DEFENSES TO

NEGLIGENCE

Year 11
LEGAL
STUDIES

CONTRIBUTORY NEGLIGENCE
Occurs when the plaintif f fails to take reasonable care of his or
her own safety to such an extent that the lack of reasonable care
contributes to the damages or injur y received.
[Tort contributor y negligence]
D employed the deceased as a boiler maker. During the course of
his employment, he had been exposed to asbestos, which caused
him to develop asbestosis he developed lung cancer which
eventually killed him. D smoked and so contributed to the
negligence that caused his death.
Held: D did not take reasonable care for his own safety.
Continuing to smoke amounted to contributor y negligence which
was causative of lung cancer. A reasonably prudent man, warned
that there was a substantial risk that smoking would seriously
damage his health, would stop smoking.

ANOTHER EXAMPLE
C and D together in D's car drank considerable amounts of
beer in a pub. Whilst driving home C did not wear a seat belt.
D negligently caused an accident, whereby C was injured.
Held: The principle was recognized that a passenger can be
held to have been contributory negligent if he rides with a
driver who he knows has consumer alcohol in such quantity as
is likely to impair to a dangerous degree that driver's capacity
to drive properly and safely.
On the facts, the passenger was found guilty of 20%
contributory negligence.

VOLUNTARY ASSUMPTION OF RISK

The defence of voluntary assumption of risk is also known by
the Latin term volenti non fit injuria, meaning an injury cannot
be done to a willing person. It is available in circumstances
where plaintiffs knew, or should have known, there was a risk
and voluntarily placed themselves in a position where they
could be injured. It is a difficult defense for a defendant to
prove and is not commonly used. If successfully argued by the
defendant, the plaintiff will lose the case.
Participating in a sporting competition such as an aerial
skiing contest is a situation in which voluntary assumption of
risk may apply. A person may voluntarily agree to take part
knowing that the sport has obvious risks.

ASSUMPTION OF RISK
The Wrongs Act provides that a person should not be liable for
injury suffered as a result of an obvious risk. Recreational
service providers such as an underwater diving school or a
horse riding school are able to rely on a form signed by
participants exempting the provider from any claims for injury
should any occur as a result of the inherent risk.
The Wrongs Act also provides that the defence of voluntary
assumption of risk does not apply to claims for damages
relating to the provision of or failure to provide a professional
or health service. However, providers have the responsibility to
inform people of potential risks in accordance with opinions
widely accepted by other respected practitioners.

OTHER DEFENSES
No duty of care was owed. A defendant relying on this defense
would claim that it was not reasonable to foresee that the
actions would cause the loss or damage suf fered.
The duty of care was not breached. A duty of care is not
breached if the defendant acted as any normal person would and
the injur y was the result of an accident or could not reasonably
have been stopped. For example, at a cricket match a ball may
be hit into the spectator area and possibly injure someone; it
may not be feasible to fence the entire ground to avoid such a
possibility.
No damage occurred or the injur y was caused by other means.
The defendant claims that although they may have breached
their duty of care to the plaintif f, the plaintif f suf fered no
damage. Alternatively, the defendant may claim that the damage
or injur y suf fered by the plaintif f was not the result of the
defendants breach.

LEGISLATIVE CHANGES
As negligence disputes have increased in volume and the
amounts awarded to successful plaintiffs have grown,
legislators have intervened and clarified the law relating to
negligence.

LEGISLATIVE CHANGES
I n V i c to r i a , a m e n d m e n t s to t h e Wr o n g s A c t w e r e m a d e t h a t i n c l u d e t h e f o l l o w i n g k ey
reforms:
P e o p l e w h o h e l p o t h e r s i n e m e r g e n c i e s ( g o o d S a m a r i t a n s ) c a n n o t p e r s o n a l l y b e s u e d f o r
c o n d u c t t h a t m ay c a u s e i n j u r y.
Vo l u n t e e r s p r o v i d i n g s e r v i c e s i n r e l a t i o n to c o m m u n i t y w o r k a l s o a r e p r o t e c t e d f r o m c i v i l
liability for their actions.
P e o p l e w h o d o n a t e f o o d i n g o o d f a i t h f o r a c h a r i t a b l e p u r p o s e c a n n o t b e l i a b l e f o r i n j u r y
caused by the consumption of that food.
B u s i n e s s e s t h a t o f f e r r e c r e a t i o n a l a c t i v i t i e s w h e r e t h e r e i s a n o b v i o u s r i s k c a n a v o i d
liability by including a contractual statement (a waiver) that par ticipation is at the
p e r s o n s o w n r i s k . H o w e v e r, t h i s d o e s n o t a p p l y i f t h e p r o v i d e r w a s g r o s s l y n e g l i g e n t .
A p e r s o n w h o i s i n v o l v e d i n a c r i m i n a l a c t i v i t y, o r i s u n d e r t h e i n f l u e n c e o f a l c o h o l o r
o t h e r r e c r e a t i o n a l d r u g , m ay l o s e t h e r i g h t to s u e f o r n e g l i g e n c e o r h a v e d a m a g e s
reduced by a significant percentage.
A n a p o l o g y o r s t a t e m e n t o f r e g r e t b y a d e f e n d a n t a b o u t t h e p l a i n t i f f s i n j u r i e s c a n n o t b e
r e g a r d e d a s a n a d m i s s i o n o f l i a b i l i t y.
To s u e f o r n o n - e c o n o m i c l o s s ( f o r e x a m p l e , p a i n a n d s u f f e r i n g a n d p s y c h i a t r i c i n j u r y ) t h e
claimant must prove that he or she has a permanent significant injur y; for example, the
loss of a breast or loss of a foetus.
T h e m a x i m u m a m o u n t t h a t c a n b e c l a i m e d f o r n o n - e c o n o m i c l o s s i s a d j u s t e d a n n u a l l y. A s
o f 1 J u l y 2 01 1 t h e a m o u n t i s $ 47 2 5 0 0 .
D a m a g e s f o r t h e l o s s o f e a r n i n g c a p a c i t y a r e c a p p e d a t t h r e e t i m e s a v e r a g e w e e k l y
earnings.
D a m a g e s m ay b e p a i d o v e r t i m e i n a s t r u c t u r e d s e t t l e m e n t .