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Defending against a negligence claim!

 

Once a plaintiff has raised allegations of negligence against a defendant, the defendant then needs to prove defences to the claim raised. There are various options in raising a defence and two of the possibilities is contributory negligence and voluntary assumption of risk. 

 

Where a plaintiff has failed to take reasonable care in the act which caused their injury, the defendant may rely on the argument of contributory negligence in shifting a portion or the whole blame onto the plaintiff. 

 

The Wrongs Act 1958 (Vic) section 63 says: In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated. The same provision applies for NSW under section 5S of the Civil Liability Act 2002. 

 

In Butterfield v Forrester (1809) the defendant had wrongly placed a pole across the highway. This pole was visual for some 100 metres away. The plaintiff road his horse into the pole and suffered injury. The court held the defendant was not liable, as the plaintiff’s lack of care resulted in his injury. 

 

In Joslyn v Berryman; Wentworth Shire Council v Berryman (2003) Joslyn and Berryman were at a party and had consumed alcohol. They both left the party together by vehicle and Berryman was driving. Joslyn noticed Berryman falling asleep, she offered to drive and Berryman accepted. Though Berryman new that Joslyn had not driven for three years and also had lost her licence. An accident occurred when Joslyn was turning on a bend and Berryman was seriously injured. Berryman then sued Joslyn for negligent driving and the council for failing to have proper warning signs on the road. The question for the court was whether contributory negligence should apply to Berryman for letting Joslyn drive the vehicle. The court held Berryman was negligent as he allowed an intoxicated person to drive the vehicle who did not hold a valid driving licence, which a reasonable person in the same circumstance would not permit to happen. 

 

Where contributory negligence claims are raised, both NSW and Victoria, have enacted legislation that assist in the proportion of the damages relevant to the circumstance of the incident. 

 

The best advice to avoid situations where intoxication may result in car accidents, is to not drink and drive. 

 

Where a plaintiff raises a negligence claim they also have to show they took reasonable care for their own safety. 

 

The Wrongs Act 1958 section 62 says: Standard of care for contributory negligence

(1) The Principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributory negligent in failing to take precautions against the risk of that harm. 

(2) For that purpose - 

(a) the standard of care required of the person who suffered harm is that of a reasonable person. in the position of that person; and 

(b) the matter is to be determined on the basis of what a person knew or ought to have known at the time. 

 

The standard of care of a plaintiff will be lowered at specific times, such as where a child or a person with intellectual disabilities is injured, as they are not expected to have the same standard of care as that of an adult. 

 

Where the plaintiff due to the defendant’s negligence is confronted with several options to act upon, and without time to reason the choice and in the agony of the moment, with each option leading to potential injury, the plaintiff’s choice will not result in contributory negligence. The plaintiff’s action will be based on the reasonable person test.

 

The main elements for the defence of contributory negligence that need to be proved by the defendant is: (1) the plaintiff failed to take precautions that a reasonable person would have taken for their own protection; (2) the damage was reasonably foreseeable and was contributed to by the plaintiff . 

 

The defence of voluntary assumption of risk applies where the plaintiff consents to the risk. In this circumstance the defendant has no liability for the plaintiff’s injuries. However, subject to the facts of the case, the courts usually find that there was some level of contributory negligence by the plaintiff.  

 

The main elements of voluntary assumption of risk is that the plaintiff knew of the facts constituting the risk, they fully appreciated the risk, they freely consented to that risk. The essential point is that the plaintiff must have actual knowledge of the risk. Doing licensed bungee jumping is a good example, where the plaintiff is required to sign a waiver acknowledging the full risks of the activity. If the plaintiff is intoxicated or cannot assess the risk then the defence of voluntary assumption will not apply. The defence of voluntary assumption has been abolished in particular areas of the law to be inline with public policy and perceptions of what is just and fair. 

 

In McNamara v Duncan (1971) the plaintiff was playing Aussie rules football and received a fractured skull as a result of the defendant who was on the opposing team. The plaintiff claimed against the defendant on the argument that defendant’s actions were intentional. The defendant claimed that the injury sustained was a consequence of playing football. The question for the court was whether participating in the football game by the plaintiff was acceptance of the voluntary assumption of risk of injury occurring. The court held the head blow by the defendant was intentional and the defendant was held liable for the injury sustained. 

 

In Imperial Chemical Industries Ltd v Shatwell [1965] the plaintiff were engaged as explosive experts. The plaintiff accidentally set off explosives and were injured. The plaintiff had not followed the applicable regulations with explosive handling. The plaintiff raised a claim against their employer. The question for the court was whether the defendant, the plaintiff’s employer, could rely on the defence of voluntary assumption of risk. The court held the defendant could rely on the defence of voluntary assumption of risk as the plaintiff was in full knowledge of the risk with the use of explosives. 

 

The defendant who raises a defence against a negligence claim must show that the plaintiff has failed to observe the requisite standard of care, and that failure contributed to the damage that the plaintiff suffered; or that the plaintiff voluntary accepted the risk with full understanding and knowledge of that risk. Raising a defence against another party requires diligence with the assessment of the facts. So before allegations are raised, get that legal advice to protect your legal rights and interests. 

 

The comments in the aforementioned do not constitute legal advice and are general in nature, and if legal advice is required please contact: John Melis at Legal AU Pty Ltd (03) 9999 7799 www.legalau.com 

 

Legal AU Pty Ltd Lawyers are “Liability limited by a Scheme approved under Professional Standards Legislation.”