiff relying on an intoxicated defendant when driving a motor vehicle. Civil Liability Act
See definition of intoxication in Schedule 2.
When the plaintiff is intoxicated.
See s 47 Civil Liability Act 2003 (Qld.)
Presumption of contributory negligence.
Minimum reduction of 25%.
If driver of motor vehicle 50%.
Rebut presumption s 47(3) by showing intoxication not contribute to breach.
See s 48 for when plaintiff relies on an intoxicated defendant.
Presumption of contributory negligence.
Minimum reduction of 25%.
Can rebut presumption s 48(3) if defendant’s intoxication did not contribute to the breach or unreasonable
not to rely.
Section 48(5) volenti not apply if defendant is intoxicated.
Section 49 of Civil Liability Act
Intoxicated defendant driving a motor vehicle.
Plaintiff was a passenger.
Minimum reduction 50%.
Volenti Non Fit Injuria
Complete defence: ‘There can be no injury to the willing’.
Defendant must establish that the plaintiff voluntarily accepted the risk of being injured.
Acceptance may be express or implied.
See Letang v Ottawa Electric Railway Co  AC 725 at 731 for definition.
Smith v Charles Baker & Sons  AC 325 – the plaintiff employee said defendant negligent in operation of
crane and by failing to warn plaintiff of falling rocks, was negligent.
Knowledge of the Risk + Acceptance of the Risk = Volenti Non Fit Injuria.
1. Knowledge of the risk
Not enough to say plaintiff aware of inherent risks of the activity.
Joslyn v Berryman.
Canterbury Municipal Council v Taylor.
Civil Liability Act
See ss 13-19.
Definition of obvious risk in s 13.
Reverse onus of proof in s 14 where plaintiff may prove they were not aware of the risk.
Dangerous recreational activities ss 18-19.
Fallas v Mourlas  NSWCA 32.
Falvo v Oztag  NSWCA 17.