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...




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, indicating...




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...








[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.