Defences


 * __ Contributory Negligence __**
 * NOTE:** Contributory Negligence (CN) is not a complete defence, only allows leniencey in damages.

__Wrongs Act Provisions__ (a) except as provided in s.63, Ps claim is not defeated by reason of her CN; (b) the damage recovered from D must be reduced to the extent the court thinks just and equitable, having regard to Ps share in the responsibility for the damage.
 * **s.26(1) –** If P suffers damage partly as a result of her CN and partly as a result of Ds negligence:
 * **s.63 –** in determining the extent of a reduction in damages by reason of CN, 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.

__1. P failed to take reasonable care of their own safety__
 * à Elements of CN**
 * **s.62(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 CN in failing to take precautions against he risk of that harm.
 * **s.62(2) –** the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and the matter is to be determined on the basis of what that person knew or ought to have known at the time.
 * **Sudden Emergencies** – If Ds act places P in an emergency situation, the standard expected of the P to look after himself will be lowered. If the P acts dangerously in looking after themselves, because of a situation the D has put them in, they shouldn’t be judged too harshly. This may also apply to situations of huge inconvenience: **//Caterson v Commissioner for Railways//**.
 * **The P anticipates another person’s negligence** – A reasonable person will be expected to be alert to, and to guard against, the possibility that other people may be negligent: **//Jones v Livox Quarries.//**


 * e.g. Drunk Drivers –** If a passenger accepts a lift with a driver that they ought to have known was too drunk to drive, they will be CN: **//Insurance Commissioner v Joyce//**.
 * e.g. Drunk Drivers** – P may also be CN if they failed to take reasonable steps to assess whether the driver was drunk; and when the passenger is too drunk to tell if the driver is drinking, it will depend on whether the driver intended to drink: **//Bankevich v Perkovich//**.


 * NOTE:** The reasonable person test required for CN is objective. The reasonable sober person’s knowledge is required. A P cannot argue they were too drunk to tell: **//Joselyn v Berryman//**.


 * à Underage Ps**
 * A child will be held to a lower standard in order to determine if they took reasonable care of themselves in the situation. It is determined with reference to a child of the same age: **//McHale v Watson//**.
 * In the case of children who are mentally or physically disabled, the standard should be lowered further: **//Kelly v Bega Valley Council// (Obiter)**

__2. Ps failure to take reasonable care was a cause of (contributed to) her injury__
 * Causation is sufficiently made out if the Ps negligence contributed to either the accident, or the Ps injury.
 * It is enough that the Ps negligence contributed to the harm suffered as a result of the accident: **//Froom v Butcher//**.
 * e.g. if the P failed to wear a seatbelt, it does not cause the crash, but makes the injury worse.

The Ps share of responsibility is determined by reference to:
 * à Effect of Contributory Negligence**
 * The extent to which each party departed from the standard of care require of them: **//Pennington v Norris//**.
 * How significant each party’s negligent act was in causing the Ps injury: **//Wynbergen v Hoyts Corporation//**.


 * __ Voluntary Assumption of Risk __**** - //Volenti non fit injuria// **
 * NOTE:** This is a complete defence. Courts are reluctant to provide no compensation to P.

D must show that P:
 * à Knew the facts constituting the danger**
 * D must be able to show that the P really knew the relevant facts: **//Scanlon v American Cigarette Company//**.
 * It is not enough that the P ought to have known the facts. They must have actual knowledge of the relevant danger.


 * à Fully appreciated the danger inherent in those facts**
 * Actual appreciation or knowledge is required.

__When will the risk have been assumed?__
 * à Freely and willingly consented to that particular risk which caused injury**
 * A risk will have been assumed if it is inherent in the activity undertaken by the P. if the P engages in an activity, they accept the risks inherent in that activity: **//Rootes v Shelton//**.

__When will a risk have been assumed voluntarily?__
 * A risk will be assumed voluntarily when there has been no pressure on the P to assume that risk: **//Insurance Commission v Joyce//**.
 * Generally, an employee will not be considered to assume a risk voluntarily, because of the social and economic pressures provided in a work environment. However, there is an exception where the employee directly disobeys an employer: **//ICI v Shatwell//**.

The Wrongs Act provides a shortcut for the D in the situation where the risk in question was an obvious risk.
 * à Obvious Risk – Requires actual knowledge**
 * **s.54(1)** – if the defence of VAR is raised and the risk of harm is an obvious risk, the P is presumed to have been aware of the risk, unless they can prove, on the balance of probabilities, that they were not aware of the risk.
 * **s.54(2)** – Sub-section (1) does not apply to: (a) a proceeding in relation to a professional or health service; and (b) a proceeding in respect of risks associated with work done by one person or another.
 * **s.53** provides some examples of when a risk will be obvious:
 * When the risk is patent or a matter of public knowledge: **s.53(2).**
 * It does not have to be likely to occur to be obvious: **s.52(3);** nor does it have to be prominent, conspicuous or physically observable: **s.52(4).**
 * It is not an obvious risk if it arises because of a failure on the part of a person to properly operate, maintain, replace, prepare, or care for a thing, unless the failure itself is an obvious risk: **s.52(5).**

__Inherent Risks__
 * s.55** – D is not liable for harm suffered as a result of the materialisation of an inherent risk; an inherent risk = a risk that cannot be avoided by the exercise of reasonable care; s.55 does not exclude liability in connection with a duty to warn of a risk.

__Wrongs Act Provision__ a) whether the P was intoxicated by alcohol or drugs voluntarily consumed and the level of intoxication b) whether the P was engaged in illegal activity
 * __ Illegality __**
 * s.14G(2) –** In determining whether the P has established a breach of duty owed to the D, the court must consider among other things –
 * à Independent Illegal Conduct**
 * Not necessarily a defence. Where P breached a statute or regulation, the question is whether the intention was to prevent someone from suing in negligence if they were hurt: **//Henwood v Municipal Tramways Trust.//**
 * The more serious the offence, the more likely it is that parliament would have intended that someone injured while breaking the particular law would not be able to recover damages.

The court will again have regard to the intention, as far as it can ascertained, of parliament in enacting the particular law. If the court cannot ascertain the intention behind the statute, they will employ the following approach:
 * à Joint Illegal Activity**

__The nature and gravity of the offence in question__
 * If the court has to take illegal nature of the activities into account in order to determine the standard of care, the court will refuse to make an award of damages to the P: **//__Garla v Preston__//**
 * If the negligent act was a result of activities undertaken to further a criminal enterprise, the court will not find that there was a duty of care: **//Italiano v Barbaro.//**

__The closeness of the relationship between the illegal act and the Ds negligence__
 * If the illegality doesn’t need to be considered in order to determine a reasonable standard, there will be no defence: **//Jackson v Harrison//**.

People who act as ‘Good Samaritans’ are protected under the law:
 * __Volunteers and Good Samaritans__**
 * **s.31B –** A good Samaritan will not normally be liable for anything they do in good faith while providing assistance to someone who is injured. This section was enacted to prevent a good Samaritan from being sued.
 * **s.37 –** Volunteers, who are people who undertake community work on a voluntary basis, are protected for anything they do in good faith while undertaking community work. This section is fairly broad, and this protection does not extend to the organization, only the individual volunteer.
 * Volunteer is defined per **s.35**
 * Community work is defined per **s.36**

The general rule: a negligence action must be brought within six years of the cause of action accruing: s.5(1)
 * __Limitations of Actions Act 1958__**

Personal Injury cases: the action must be brought within three years of the cause of action accruing: s.5(1AA)


 * **s.23A** allows the court discretion to extend the three-year period.
 * **s.5(1) & (1A) –** the cause of action accrues when the P first knows that he is suffering from those injuries, and the injuries were caused by the act or omission of some specific person.
 * **s.27D –** imposes a 12 year cap on personal injury claims from the date of the injury. However a P can apply for an extension of this time limit with regard to their circumstances under **ss.27K &** **L**

A Ds right of contribution is not actually a defence against the Ps claim, but rather a claim by a D against another co-D aimed at apportioning part of the blame and responsibility for damages onto other Ds. The right arises under statute law.
 * __Contribution & Indemnity between Tortfeasors__**


 * s.23B(1) Where D is liable in respect of damage suffered by P, D may recover contribution from any other person liable in respect of the same damage.

__Amount Recoverable__ s.24(2) – the amount of contribution D can recover from the other person shall be such as the judge or jury considers just and equitable, given the extent of that person’s responsibility for Ps damage.