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Tort Law - Negligence

Defences - Illegality, etc

Illegality and Intoxication

Where the plaintiff and defendant, or the plaintiff alone, is involved in illegal activity at the material time, firstly this negates that duty of care and reduces the standard of care expected. This goes to the extent that no breach of duty of care can be found. Illegality therefore operates as a complete defence.


A mere breaking of the law is insufficient on its own to be used as a defence. The specific elements of the situation leading to the harm must be considered. In short, it must be proven that the cause of harm is a factor integral to the illegal activity. When such is proven, no duty of care arises to assist the plaintiff. The unlawful activity also must be serious enough. Breaking a by-law is not enough. Courts interpret statutes to determine whether it was intended to deprive a transgressor from a civil remedy, or to prevent suits against the alleged tortfeasor.

The issues of intoxication and illegality were both in play in the matter of Gala v Preston. A group of intoxicated youths stole a car and drove it around intending to commit burglaries. They crashed the vehicle into a tree, resulting in injury to the plaintiff. The Plaintiff was found to be sufficiently intoxicated so that he could not have voluntarily accepted the risk he was exposed to. However as a result of the illegal activity the driver owed him no duty of care.


Volunteers and Good Samaritans

A Good Samaritan is a person who steps in and lends assistance to another without expectation of reward and at personal risk. A volunteer is a person who involves themselves in community work on a voluntary basis. (The definition of volunteer is not broken even if they happen to be given some sort of payment for their work). In Chapman v Hearse[2] Chapman negligently collided with the rear of a vehicle which had slowed down to turn while indicating. Chapman was flung out onto the road and injured, and the other vehicle was overturned. A doctor, Dr Cherry, went to aid Chapman, but was run down and killed by Hearse, also driving negligently. An action was successful against Hearse by Dr Cherry’s estate. Hearse then brought action against Chapman for contribution. Due to the causal chain, the case depended on whether Chapman was liable to Dr Cherry through Dr Cherry’s attempt to rescue him.

The High Court reasoned that while Dr Cherry voluntarily put himself in a situation of danger, (and thus placed Hearse in a situation where he was likely to cause the accident), Dr Cherry’s actions were not viewed as his own. The court considered that a reasonable person in Mr Chapman’s position, while still driving, would not naturally foresee the events that followed his accident. But, following the American position, it reasoned that by driving negligently a special situation for motor accidents arose, so that reasonable foresight was imputed to him. Therefore he was liable to Dr Cherry and thereby, liable to Mr Hearse.



Contractual Exclusion of Liability

A person may sign a contract, the terms of which include the elimination of the right to sue for certain torts, or which apply a limit to damages payable. There are strict limitations on the enforceability of such terms, as there are with all contracts. In general the plaintiff must have agreed of their own free will and must not have been coerced in any way, the rights and obligations must be clear and not ambiguous, and there must be something of value (whether money, property or a definite promise) passing both ways between the parties. That is what makes a valid contract.

Next, if the terms for exclusion of liability are onerous, then they need to be given prominence – a noxious term cannot be placed in fine print or buried inconspicuously within several pages of terms. It must also be clear and explicit in its meaning.

As an example, in Gowan v Hardie, a plaintiff injured during sky diving was unable to proceed with a suit in negligence against the pilot for his negligent operation of the plane. The plaintiff’s contract for parachute training, contained a term excluding liability for negligence. Because the pilot was an agent for the parachute instructor he could rely on the parachute training contract.





[1] Gala v Preston (1991) 172 CLR 243.

[2] Chapman v Hearse (1961) 106 CLR 112.

[3] Gowan v Hardie [1991] unreported, 8 November 1991, Supreme Court of NSW.

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