At common law contributory negligence is a complete defence. (in certain
sit) Contributory negligence is now a partial defence at common law. Plaintiff is treated as defendant. Div 8 Part 1A. o Contributory negligence can extend out to 100% s5S A person who is partially responsible, we have to find a rationale for holding plaintiff ought to be made responsible. Owe a duty to ourselves, if we dont discharge that duty then we will put a burden on society. Whether there was breach? If duty was breached, did the breach cause the harm? Quantum of harm is taken off the quantum of harm alleged by true defendant.
Breach o o o
o o
An objective standard? 5R(1) same principles that apply in s5B
For that purpose 5R(2) is an objective standard, what person knew or ought to have known at the time. Doubleday v Kelly (2005) s5R o Trampoline case o Treating children as a reasonable person at that age. o Completely rejected child be a reasonable adult. The Ipp Panel recommended it to prevent leniency on plaintiff. Exception: standard of care approach o The rule in bywall castle (Ship cases) o Agony of the moment rule o Imagine two individuals in a motor car in SA driving on a highway connects Port Lincoln to Port Augusta. Port Augusta lead in the grounds of school, Lincoln sharks. Camels and desperate exile policeman with a speed camera. Shelly and Zelly south Australian supreme court 1971. One of them doses off. The passenger wakes up and realises car is in wrong direction. If driver in negligent on evidence then it is unexceptional. o Contributory Negligence? No because passenger acted in agony of the moment. Did the alleged contributory negligence cause the harm? o The trap? What youre saying as a defendant is that the behaviour of the defendant added to the harm. o Some quantum of the harm was caused by ? o The harm wouldnt be as bad but for the plaintiffs action o Quantum of harm is reasonably foreseeable.
Causal Conduct o o
Contributory neg must be causally related to the harm
That harm must have been within the scope of the risk Jones v Livox Quarries Ltd.
Apportionment
How much harm was caused by the plaintiff
o Comparative Culpability o Relative importance of the causative acts of the parties causing damage.
100% contributory negligence
o o
In common law this is not legally possible Wynbergen v Hoyts
NSWCA reluctant to hold 100% contributory negligence.
Presumed contributory negligence?
Voluntary Assumption of Risk (aka volenti, assumption of risk)
Main difference between Volenti and contributory negligence is the
knowledge requirement in defences. The knowledge test in Volenti is a subjective test, the defendant has to prove on the balance of probabilities that plaintiff had known of the risk. S5G and s5H of Civil liability Act and Carey Case. Div 4 of CLA is about voluntary assumption of risk. Carey case is a cont neg. S5F is about obvious risk. You cannot use s5F to s5B it is only the use of Div 4. In carey case o Bollard was an obvious risk, no requirement to warn. o You dont have to prove knowledge of the defendant but prove that the bollard was obvious o The plaintiff is presumed to be aware of an obvious risk. o Objective test and rebuttal assumption o It is one thing to say that it is presumed that plaintiff knew the risk. o On a day to day basis people expose themselves to risks without thinking about that, o The defendant has to prove that they have completely appreaciated the danger and voluntary accepted that risk. o 5G defendant faces, o Voluntary accepted the risk o Three elements Perceive the existence of risk Fully appreciates danger (subjective) Voluntary Accept. o Re-read Carey v Lake case.
Recreational Activities.
Division 5 of CLA has wide application.
Use of obvious risk in CLA in Div 5 has same meaning in Div 4 Dangerous recreational activity o Means a recreational activity that involves a significant risk of physical harm. What is recreational activity? Defined Significant risk? Case Law Physical Harm. 5L
1) A person (the defendant) I not liabile in negligence for harm
suffered by another person .. Obvious risk Dangerous recreational activity Significant risk? Fallas v Mourlas Questions are: o Is the activity a dangerous recreational activity? Activity was a dangerous recreational activity. Interpretation of s5K. o Was the risk materialised an obvious risk? Yes Contrary o What is a significant risk for the establishment of a dangerous recreational activity Tobias and Ipp said it was.. The word significant means more than trivial and more rigorous (Ipp) o What evidence would suffice for risk? Epidem evidence Expert evidence Logic Common sense Experience Circumstances of case o Is the risk in this case significant? Justice ipp and tobias significant
o What for 5k the activity engaged in? level of specificity?
o Was the risk obvious? Do we have a coincidence set of obviousness and significance or are they unrelated sets? Justice Ipp No doesnt have to be the same Justice Bastan contrary o Holds that the risk can never be obvious if it was grossly negligently performed. (Justice Ipp) o Gross Negligence Recklessness o CLA will cover intentional activities provided but not intended for personal injury?? o IPP cant be obvious grossly negligent. o Position of plaintiff includes knowledge and experience of the relevant area. o Valuble Dicta. The expressed purpose of CLA is to limit recovery and damage in regards to neg. o Laoulach Case o For a risk to be significant there has to be a finding 1) more than trivial 2) Real chance of risk materialiing