Defences to the Tort of Negligence
DEFENCES TO NEGLIGENCE
Up to the D to prove that the P’s also did not exercise the same reasonable standard of care for the community
CONTRIBUTORY NEGLIGENCE
* Contributory negligence involves a failure by the P to take reasonable care for his or her own safety that contributes to his or her damage
* Apply section 5R – need to show that the P failed to take reasonable care for his or her safety or for the protection of the P’s interest * It is an objective standard that is judged against the P * Reject P’s idiosyncrasies * Reject P’s intoxication * Take into account the P’s age
* Once this is satisfied, then the negligence must be proved that it was a cause of the P’s harm, and that the harm that eventuated was within the risk created by the P’s conduct * CN must be within the scope of the risk created by the CN – Jones v Linox Quarries * The P need not be the cause of the damage, it is enough that they aggravated the damage – Froom v Butcher
* Standard of care or the ‘reasonableness’ of the P’s conduct – page 1-2 * Presumed CN: section 50 – no recovery were a person is intoxicated
VOLUNTARY ASSUMPTION OF RISK
* P who takes the risk of injury upon themself has no claim & cannot recover damages.
* P who puts themselves in a position where the risk might eventuate, cannot recover damages if he suffers harm
* To prove, must have:
* Full knowledge of the risk * Section 5F & 5G *
* an unpressured decision to run the risk in question (voluntariness) * Common law * A person who was constrained by the circumstances and was constrained from making a free choice will not be regarded as acting voluntarily * This is not met if: * P has a brief interval to make their decision * Where the alternative would cause significant inconvenience *
Up to the D to prove that the P’s also did not exercise the same reasonable standard of care for the community
CONTRIBUTORY NEGLIGENCE
* Contributory negligence involves a failure by the P to take reasonable care for his or her own safety that contributes to his or her damage
* Apply section 5R – need to show that the P failed to take reasonable care for his or her safety or for the protection of the P’s interest * It is an objective standard that is judged against the P * Reject P’s idiosyncrasies * Reject P’s intoxication * Take into account the P’s age
* Once this is satisfied, then the negligence must be proved that it was a cause of the P’s harm, and that the harm that eventuated was within the risk created by the P’s conduct * CN must be within the scope of the risk created by the CN – Jones v Linox Quarries * The P need not be the cause of the damage, it is enough that they aggravated the damage – Froom v Butcher
* Standard of care or the ‘reasonableness’ of the P’s conduct – page 1-2 * Presumed CN: section 50 – no recovery were a person is intoxicated
VOLUNTARY ASSUMPTION OF RISK
* P who takes the risk of injury upon themself has no claim & cannot recover damages.
* P who puts themselves in a position where the risk might eventuate, cannot recover damages if he suffers harm
* To prove, must have:
* Full knowledge of the risk * Section 5F & 5G *
* an unpressured decision to run the risk in question (voluntariness) * Common law * A person who was constrained by the circumstances and was constrained from making a free choice will not be regarded as acting voluntarily * This is not met if: * P has a brief interval to make their decision * Where the alternative would cause significant inconvenience *