PRINCIPAL AND AGENTPRINCIPAL AND AGENT

• An agent is a person authorised by their An agent is a person authorised by their principal to legally bind the principal and principal to legally bind the principal and third parties. third parties.

• The principal’s liability will arise in relation The principal’s liability will arise in relation to acts of the agent done in the course of to acts of the agent done in the course of carrying out the principal’s authority carrying out the principal’s authority ((Soblusky v EganSoblusky v Egan (1960) 103 CLR 215, (1960) 103 CLR 215, Scott Scott v Davisv Davis (2000) 204 CLR 333). (2000) 204 CLR 333).

Torts Week 11 2

Vicarious Liability: Principal and Vicarious Liability: Principal and AgentAgent

Non Delegable DutyNon Delegable Duty

• Lapore:Lapore:• A non-delegable duty is not a duty of A non-delegable duty is not a duty of

care, rather it is a duty to see that care care, rather it is a duty to see that care is taken. The implication is that that is taken. The implication is that that steps may be taken by an employer to steps may be taken by an employer to discharge a non-delegable duty and so discharge a non-delegable duty and so intentional conduct of the employee intentional conduct of the employee cannot be included when the employer cannot be included when the employer is not at fault.is not at fault.

• However, there are no steps that can However, there are no steps that can be taken in vicarious liability to prevent be taken in vicarious liability to prevent liability.liability.

• A non-delegable duty of care is a personal A non-delegable duty of care is a personal duty to take care: to ensure that care is duty to take care: to ensure that care is taken.taken.

• It cannot be delegated to another.It cannot be delegated to another.• The common "element in the relationship The common "element in the relationship

between the parties which generates (the) between the parties which generates (the) special …duty to see that care is taken is special …duty to see that care is taken is that the person on whom (the duty) is that the person on whom (the duty) is imposed has undertaken the care, imposed has undertaken the care, supervision or control of …another … as to supervision or control of …another … as to assume a particular responsibility for his… assume a particular responsibility for his… safety" safety" Kondis v. StateTransport Authority Kondis v. StateTransport Authority (1984) 154 CLR at 687 per Mason J (1984) 154 CLR at 687 per Mason J

Torts Week 11 4

Non-delegable Duty Of CareNon-delegable Duty Of Care

Intentional Conduct versus Intentional Conduct versus Negligence in Non delegable Negligence in Non delegable dutiesdutiesNew South Wales v New South Wales v

Lepore Lepore • Gleeson CJ stated “The proposition that, Gleeson CJ stated “The proposition that,

because a school authority's duty of care to a because a school authority's duty of care to a pupil is nondelegable, the authority is liable pupil is nondelegable, the authority is liable for any injury...is too broad, and the for any injury...is too broad, and the responsibility with which it fixes school responsibility with which it fixes school authorities is too demanding”. authorities is too demanding”.

• Gummow and Hayne JJ“all of the cases in Gummow and Hayne JJ“all of the cases in which non-delegable duties have been which non-delegable duties have been considered in this court have been cases in considered in this court have been cases in which the plaintiff has been injured as a which the plaintiff has been injured as a result of negligence...In the present cases...result of negligence...In the present cases...[n]either plaintiff suffered injury as a result of [n]either plaintiff suffered injury as a result of any negligent conduct of the teacher”any negligent conduct of the teacher”

• Hospital/patient – Hospital/patient – Ellis v Wallsend Ellis v Wallsend District Hospital District Hospital (1989) 17 NSWLR 553; (1989) 17 NSWLR 553; Albrighton v RPAH Albrighton v RPAH [1980] 2 NSWLR 542[1980] 2 NSWLR 542

• School authority/student – School authority/student – Commonwealth v Introvigne Commonwealth v Introvigne (1982) 150 (1982) 150 CLR 258;CLR 258;

• Land occupier/danger to neighbour – Land occupier/danger to neighbour – Burnie v General Jones Pty Ltd Burnie v General Jones Pty Ltd (1994)179 CLR 520(1994)179 CLR 520

• Employer v Employee – Employer v Employee – Kondis v SRA Kondis v SRA (1984) 154 CLR 672.(1984) 154 CLR 672.

Torts Week 11 6

Relationships which give rise Relationships which give rise to non-delegable duty:to non-delegable duty:

CLACLA

• 5Q Liability based on non-delegable 5Q Liability based on non-delegable dutyduty

– (1) (1) The extent of liability in tort of a person ( The extent of liability in tort of a person ( "the defendant") for breach "the defendant") for breach of a non-of a non-delegable duty to ensure that reasonable care is delegable duty to ensure that reasonable care is taken by a taken by a person in the carrying out of any person in the carrying out of any work or task delegated or otherwise work or task delegated or otherwise entrusted to the person by the defendant is to entrusted to the person by the defendant is to be determined as if the be determined as if the liability were the liability were the vicarious liability of the defendant for the vicarious liability of the defendant for the negligence negligence of the person in connection with of the person in connection with the performance of the work or task.the performance of the work or task.

Civil Liability Act 2002 Civil Liability Act 2002 (NSW), s 5Q(NSW), s 5Q•A breach of a non- delegable duty is to A breach of a non- delegable duty is to be determined as if it were vicarious be determined as if it were vicarious liabilityliability..•Galea v Bagtrans Pty Ltd Galea v Bagtrans Pty Ltd [2010] NSWCA 350[2010] NSWCA 350

– S 5Q applied to make employer ‘vicariously liable’ for S 5Q applied to make employer ‘vicariously liable’ for the failure of another person to exercise reasonable the failure of another person to exercise reasonable care where employer owed a non-delegable duty of care where employer owed a non-delegable duty of care. Per Hodgson JA at [65].care. Per Hodgson JA at [65].

Torts Week 11 8

Non-delegable Duty Of CareNon-delegable Duty Of Care

Lapore: The Court’s Lapore: The Court’s ApproachApproach

• While a school owes a non-delegable While a school owes a non-delegable duty to its pupils, that duty cannot be duty to its pupils, that duty cannot be breached by a deliberate and breached by a deliberate and intentional act of sexual assault on a intentional act of sexual assault on a student by a teacher. student by a teacher.

• A non-delegable duty can only be A non-delegable duty can only be breached if someone (either the D or breached if someone (either the D or the person to whom the person to the person to whom the person to whom the D delegated the task in whom the D delegated the task in question) failed to take reasonable question) failed to take reasonable care.care.

Lapore: The CLA Lapore: The CLA implicationsimplications

• S 5Q(2) states that this applies in an action in S 5Q(2) states that this applies in an action in tort whether or not it is an action in negligencetort whether or not it is an action in negligence

• This seems to negate This seems to negate LeporeLepore by providing that by providing that the D can be held liable for breaching the non-the D can be held liable for breaching the non-delgable duty whether or not they could have delgable duty whether or not they could have done anything to avoid the harmdone anything to avoid the harm

• However, most of the Act’s provisions including most of the Act’s provisions including s 5Q are excluded by s 3B(1) with respect to s 5Q are excluded by s 3B(1) with respect to intentional acts that are intended to cause intentional acts that are intended to cause injury or death or amount to a sexual assault or injury or death or amount to a sexual assault or other sexual misconduct.other sexual misconduct.

• So, So, LeporeLepore would still be decided in the same would still be decided in the same way under s 5Q.way under s 5Q.

HOW DO THE COURTS HOW DO THE COURTS DETERMINE WHEN A DUTY IS DETERMINE WHEN A DUTY IS NON-NON- DELEGABLE?DELEGABLE?

Defined Areas of Non Defined Areas of Non Delegable DutiesDelegable Duties

• Hospital and public patientHospital and public patient– This is the duty owed by the hospital to its public This is the duty owed by the hospital to its public

patientspatients

• School authority and pupilSchool authority and pupil– But does not extend to sexual assault of studentsBut does not extend to sexual assault of students

• Employer and EmployeeEmployer and Employee– The employer has a non-delegable duty to esnure The employer has a non-delegable duty to esnure

a safe working environment for the employee.a safe working environment for the employee.

• Danger to neighbouring land usersDanger to neighbouring land users•

What is the nature and What is the nature and scope of the employer’s duty scope of the employer’s duty of care to the employee?of care to the employee?

• An employer owes a non-delegable An employer owes a non-delegable DOC to its employees to take DOC to its employees to take reasonable care to avoid exposing reasonable care to avoid exposing them to unnecessary risks of injury. If them to unnecessary risks of injury. If there is a real risk of injury then the there is a real risk of injury then the employer must devise a method of employer must devise a method of operation to eliminate the risk.operation to eliminate the risk.

Hamilton v Nuroof (WA) Hamilton v Nuroof (WA) Pty LtdPty Ltd

• FactsFacts: Labourer hired to help cover : Labourer hired to help cover the roof of 6the roof of 6thth floor building with floor building with bitumen. The 6bitumen. The 6thth floor was stepped floor was stepped back from the 5back from the 5thth and instead of and instead of pulling buckets of bitumen up with pulling buckets of bitumen up with rope (case says perhaps to prevent rope (case says perhaps to prevent dirtying the walls) they were passed dirtying the walls) they were passed up by hand. The hot bitumen went in up by hand. The hot bitumen went in his face and he flicked away and the his face and he flicked away and the rest came down on him. rest came down on him.

The Calculus: Dixon CJ The Calculus: Dixon CJ and Kitto Jand Kitto J

• It has been said that a reasonable and It has been said that a reasonable and prudent employer is prudent employer is

– bound to take into consideration the degree of bound to take into consideration the degree of injury likely to result; injury likely to result;

– bound to take into consideration the degree of bound to take into consideration the degree of risk of an accident; risk of an accident;

– entitled to take into consideration the degree of risk, if entitled to take into consideration the degree of risk, if any, involved in taking precautionary measures…any, involved in taking precautionary measures…

– On the facts of the present case it may fairly be said On the facts of the present case it may fairly be said that that

– the degree of injury likely to result would be the degree of injury likely to result would be grave; grave;

– the degree of risk of an accident was real and not the degree of risk of an accident was real and not fanciful or inconsiderable; fanciful or inconsiderable;

– there was no degree of risk to any person in taking there was no degree of risk to any person in taking precautionary measures and the degree of risk of precautionary measures and the degree of risk of defacing the wall was not great and could be met defacing the wall was not great and could be met completely by the exercise of ordinary carecompletely by the exercise of ordinary care

Employer –employee Employer –employee relationsrelations

Identifying whether a person is an employee is relevant toIdentifying whether a person is an employee is relevant to•entitlement to workers compensation (Self-Learning Module entitlement to workers compensation (Self-Learning Module 2)2)•employer’s employer’s vicarious vicarious liability for employee’s tort (above)liability for employee’s tort (above)•employer’s employer’s personal personal liability to employee under liability to employee under employer/ee common law duty of care (Week 8)employer/ee common law duty of care (Week 8)

Note: Note: vicarious vicarious liability of employersliability of employers•an employer may be vicariously liable for a tort committed an employer may be vicariously liable for a tort committed by an employee in course of employment, whether plaintiff by an employee in course of employment, whether plaintiff is another employee, a contractor or anyone elseis another employee, a contractor or anyone else

Note: Note: personal personal liability of employersliability of employers•established employer/ee duty (Week 8) is owed to established employer/ee duty (Week 8) is owed to employeesemployees•non-delegable duty (non-delegable duty (KondisKondis, above) also owed to employees, above) also owed to employees•employer may employer may otherwise otherwise owe duty of care to non-owe duty of care to non-employees, eg under occupier/entrant or employees, eg under occupier/entrant or manufacturer/consumer duty of caremanufacturer/consumer duty of care

Torts Week 11 18

Employers Liability and Employers Employers Liability and Employers Duty Duty

Employers Liability and Employers Employers Liability and Employers Duty Duty

McLean v TedmanMcLean v Tedman (1984) (1984) 155 CLR 306155 CLR 306

• In such a situation it is not an acceptable In such a situation it is not an acceptable answer to assert that an employer has answer to assert that an employer has no control over an employee's negligence no control over an employee's negligence or inadvertence. The standard of care or inadvertence. The standard of care expected of the reasonable man requires expected of the reasonable man requires him to take account of the possibility of him to take account of the possibility of inadvertent and negligent conduct on inadvertent and negligent conduct on the part of others. [8] the part of others. [8]   

• The employer's obligation is not merely The employer's obligation is not merely to provide a safe system of work; it is an to provide a safe system of work; it is an obligation to establish, maintain and obligation to establish, maintain and enforce such a system. Accident enforce such a system. Accident prevention is unquestionably one of the prevention is unquestionably one of the modern responsibilities of an employer modern responsibilities of an employer

Koehler v Cerebos Koehler v Cerebos (Australia) Ltd(Australia) Ltd

• P complained repeatedly about her work P complained repeatedly about her work conditions. She suggested either extra time conditions. She suggested either extra time or giving the stores to other employees. or giving the stores to other employees. Employer did not listen. She went to the Employer did not listen. She went to the doctor because she was not able to lift doctor because she was not able to lift products any more and the doctor diagnosed products any more and the doctor diagnosed her with a psychological disorder and was her with a psychological disorder and was referred to a psychiatrist. She sustained a referred to a psychiatrist. She sustained a recognised psychiatric illness as a result of recognised psychiatric illness as a result of her work. her work.

• Held:McHugh, Gummow, Hayne and Heydon Held:McHugh, Gummow, Hayne and Heydon JJ: JJ: In this case, it was not found to be In this case, it was not found to be reasonably foreseeable that the employer reasonably foreseeable that the employer should have foreseen a psychiatric illness.should have foreseen a psychiatric illness.

22

‘‘A Frolic of his/her Own’A Frolic of his/her Own’

• In general the employer is not liable where the In general the employer is not liable where the employee commits a torts while on a ‘frolic of his or her employee commits a torts while on a ‘frolic of his or her own’own’

• Harvey v OHarvey v O’’DellDell– Detour to get more tools & lunch was in scope of Detour to get more tools & lunch was in scope of

employmentemployment– Not a frolic of their own bec. Employees were paid Not a frolic of their own bec. Employees were paid

subsistence money & not required to take lunch with subsistence money & not required to take lunch with themthem

• Petrou v Hatzigeorgiou:Petrou v Hatzigeorgiou: Horseplay / practical jokes Horseplay / practical jokes by by employees may be within the course of employmentemployees may be within the course of employment– out vicarious liab. of partner for tort of another out vicarious liab. of partner for tort of another

partnerpartner– Certain amount of horseplay conducive to Certain amount of horseplay conducive to

maintaining good staff relationsmaintaining good staff relations– Fact that act went outside permitted level of Fact that act went outside permitted level of

horseplay did not take it outside the course of the horseplay did not take it outside the course of the businessbusiness

What is meant by “joint What is meant by “joint and several liability”?and several liability”?

• Where there are a number of Where there are a number of tortfeasors and each of them is tortfeasors and each of them is individually liable to the P for the individually liable to the P for the whole of the damage suffered. whole of the damage suffered.

• The P may sue any one or all of them The P may sue any one or all of them to recover the damages may obtain to recover the damages may obtain judgment against one or all of them. judgment against one or all of them.

• The P chooses who to sue but will The P chooses who to sue but will normally sue the one most able to normally sue the one most able to pay- hence likely to be public pay- hence likely to be public authorities, manufacturers and authorities, manufacturers and insurers.insurers.

Joint TortfeasorsJoint Tortfeasors

• Thompson v Australian Capital Thompson v Australian Capital Television Pty LtdTelevision Pty Ltd (1996) 186 CLR 574 (1996) 186 CLR 574

– Channel 7 and 9 broadcast a defamatory story Channel 7 and 9 broadcast a defamatory story under licence, that the step-father of a girl under licence, that the step-father of a girl abused her and fathered her child when she was abused her and fathered her child when she was 14. This was never proven to be true. He sued 14. This was never proven to be true. He sued the station.the station.

BRENNAN CJ, DAWSON AND BRENNAN CJ, DAWSON AND TOOHEY JJTOOHEY JJ

• We have no doubt that Channel 9 and Channel 7 We have no doubt that Channel 9 and Channel 7 were joint tortfeasors. The difference between were joint tortfeasors. The difference between joint tortfeasors and several tortfeasors is that joint tortfeasors and several tortfeasors is that the former are responsible for the same tort the former are responsible for the same tort whereas the latter are responsible only for the whereas the latter are responsible only for the same damage[2]. As was said in The Koursk[3], same damage[2]. As was said in The Koursk[3], for there to be joint tortfeasors "there must be for there to be joint tortfeasors "there must be a concurrence in the act or acts causing a concurrence in the act or acts causing damage, not merely a coincidence of separate damage, not merely a coincidence of separate acts which by their conjoined effect cause acts which by their conjoined effect cause damage". Principal and agent may be joint damage". Principal and agent may be joint tortfeasors where the agent commits a tort on tortfeasors where the agent commits a tort on behalf of the principal, as master and servant behalf of the principal, as master and servant may be where the servant commits a tort in the may be where the servant commits a tort in the course of employment. Persons who breach a course of employment. Persons who breach a joint duty may also be joint tortfeasors. joint duty may also be joint tortfeasors. Otherwise, to constitute joint tortfeasors two or Otherwise, to constitute joint tortfeasors two or more persons must act in concert in committing more persons must act in concert in committing the tort. the tort.

The Effect of ReleaseThe Effect of Release

• At common law, where there was a joint tort At common law, where there was a joint tort there could be only one action and one there could be only one action and one judgment for the whole amount of damages to judgment for the whole amount of damages to which the plaintiff was entitled. That is to say, which the plaintiff was entitled. That is to say, the cause of action was one and indivisible so the cause of action was one and indivisible so that when judgment was obtained on it, that when judgment was obtained on it, whether against one or more of the joint whether against one or more of the joint tortfeasors, the cause of action merged in the tortfeasors, the cause of action merged in the judgment and precluded further recovery judgment and precluded further recovery against any remaining tortfeasorsagainst any remaining tortfeasors

• A judgment obtained against one joint A judgment obtained against one joint tortfeasor was a bar to an action against the tortfeasor was a bar to an action against the others upon the same cause of action, even if others upon the same cause of action, even if the judgment remained unsatisfied. It was the judgment remained unsatisfied. It was also the basis of the rule that the release of also the basis of the rule that the release of one joint tortfeasor released all the othersone joint tortfeasor released all the others

Concurrent tortfeasorsConcurrent tortfeasors

• Chapman v HearseChapman v Hearse (1961) 106 CLR (1961) 106 CLR 112112

the concept of “contribution the concept of “contribution between tortfeasors and between tortfeasors and relative contributionsrelative contributions

Section 5 of the Law Reform Section 5 of the Law Reform (Miscellaneous Provisions) act 1946 (Miscellaneous Provisions) act 1946

(NSW)(NSW)

• Where damage is suffered by any Where damage is suffered by any person as a result of a tort (whether a person as a result of a tort (whether a

crime or not):crime or not):– (a) (a) judgment recovered against any tort-judgment recovered against any tort-

feasor liable in respect of feasor liable in respect of that damage shall that damage shall not be a bar to an action against any other not be a bar to an action against any other

person who would, if sued, have been person who would, if sued, have been liable as a joint tort-feasor liable as a joint tort-feasor in respect of the in respect of the same damagesame damage

– (c) any tort-feasor liable in respect of that (c) any tort-feasor liable in respect of that damage may recover damage may recover contribution from contribution from any other tort-feasor who is, or would if sued any other tort-feasor who is, or would if sued have have been, liable in respect of the same been, liable in respect of the same damage, whether as a joint tort-damage, whether as a joint tort- feasor or feasor or otherwise,otherwise,

THE LAW OF TORTSTHE LAW OF TORTS

TORTS LECTURE TORTS LECTURE

DEFENCES IN NEGLIGENCEDEFENCES IN NEGLIGENCE

The Concept of The Concept of DefenceDefence

• Broader Concept: The content of the Broader Concept: The content of the Statement of Defence- The response to the Statement of Defence- The response to the PP’’s Statement of Claim-The basis for non-s Statement of Claim-The basis for non-liabilityliability

• Statement of Defence may contain:Statement of Defence may contain:– DenialDenial

–Objection to a point of lawObjection to a point of law–Confession and avoidance:Confession and avoidance:

Defences: Factors that may Defences: Factors that may undermine a plaintiffs claimsundermine a plaintiffs claims

INTRODUCTION: FACTORS THAT INTRODUCTION: FACTORS THAT MAY UNDERMINE PMAY UNDERMINE P’’S CLAIMS CLAIM

• The plaintiff's:The plaintiff's:– A diminished standard of care: pre-existing knowledge about A diminished standard of care: pre-existing knowledge about

the defendant’s incapacitythe defendant’s incapacity

– contributory negligence: failure to take reasonable care of his contributory negligence: failure to take reasonable care of his or her own safety or her own safety

– Voluntary assumption of risk: pre-existing or constructive Voluntary assumption of risk: pre-existing or constructive knowledge of the risk associated with the state of affairs that knowledge of the risk associated with the state of affairs that gave rise to the negligencegave rise to the negligence

– unlawful conductunlawful conduct

DEFENCESDEFENCES

Contributory Negligence

Voluntary Assumption of Risk

particular defendants with limited liability

Inherent risks

Dangerous recreational activities

Obvious risks

Diminished standard of careUnlawful conduct/illegality

DIMINISHED STANDARD OF DIMINISHED STANDARD OF CARECARE

• Insurance Commissioner v Joyce:Insurance Commissioner v Joyce: – ‘‘the case may be described as involving a dispensation the case may be described as involving a dispensation

from all standards of care’, so that, … there was no from all standards of care’, so that, … there was no breach of duty by the defendant...’breach of duty by the defendant...’

• ‘‘Diminished standard of careDiminished standard of care’’ is technically is technically not a defence as suchnot a defence as such

Contributory negligenceContributory negligence

Class ExerciseClass Exercise• What does a defendant have to What does a defendant have to

prove to establish a defence of prove to establish a defence of Contributory Negligence at common Contributory Negligence at common law?law?

• Evaluate the scope of CN under Evaluate the scope of CN under the CLAthe CLA

THE NATURE OF THE NATURE OF CONTRIBUTORY CONTRIBUTORY

NEGLIGENCE: NEGLIGENCE: Joslyn v Berryman

• (Per (McHugh J): At common law, a plaintiff is guilty (Per (McHugh J): At common law, a plaintiff is guilty of contributory negligence when the plaintiff of contributory negligence when the plaintiff exposes himself or herself to a risk of injury which exposes himself or herself to a risk of injury which might reasonably have been foreseen and avoided might reasonably have been foreseen and avoided and suffers an injury within the class of risk to and suffers an injury within the class of risk to which the plaintiff was exposed. In principle, any which the plaintiff was exposed. In principle, any fact or circumstance is relevant in determining fact or circumstance is relevant in determining contributory negligence if it proves, or assists in contributory negligence if it proves, or assists in proving, a reasonably foreseeable risk of injury to proving, a reasonably foreseeable risk of injury to the plaintiff in engaging in the conduct that gave rise the plaintiff in engaging in the conduct that gave rise to the injury suffered to the injury suffered

• The test of contributory negligence is an objective The test of contributory negligence is an objective oneone

Contributory Negligence: The Contributory Negligence: The nature of the Pnature of the P’’s conducts conduct

• The defence is established if the defendant proves the The defence is established if the defendant proves the plaintiff guilty of conduct which amounts to a failure to take plaintiff guilty of conduct which amounts to a failure to take care for his/her own safety care for his/her own safety

• To plead the defence, D bears the onus of proof and must To plead the defence, D bears the onus of proof and must prove the requisite standard of care that has been breached prove the requisite standard of care that has been breached by P.by P.

The Substance of Apportionment Legislation The Substance of Apportionment Legislation ((Law Reform (Miscellaneous) Act 1965 Law Reform (Miscellaneous) Act 1965

(NSW) (NSW) s9s9

• If a person (the "claimant") suffers If a person (the "claimant") suffers damagedamage as the result as the result partly of the partly of the claimantclaimant’s failure to take reasonable care ’s failure to take reasonable care ( "contributory negligence") and partly of the ( "contributory negligence") and partly of the wrongwrong of any of any other person:other person:

• a.a. claim in respect of the claim in respect of the damagedamage is not defeated by is not defeated by reason of the reason of the contributory negligencecontributory negligence of the of the claimantclaimant, and, and

• b.b. the the damagesdamages recoverable in respect of the recoverable in respect of the wrongwrong are are to be reduced to such extent as the to be reduced to such extent as the courtcourt thinks just and thinks just and equitable having regard to the equitable having regard to the claimantclaimant’s share in the ’s share in the responsibility for the responsibility for the damagedamage..

CIVIL LIABILITY ACT Division CIVIL LIABILITY ACT Division 88

s5R:s5R:– The principles that are applicable in determining whether a person has been negligent also 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 contributorily apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.negligent in failing to take precautions against the risk of that harm.

– (a) the standard of care required of the person who (a) the standard of care required of the person who suffered harm is that of a reasonable person in the suffered harm is that of a reasonable person in the position of that person, andposition of that person, and

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

CIVIL LIABILITY ACT CIVIL LIABILITY ACT Division 8Division 8

• S5S:S5S:–In determining the extent of a In determining the extent of a

reduction in damages by reason of reduction in damages by reason of contributory negligence, a court may contributory negligence, a court may determine a reduction of 100% if the determine a reduction of 100% if the court thinks it just and equitable to do court thinks it just and equitable to do so, with the result that the claim for so, with the result that the claim for damages is defeateddamages is defeated..

How do the Courts approach the How do the Courts approach the issue of contributory negligence?issue of contributory negligence?

• Courts compare Courts compare the degree of departurethe degree of departure from from the standard of the reasonable person of both the standard of the reasonable person of both the P and the D:the P and the D:

Pennington v NorrisPennington v Norris

• FactsFacts: 2 men crossed the street to get to their car on a rainy night : 2 men crossed the street to get to their car on a rainy night and were hit by a car and carried 30 feet and more down the street. and were hit by a car and carried 30 feet and more down the street. Wilson suffered severe injuries and it was found that the Wilson suffered severe injuries and it was found that the pedestrians and driver were to blame. The Tasmanian court pedestrians and driver were to blame. The Tasmanian court apportioned each of the parties 50% and this went to the High Court apportioned each of the parties 50% and this went to the High Court who then apportioned driver 80% and pedestrian 20%who then apportioned driver 80% and pedestrian 20%

The factors the court took into The factors the court took into account:account:

• Speed… Speed…

• Lots of people … Lots of people …

• 3 hotels just closed. 3 hotels just closed.

• Misty nightMisty night

• Wet road.Wet road.

• Impaired Visibility Impaired Visibility

• mistiness on the inside and outside of the mistiness on the inside and outside of the windscreen.windscreen.

• Driving 30 miles an hour under these Driving 30 miles an hour under these circumstances… was obviously dangerouscircumstances… was obviously dangerous

Pennington v Norris Pennington v Norris cont’ed cont’ed

• Dixon CJ, Webb, Fullager & Kitto JJDixon CJ, Webb, Fullager & Kitto JJ : :

– The only guide which the statute provides is that it The only guide which the statute provides is that it requires regard to be had to "the claimant's share in requires regard to be had to "the claimant's share in the responsibility for the damage"… What has to be the responsibility for the damage"… What has to be done is to arrive at done is to arrive at a "just and equitable" a "just and equitable" apportionmentapportionment as between the plaintiff and the as between the plaintiff and the defendant of the "responsibility" for the damage. It defendant of the "responsibility" for the damage. It seems clear that this must of necessity involve seems clear that this must of necessity involve a a comparison of culpabilitycomparison of culpability. By "culpability" we . By "culpability" we do not do not mean moral blameworthiness but degree of mean moral blameworthiness but degree of departure from the standard of care of the departure from the standard of care of the reasonable man.reasonable man.

Pennington v Norris Pennington v Norris cont’ed cont’ed

• Here, in our opinion, the negligence of the defendant Here, in our opinion, the negligence of the defendant was in a high degree more culpable, more gross, than was in a high degree more culpable, more gross, than that of the plaintiff. The plaintiff's conduct was ex that of the plaintiff. The plaintiff's conduct was ex hypothesi careless and unreasonable but, after all, it hypothesi careless and unreasonable but, after all, it was the sort of thing that is very commonly done: he was the sort of thing that is very commonly done: he simply did not look when a reasonably careful man simply did not look when a reasonably careful man would have looked.would have looked.

Froom v ButcherFroom v Butcher

What will a Defendant need to What will a Defendant need to prove to establish the Defence?prove to establish the Defence?

• Froom v ButcherFroom v Butcher [1975] 3 All ER 520 [1975] 3 All ER 520– FactsFacts: : P was injured in a car when they were not wearing P was injured in a car when they were not wearing

a seat belt and crashed into another car. The other driver a seat belt and crashed into another car. The other driver was at fault. The question that arises is whether Mr. was at fault. The question that arises is whether Mr. Froom's damages are to be reduced because he was not Froom's damages are to be reduced because he was not wearing a seat belt.wearing a seat belt.

Per Per Denning MR at 523

• Negligence depends on a breach of duty, whereas Negligence depends on a breach of duty, whereas contributory negligence does not. Negligence is a man's contributory negligence does not. Negligence is a man's carelessness in breach of duty to carelessness in breach of duty to othersothers. Contributory . Contributory negligence is a man's carelessness in looking after his negligence is a man's carelessness in looking after his own safety. He is guilty of contributory negligence if he own safety. He is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act ought reasonably to have foreseen that, if he did not act as a reasonable prudent man he might be hurt himselfas a reasonable prudent man he might be hurt himself

McLean v Tedman (1984) 155 CLR 306

Mere inattention and inadvertence v contributory

negligence:

• McLean v TedmanMcLean v Tedman (1984) 155 CLR 306 (1984) 155 CLR 306

– FactsFacts: garbage man running across the street to put : garbage man running across the street to put garbage in the truck (garbage truck did not drive on garbage in the truck (garbage truck did not drive on either side, just drove one side and men ran to and either side, just drove one side and men ran to and form the truck). P alleged that the employer had been form the truck). P alleged that the employer had been negligent in not providing a safer system of work. negligent in not providing a safer system of work. Employer argued that the men would not have Employer argued that the men would not have adopted it anyway.adopted it anyway.

– HeldHeld: Mason, Wilson, Brennan and Dawson JJ. The : Mason, Wilson, Brennan and Dawson JJ. The garbage man P was not guilty of contributory garbage man P was not guilty of contributory negligence, the employer had been negligent in failing negligence, the employer had been negligent in failing to provide a safe system of work because: to provide a safe system of work because:

McLean v Tedman (1984) 155 CLR 306

• Mason, Wilson, Brennan and Dawson JJ. Mason, Wilson, Brennan and Dawson JJ.

– ““The standard of care expected of the reasonable man requires The standard of care expected of the reasonable man requires him to take account of the possibility of inadvertent and him to take account of the possibility of inadvertent and negligent conduct on the part of others.” At [8]negligent conduct on the part of others.” At [8]

– The question is whether that failure [of the P to observe the The question is whether that failure [of the P to observe the oncoming vehicle] should be characterized as mere inattention oncoming vehicle] should be characterized as mere inattention or inadvertence or whether it amounts to negligence, there or inadvertence or whether it amounts to negligence, there being a well recognized distinction between the two. It is being a well recognized distinction between the two. It is accepted that in considering whether there was contributory accepted that in considering whether there was contributory negligence by an employee in a case in which the employer has negligence by an employee in a case in which the employer has failed to provide a safe system of work, the circumstances and failed to provide a safe system of work, the circumstances and conditions in which he had to do his work must be taken into conditions in which he had to do his work must be taken into account. And the issue of contributory negligence is essentially account. And the issue of contributory negligence is essentially a question of fact. [19]a question of fact. [19]

Zanner v Zanner [2010] NSWCA 343

• Facts:Facts: The respondent, the mother of the first appellant, The respondent, the mother of the first appellant, sustained serious injuries when she was struck by a sustained serious injuries when she was struck by a motor vehicle owned by the second appellant and being motor vehicle owned by the second appellant and being manoeuvred by the first appellant at the direction of the manoeuvred by the first appellant at the direction of the respondent into the carport of the family home at Seven respondent into the carport of the family home at Seven Hills. At the time of the accident, the appellant was 11 Hills. At the time of the accident, the appellant was 11 years and 2 months old.years and 2 months old.

• Held: Held: Tobias JA (Allsop P and Young JA agreeing)Tobias JA (Allsop P and Young JA agreeing)

• Section 5S applies in “very rare” cases where it can Section 5S applies in “very rare” cases where it can legitimately be said that it is just and equitable to reduce legitimately be said that it is just and equitable to reduce the respondent’s damages by 100%. the respondent’s damages by 100%.

The Calculus of Negligence Applies to The Calculus of Negligence Applies to Determine Contributory Negligence:Determine Contributory Negligence:

• Chapman v HearseChapman v Hearse Where Pl is in imminent danger - The ‘agony of the moment' Where Pl is in imminent danger - The ‘agony of the moment'

rule: unlikely to be contributory negligence, where defendant rule: unlikely to be contributory negligence, where defendant has put the plaintiff in imminent personal danger: has put the plaintiff in imminent personal danger: The The Bywell Castle (1879) 4 PD 219; Cortis v Baker [1968] SASR Bywell Castle (1879) 4 PD 219; Cortis v Baker [1968] SASR 367367

Caterson v Commissioner for Railways Caterson v Commissioner for Railways (1973) 128 CLR 99(1973) 128 CLR 99

Caterson v Commissioner for Railways Caterson v Commissioner for Railways (1973) 128 CLR 99(1973) 128 CLR 99

Where a plaintiff has by reason of the Where a plaintiff has by reason of the negligence of the defendant been so negligence of the defendant been so placed that he can only escape from placed that he can only escape from inconvenience by taking a risk, the inconvenience by taking a risk, the question whether his action in taking question whether his action in taking the risk is unreasonable is to be the risk is unreasonable is to be answered by weighing the degree of answered by weighing the degree of inconvenience to which he will be inconvenience to which he will be subjected against the risk that he subjected against the risk that he takes in order to try to escape from takes in order to try to escape from it… a person who wished to avoid it… a person who wished to avoid being carried on to a distant station being carried on to a distant station might not unreasonably jump out might not unreasonably jump out from a train which was travelling very from a train which was travelling very slowly. slowly.

CausationCausation

•The defendant must prove a causal link The defendant must prove a causal link between the plaintiff’s negligence and the between the plaintiff’s negligence and the damage the plaintiff suffereddamage the plaintiff suffered

•At common law the same principles applied to At common law the same principles applied to P as for causation in respect of the D’s P as for causation in respect of the D’s negligence: negligence:

– March v Stramare March v Stramare (1991)171 CLR 506.(1991)171 CLR 506.– RTA of NSW v TurnerRTA of NSW v Turner [2008] NSWCA 48 [2008] NSWCA 48

RTA v TurnerRTA v Turner

TRTA v Turner: The FactsTRTA v Turner: The Facts

• Driver of car not owner. He drove car at 85 kph, even though Driver of car not owner. He drove car at 85 kph, even though sign said 65 kph at some point but here should have been more sign said 65 kph at some point but here should have been more signs.signs.

• Wet condition and collided with oncoming vehicle.Wet condition and collided with oncoming vehicle.

• Driver seriosuly injured and owner of car killed in accidentDriver seriosuly injured and owner of car killed in accident

• Driver sued owner through 3Driver sued owner through 3rdrd party insurance AAMI party insurance AAMI– On the basis that rear tyres were smooth and should have been On the basis that rear tyres were smooth and should have been

better.better.

• Driver also sued RTA for not reducing speek limit sign and Driver also sued RTA for not reducing speek limit sign and erecting slippery when wet sign and in failing to maintain erecting slippery when wet sign and in failing to maintain adequate skid resistance on the road surface at the curve. adequate skid resistance on the road surface at the curve.

• The trial judge found that but for the negligence of the RTA the The trial judge found that but for the negligence of the RTA the accident would not have happened and held that the negligence accident would not have happened and held that the negligence of the owner was not a cause of the accident and the first of the owner was not a cause of the accident and the first respondent had not been guilty of contributory negligence. The respondent had not been guilty of contributory negligence. The RTA appealed.RTA appealed.

Voluntary assumption of riskVoluntary assumption of risk

Class ExerciseClass Exercise• In pleading voluntary assumption of risk does the In pleading voluntary assumption of risk does the

defendant need to prove subjective knowledge or defendant need to prove subjective knowledge or is proof of objective/constructive knowledge is proof of objective/constructive knowledge sufficient in the light of the Civil Liability Act 2002 sufficient in the light of the Civil Liability Act 2002 (NSW)?(NSW)?

Birch v Thomas [1972] 1 WLR 294

Voluntary Assumption of RiskVoluntary Assumption of Risk

• In general where P voluntarily assumes the risk of a In general where P voluntarily assumes the risk of a particular situation, she/he may not be able to maintain an particular situation, she/he may not be able to maintain an action against D for negligence in relation to that situationaction against D for negligence in relation to that situation

• The elementsThe elements– P must have perceived the dangerP must have perceived the danger

– P must have fully appreciated the danger/knownP must have fully appreciated the danger/known

– P must have voluntarily accepted the riskP must have voluntarily accepted the risk

• What constitutes acceptance of the risk?What constitutes acceptance of the risk?

Torts Week 7 Defences 66

• The risk which the P took must be precisely The risk which the P took must be precisely identified. Is that the risk which materialised and identified. Is that the risk which materialised and which injured the plaintiff?which injured the plaintiff?

– Rootes v Shelton Rootes v Shelton (1967) 116 CLR 383(1967) 116 CLR 383

– Kent v ScattiniKent v Scattini [1961] WAR 74 [1961] WAR 74

– Monie v The CommonwealthMonie v The Commonwealth [2007] NSWCA 230 [2007] NSWCA 230

»Mere knowledge of the risk is not the same Mere knowledge of the risk is not the same as consenting to itas consenting to it

»The ‘whole risk’ must be incurred by P.The ‘whole risk’ must be incurred by P.

VOULNTARY ASSUMPTION OF RISK IN COMMON LAW: VOLUNTI NON FIT

INJURIA

Scanlon v American Cigarette Company overseas Pty Ltd (No 3)

[1987] VR 289

Voluntary Assumption of Voluntary Assumption of RiskRisk

• Scanlon v American Cigarette Company Scanlon v American Cigarette Company Overseas Pty Ltd (No 3) [1987] VR 289Overseas Pty Ltd (No 3) [1987] VR 289– If it is to be the case that the smoking of the said If it is to be the case that the smoking of the said

cigarettes involved risk of injury as alleged… the cigarettes involved risk of injury as alleged… the P knew or P knew or ought to have knownought to have known that the smoking that the smoking of the said cigarettes involved such risk and the of the said cigarettes involved such risk and the P accepted, consented to and voluntarily P accepted, consented to and voluntarily assumed the same ( extract from D’s statement assumed the same ( extract from D’s statement of defence)of defence)

– Issue: whether VAR is based on subjective Issue: whether VAR is based on subjective knowledge or an objective/constructive knowledge or an objective/constructive knowledge is sufficient knowledge is sufficient

Torts Week 7 Defences 69

The defence of Volenti is NOT available in The defence of Volenti is NOT available in NSW in some cases:NSW in some cases:

1.1. In Motor Accident cases: In Motor Accident cases: Motor Motor Accidents Compensation ActAccidents Compensation Act 1999 1999 (NSW) s 140.(NSW) s 140.

2.2. In Workplace Accident cases: In Workplace Accident cases: Workers Workers Compensation ActCompensation Act 1987 (NSW), s 151O. 1987 (NSW), s 151O.

VAR Not available in VAR Not available in some casessome cases

‘‘RISKS’ UNDER THE CIVIL RISKS’ UNDER THE CIVIL LIABILITY ACT LIABILITY ACT

RISKS

OBVIOUS INHERENT

VAR IN THE CIVIL LIABILITY ACT VAR IN THE CIVIL LIABILITY ACT (Division 4, S5F)(Division 4, S5F)

• (1)an (1)an obvious riskobvious risk to a person who suffers harm is a risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a that, in the circumstances, would have been obvious to a reasonable person in the position of that person.reasonable person in the position of that person.

• ((2) Obvious risks include risks that are patent or a 2) Obvious risks include risks that are patent or a matter of matter of common knowledge.common knowledge.

• (3) A risk of something occurring can be an obvious risk (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.even though it has a low probability of occurring.

• (4) A risk can be an obvious risk even if the risk (or a (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observableprominent, conspicuous or physically observable ..

• S 5I(2) An S 5I(2) An inherent riskinherent risk is a risk of something occurring is a risk of something occurring that cannot be avoided by the exercise of reasonable care that cannot be avoided by the exercise of reasonable care and skilland skill..

Qualifications S5G(1)Qualifications S5G(1)

• Under s5G(1) ’[i]n determining liability for Under s5G(1) ’[i]n determining liability for negligence, a person who suffers harm is negligence, a person who suffers harm is presumed to have been aware of the risk of presumed to have been aware of the risk of harm if it was an obvious risk, harm if it was an obvious risk, unless the unless the person proves on the balance of probabilities person proves on the balance of probabilities that he or she was not aware of the risk’that he or she was not aware of the risk’

CLA:Section 5H(1)CLA:Section 5H(1)

• under s5H(1) the defendant ‘does not owe a duty under s5H(1) the defendant ‘does not owe a duty of care to another person ( "the plaintiff" ) to warn of care to another person ( "the plaintiff" ) to warn of an obvious risk to the plaintiffof an obvious risk to the plaintiff The defendant The defendant retains the duty to warn of obvious risks in the retains the duty to warn of obvious risks in the following cases:following cases:– a) the plaintiff has requested advice or information a) the plaintiff has requested advice or information

about the risk from the defendant, or about the risk from the defendant, or

– (b) the defendant is required by a written law to warn (b) the defendant is required by a written law to warn the plaintiff of the risk, or the plaintiff of the risk, or

– (c) the defendant is a professional and the risk is a risk (c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from of the death of or personal injury to the plaintiff from the provision of a professional service by the the provision of a professional service by the defendantdefendant

risks associated with Recreational risks associated with Recreational activitiesactivities

Recreational Activities: Obvious Recreational Activities: Obvious RisksRisks

• As a matter of law, there is a point at which As a matter of law, there is a point at which those who indulge in pleasurable but risky those who indulge in pleasurable but risky pastimes must take personal responsibility pastimes must take personal responsibility for what they do. That point is reached when for what they do. That point is reached when the risks are so the risks are so well known and obviouswell known and obvious that it can reasonably be assumed that the that it can reasonably be assumed that the individuals concerned will take reasonable individuals concerned will take reasonable care for their safety (care for their safety (Prast v The Town of Prast v The Town of CottesloeCottesloe Ipp J Ipp J ) )

CLA:CLA:

• S5L provides that the defendant ‘is not liable in S5L provides that the defendant ‘is not liable in negligence for harm suffered by another person negligence for harm suffered by another person ("the plaintiff") as a result of the materialisation ("the plaintiff") as a result of the materialisation of an obvious risk of a dangerous recreational of an obvious risk of a dangerous recreational activity engaged in by the plaintiff’activity engaged in by the plaintiff’

• s5L(2) specifically stipulates that the s5L(1) s5L(2) specifically stipulates that the s5L(1) exclusion of liability for harm suffered as a result exclusion of liability for harm suffered as a result of obvious risk associated with recreational of obvious risk associated with recreational activities ‘applies whether or not the plaintiff was activities ‘applies whether or not the plaintiff was aware of the risk’.aware of the risk’.

INHERENT RISKINHERENT RISK

• S5I(1) A person is not liable in negligence for harm S5I(1) A person is not liable in negligence for harm suffered by another person as a result of the suffered by another person as a result of the materialisation of an inherent risk.materialisation of an inherent risk.

PRESUMPTIONS OF AWARENESS OF PRESUMPTIONS OF AWARENESS OF OBVIOUS RISK (s5G)OBVIOUS RISK (s5G)

• (1) In determining liability for negligence, a person who (1) In determining liability for negligence, a person who suffers harm is presumed to have been aware of the risk suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was proves on the balance of probabilities that he or she was not aware of the risk.not aware of the risk.

• (2) For the purposes of this section, a person is aware of (2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk.extent or manner of occurrence of the risk.

NO PROACTIVE DUTY TO NO PROACTIVE DUTY TO WARN OF RISKSWARN OF RISKS

• Under the legislation D has no duty to warn P of an obvious risks Under the legislation D has no duty to warn P of an obvious risks except where:except where:

– (a) the plaintiff has requested advice or information about the risk from the defendant, (a) the plaintiff has requested advice or information about the risk from the defendant, oror

– (b) the defendant is required by a written law to warn the plaintiff of the risk, or(b) the defendant is required by a written law to warn the plaintiff of the risk, or

– (c) the defendant is a professional and the risk is a risk of the death of or personal (c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant.injury to the plaintiff from the provision of a professional service by the defendant.

RISKS IN RECREATIONAL RISKS IN RECREATIONAL ACTIVITIES (CLA DIVISION ACTIVITIES (CLA DIVISION

5)5)• S5K: "dangerous recreational activity" means a S5K: "dangerous recreational activity" means a

recreational activity recreational activity that involves a significant risk of that involves a significant risk of physical harmphysical harm

• "recreational activity" includes:"recreational activity" includes:– (a) any sport (whether or not the sport is an organised (a) any sport (whether or not the sport is an organised

activity), andactivity), and

– (b) any pursuit or activity engaged in for enjoyment, relaxation (b) any pursuit or activity engaged in for enjoyment, relaxation or leisure, andor leisure, and

– (c) any pursuit or activity engaged in at a place (such as a (c) any pursuit or activity engaged in at a place (such as a beach, park or other public open space) where people beach, park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure. enjoyment, relaxation or leisure.

• S5L: No liability for harm suffered from obvious risks S5L: No liability for harm suffered from obvious risks of dangerous recreational activities of dangerous recreational activities

Obvious RiskObvious Risk

• The question of obvious risk involves The question of obvious risk involves the determination of whether the the determination of whether the plaintiff's conduct involved a risk of plaintiff's conduct involved a risk of harm which would have been obvious to harm which would have been obvious to a reasonable person in his position. The a reasonable person in his position. The test is an objective one and thus must test is an objective one and thus must take account of the objective take account of the objective circumstances of the person whose circumstances of the person whose conduct is being assessedconduct is being assessed..

(Tobias J, (Tobias J, Jaber v Rockdale City Council Jaber v Rockdale City Council [2008] [2008] NSWCA 98;)NSWCA 98;)

• "' "' obvious obvious ' means that both the condition and ' means that both the condition and the risk are apparent to and would be the risk are apparent to and would be recognised by a reasonable man, in the recognised by a reasonable man, in the position of the [plaintiff] exercising ordinary position of the [plaintiff] exercising ordinary perception, intelligence and judgment." perception, intelligence and judgment." (Mason P in (Mason P in Wyong Shire Council v Vairy Wyong Shire Council v Vairy [2004] NSWCA 247 at [161])[2004] NSWCA 247 at [161])

Tobias J in Tobias J in Wyong Shire Wyong Shire Council v Vairy Council v Vairy

• "[162] In this definition 'condition' refers to the factual "[162] In this definition 'condition' refers to the factual scenario facing the plaintiff. Thus in a diving case the scenario facing the plaintiff. Thus in a diving case the condition might typically be the fact that the plaintiff is condition might typically be the fact that the plaintiff is faced with water of unknown depth. Under such a faced with water of unknown depth. Under such a condition the risk would be that diving into the water condition the risk would be that diving into the water (while the depth remains unknown) might result in (while the depth remains unknown) might result in (serious) injury. This risk would be considered obvious (serious) injury. This risk would be considered obvious if, in the context of the case, it was perceptible to a if, in the context of the case, it was perceptible to a reasonable person in the position of the plaintiff that if reasonable person in the position of the plaintiff that if you do not know the depth of a body of water into you do not know the depth of a body of water into which you are about to dive, then to dive into such which you are about to dive, then to dive into such water under such conditions inevitably brings with it water under such conditions inevitably brings with it the risk of injury."the risk of injury."

Tobias J in Tobias J in Fallas v Mourlas Fallas v Mourlas [2006] NSWCA 32;[2006] NSWCA 32;

• For the purposes of the definition of For the purposes of the definition of "dangerous recreational activity" in s "dangerous recreational activity" in s 5K, the scope of the relevant activity 5K, the scope of the relevant activity must be determined by reference to the must be determined by reference to the particular activities engaged in by the particular activities engaged in by the respondent at the relevant time being respondent at the relevant time being the period immediately prior to the the period immediately prior to the respondent suffering the relevant harm respondent suffering the relevant harm as a consequence of the appellant's as a consequence of the appellant's negligence. (negligence. (

• as a general guide, the risk could not be " as a general guide, the risk could not be " significant significant " unless there was a real chance of " unless there was a real chance of it materialising.it materialising.

Risks in Recreational ActivitiesRisks in Recreational Activities

• Fallas v MourlasFallas v Mourlas [2006] NSWCA 32 [2006] NSWCA 32– whether hunting kangaroos by spotlight was a "dangerous recreational activity" whether hunting kangaroos by spotlight was a "dangerous recreational activity"

within s 5K of the NSW CLA, within s 5K of the NSW CLA,

• Falvo v Australian Oztag Sports Association & Anor Falvo v Australian Oztag Sports Association & Anor [2006] Aust Tort [2006] Aust Tort Reports 81-831 (2 March 2006)Reports 81-831 (2 March 2006)

– Mr Falvo seriously injured his right knee while playing a game of Oztag, a form of Mr Falvo seriously injured his right knee while playing a game of Oztag, a form of touch rugby. The game was played on a reserve occupied and controlled by the touch rugby. The game was played on a reserve occupied and controlled by the local council. The reserve was grassed but in some areas the grass had local council. The reserve was grassed but in some areas the grass had disappeared through wear and tear and the Council had levelled these areas with disappeared through wear and tear and the Council had levelled these areas with sand. Mr Falvo ran towards the opposing team's try line he encountered a bare sand. Mr Falvo ran towards the opposing team's try line he encountered a bare patch, his knee gave way when his foot went into the sand and he collapsed in patch, his knee gave way when his foot went into the sand and he collapsed in pain on the ground.pain on the ground.

• Bujnowicz v Trustees of the Roman Catholic Church of the Archdiocese Bujnowicz v Trustees of the Roman Catholic Church of the Archdiocese of Sydneyof Sydney4040 (2005), (2005),

» plaintiff, in the course of a school touch rugby game, ran into a pothole on the plaintiff, in the course of a school touch rugby game, ran into a pothole on the school's rugby field sustaining severe injuries to his leg.school's rugby field sustaining severe injuries to his leg.

» Held: Held: The hole there was not obvious and could not be categorized as a The hole there was not obvious and could not be categorized as a depression in the ground or a mere alteration in levels but was a trapdepression in the ground or a mere alteration in levels but was a trap

Negligence and the ordinary Negligence and the ordinary human experiencehuman experience

• "If negligence law is to serve any useful "If negligence law is to serve any useful social purpose, it must ordinarily reflect the social purpose, it must ordinarily reflect the foresight, reactions and conduct of ordinary foresight, reactions and conduct of ordinary members of the community ... To hold members of the community ... To hold defendants to standards of conduct that do defendants to standards of conduct that do not reflect the common experience of the not reflect the common experience of the relevant community can only bring the law of relevant community can only bring the law of negligence, and with it the administration of negligence, and with it the administration of justice, into disrepute. ..." justice, into disrepute. ..."

ILLEGALITYILLEGALITY

• The traditional Common Law position on The traditional Common Law position on illegality is usually summed up in the Latin illegality is usually summed up in the Latin maxim maxim ex turpi causa non oritur actionex turpi causa non oritur action which which means that means that ““no cause of action may be no cause of action may be founded on an illegal actfounded on an illegal act””

What is Illegality?What is Illegality?

• There are three possible interpretations of There are three possible interpretations of ‘‘illegal actillegal act’’ in this context: (a) action in in this context: (a) action in breach of the criminal law; (b) criminal action breach of the criminal law; (b) criminal action and also conduct in breach of the civil law; (3) and also conduct in breach of the civil law; (3) a criminal wrong, or civil wrong, or immoral a criminal wrong, or civil wrong, or immoral behaviour. behaviour.

IllegalityIllegality

• There is no general principle of law that a person There is no general principle of law that a person who is engaged in some unlawful act is to be who is engaged in some unlawful act is to be disabled from complaining of injury done to him by disabled from complaining of injury done to him by other persons, either deliberately or accidentally. He other persons, either deliberately or accidentally. He does not become a does not become a caput lupinumcaput lupinum (an outlaw) ( per (an outlaw) ( per Latham CJ: Latham CJ: Henwood v Municipal Tramsways TrustHenwood v Municipal Tramsways Trust