LAWS11069 Torts Assignment

NEGLIGENCE: DEFENCES

1 PREVIEW

1.1 Introduction

In a negligence action, the onus is on the defendant to establish the availability of any defences. This module examines the three main defences of voluntary assumption of risk (volenti non fit injuria), contributory negligence and illegality (eg joint illegal enterprise). In addition, the immunity offered in certain circumstances under the CLA will be discussed, as will the effect of disclaimers and exclusion of liability agreed to by the parties to an action.

Although voluntary assumption of risk, exclusion of liability by notice, and illegality are discussed in this Study Guide, you do not need to read Chapter 11 of the textbook. These topics are discussed here only as supplementary information and will not be assessed.

1.2 Objectives

On completion of Module 6, you should be able to:

• Understand the scope and definition of the defence of contributory negligence, illegality and voluntary assumption of risk at both common law and under statute;
• Outline the central factors taken into consideration by the courts in dealing with these defence; and
• Identify and apply appropriate defence(s) in particular fact scenarios.

1.3 Required Reading

• Martin Davies and Ian Malkin, Focus Torts (LexisNexis Butterworths, 9th ed, 2021), Ch 10, or
• Martin Davies and Ian Malkin, Focus Torts (LexisNexis Butterworths, 8 th ed, 2018), Ch 10.

1.4 Key Terms

• Damages: Compensation for damage suffered; a court-awarded sum of money which places the plaintiff in the position he or she would have occupied had the legal wrong not occurred.
• Contributory negligence: The failure of a plaintiff to take reasonable care for his or her own safety and well-being.
• Voluntary assumption of risk: A defence to a claim of negligence by which a plaintiff is denied recovery for an injury incurred as a result of the defendant’s negligence where the plaintiff has voluntarily exposed himself or herself to the risk of being injured.
• Joint illegal enterprise: A defence arising where both the plaintiff and defendant were engaged in a common illegal enterprise at the time of the alleged negligence.,/li>
• Volenti non fit injuria: There can be no injury to the willing.
• Obvious risk: A risk that, in the circumstances, would have been obvious to a reasonable person in the position of the plaintiff.

2 DEFENCES TO NEGLIGENCE

A defence is not strictly an element of a cause of action. It is a ‘negative element’. The plaintiff must prove the elements of negligence on the balance of probabilities. The defendant, in return, may plead and try to prove a defence, also on the balance of probabilities. If the defendant succeeds, the claim may partially or completely fail.

2.1 Contributory Negligence

Contributory negligence was a complete defence at common law. If the defendant could establish that the plaintiff’s own negligence contributed to the harm suffered, the plaintiff was denied a remedy. Statutory schemes in all Australian jurisdictions have modified the common law and now allow an apportionment of damages taking into account any negligence on the part of the plaintiff. In Queensland, s 10 of the Law Reform Act 1995 (Qld) provides:

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 –
   1. A claim in relation to the damage is not defeated because of the claimant’s contributory negligence; and
   2. 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.

Under the scheme, this means that contributory negligence is not technically a defence, but a way in which a reduction in damages may be made based on the plaintiff’s share of the responsibility for the damages. While often referred to as a partial defence (ie. liability of defendant is not completely reduced), the Civil Liability Act (CLA) 1983 (Qld) permits a plaintiff’s recoverable damages to be reduced by 100% by reason of contributory negligence (s 24).

To establish the defence, the defendant must prove that the plaintiff was at fault or negligent; that the fault or negligence of the plaintiff contributed to the injury or loss suffered by the plaintiff; and that the damage was a reasonably foreseeable consequence of the plaintiff’s fault or negligence, that is, the damage was within the risk created (s 23). While a plaintiff must take reasonable care for their own safety, in general, a more lenient approach is taken towards plaintiffs when establishing the standard of care required.

2.2 Voluntary Assumption of Risk (Volenti non fit injuria)

If a plaintiff, with full knowledge, voluntarily accepts the risk of injury, the defendant may raise the defence of volenti non fit injuria. For example, agreeing to take a flight with a drunken pilot.

If successful, the plaintiff will be denied a remedy as the defence is a complete defence to an action: Rootes v Shelton (1967) 116 CLR 383. In effect, it denies that a duty of care was owed by the defendant to the plaintiff.

The defendant must prove:

• That the plaintiff had full knowledge of the risk; and
• Voluntarily accepted the physical (risk of injury) and the legal risk (that reasonable care would not be taken by the defendant).

A subjective test is used to determine the plaintiff’s knowledge. In Canterbury Municipal Council v Taylor [2002] NSWCA 24, the NSW Court of Appeal held that the plaintiff must have knowledge of the risk, but also an actual belief that the risk would eventuate (and voluntarily accepted the risk). To act voluntarily, the plaintiff must have had a real alternative. For example, an employee will almost never be volenti, at least for risks inherent in the work, since an employee in taking a job is doing so to earn a living by accepting orders, and not simply to encounter the risks. Nor is a motorist ‘voluntarily assuming the risk’ of an accident simply by driving, since negligence is unacceptable on the roads, and driving a commonplace activity.

Volenti is a difficult defence to establish – largely due to the strict knowledge and consent requirements – and not commonly pleaded. As McGlone and Stickley note, this is ‘evident from a paucity of successful claims of volenti’ [Francis McGlone and Amanda Stickley, Australian Torts Law (LexisNexis Butterworths,ed, 2009) 299].

The Civil Liability Act does assist in some respects in cases where the defendant argues that the risk was an ‘obvious risk’ (ss 13-15), an ‘obvious risk arising from dangerous recreational activities’ (s 19) or the materialization of an inherent risk (s 16). For a recent Queensland case discussing obvious risks, see State of Queensland v Kelly [2015] 1 Qd R 577.

In relation to reliance on an intoxicated defendant, s 48(5) of the CLA precludes the defence of voluntary assumption of risk and instead creates a presumption that the plaintiff has been contributory negligent.

2.3 Illegality

Illegal conduct may give rise to a defence in two ways: firstly, when both the defendant and the plaintiff are engaged in illegal conduct together; or secondly, when the plaintiff is engaged in illegal conduct at the time of being injured.

The defence of joint illegal enterprise may prevent liability from arising in cases where both the plaintiff and the defendant are engaged in an illegal activity at the time of the negligence. If the plaintiff suffers damage caused by the defendant’s act or omission, the plaintiff will be precluded from recovering damages. To establish the defence, the defendant must prove that:

• The defendant and plaintiff were jointly engaged in an illegal activity; and
•  

While joint illegal enterprise provides a defence for the defendant, the issue of illegality is often relevant to the standard of care element. For example, in Jackson v Harrison (1978) 138 CLR 438, the High Court stated that the defence applies when the standard of care cannot be determined. For example, it is impossible for the law to determine what standard of care one robber should owe to their accomplice robber (see also Smith v Jenkins (1970) 119 CLR 397). In these circumstances, the result is that there is no duty of care owed from defendant to plaintiff.

An action in negligence may also fail if the plaintiff is engaged in illegal activity at the time of the negligence. At common law, a duty of care may still be owed to a plaintiff (compare the High Court’s approach in Jackson v Harrison) who is engaged in criminal conduct (eg a plaintiff thief who is injured by the defendant owner of the home he is breaking into).

Under s 45 of the CLA, a plaintiff who suffers personal injury while engaged in illegal conduct will be denied compensation if:

• The plaintiff was engaged in an indictable offence when the defendant breached his/her duty of care; and
• The plaintiff’s illegal conduct contributed to the risk of harm.

Indictable offences are generally more serious offences but it is not necessary for the plaintiff to be convicted of the offence for s 45 to apply to a civil action (s 45(4)). Under s 45(2) and (3), the court may still award damages to a plaintiff if the denial of civil liability would be harsh and unjust in the circumstances, but a reduction in damages is required under the Act.

2.4 Immunity from Civil Liability

2.4.1 Inherent Risks

The common law provides protection to a defendant for damage arising from an inherent risk. An inherent risk is one that cannot be avoided by the exercise of reasonable care (but reasonable care must still be taken by the defendant) (see for eg. Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460). Section 16 of the CLA restates this defence for negligence actions.

2.4.2 Rescue Cases

In the circumstances where the plaintiff is an injured rescuer coming to the aid of a person or property placed in danger by the defendant’s negligence, the defendant will not normally be able to raise the defence of volenti against the injured rescuer: Chapman v Hearse (1961) 106 CLR 112. In the case of an unreasonable or unnecessary attempt at rescue, volenti might succeed: see Cutler v United Dairies [1933] 2KB 297.

2.4.3 Public Safety Entities

The CLA provides protection for persons performing duties to enhance public safety for prescribed entities and the prescribed entities themselves, if aid or assistance is rendered to a person in distress (ss 26 and 27).

The entities protected are detailed in Schedule 1 and 2 of the Civil Liability Regulation 2014 (Qld). For the provisions to apply, there must have been an emergency and the assistance must have been provided in good faith without reckless disregard for the safety of the person in distress or another.

2.4.4 Volunteers

The CLA provides protection for volunteers carrying out community work in good faith (s 39). Section 38 defines ‘community work’ as ‘work that is not for private financial gain and that is done for a charitable, benevolent, philanthropic, sporting, recreational, political, educational or cultural purpose’. Protection under the Act does not apply to volunteers committing a criminal offence at the time of negligence or if under the influence of alcohol or drugs.

2.5 Exclusion of liability clauses

In some circumstances, the defendant may have stipulated a reduction or even an exclusion of liability in the event of any negligent action. If the plaintiff freely accepted that exclusion, then the defence of voluntary assumption of risk may apply.

Exclusion clauses are strictly construed which means that for a party to exclude liability in negligence, the clause or exemption must refer specifically to negligence or cover all bases of liability: Davis v Pearce Parking Station Pty Ltd (1954) 91 CLR 642 at 249. Australian courts are reluctant to interpret exclusion clauses as excluding tortious liability. See Evans v Port of Brisbane Authority (1992) Aust Torts Reports ¶81-181.

3 REVIEW

3.1 Tutorial Problems

Problem 1

Saul Richardson is the owner of two sugar cane plantations, Hightop and Sweetacre, approximately 10 kilometres apart. Late last year Saul instructed one of his employees, Bart, to drive a tractor from the Hightop plantation to the Sweetacre plantation. He also said that another employee, Nick, should accompany Bart on the tractor. In the presence of both men he explained that the tractor was unregistered and uninsured but said: ‘Don’t you worry about that, it’s only a short distance anyway.’

After Nick left to go get some tools to take with him, Saul warned Bart that he should be extra careful because: ‘The brakes are a bit dicey.’ After they had driven a few kilometres Nick suggested that they stop at the next hotel and have a few beers. They did so and then continued on their journey. Just before they reached the Sweetacre plantation they came to an intersection where each of the side roads was subject to a stop sign. Fiona Anderson, who was running late for an important meeting, was approaching the intersection along one of the side roads. She saw the tractor approaching but thought she could cross the intersection ahead of it. Unfortunately, she was wrong! Bart, who was involved in an animated conversation with Nick at the time, only saw Fiona at the last moment and was unable to stop the tractor in time. There was a collision in which Nick seriously injured his back.

Advise Nick as to any actions he may have in negligence against Saul, Bart and Fiona. You are to assume that a common law negligence action is available (ie. do not consider workers compensation) and that the parties are based in Qld. Ignore any issue of Saul Richardson’s vicarious liability for the actions of Bart. In your answer you should fully examine any defences which may be available in any actions brought by Nick. [Source: Tim Paine, Torts (LexisNexis, 3rd ed, 2012) 265]. [Effort 45 mins]

3.2 Debrief

On completion of Module 6, you should be able to:

• Understand the scope and definition of the defences of contributory negligence, illegality and voluntary assumption of risk at both common law and statute;
• Outline the central factors taken into consideration by the courts in dealing with these defences; and
• Identify and apply appropriate defence(s) in particular fact scenarios.