Defences

Negligence Law

Defences

Contributory Negligence

If a plaintiff is found to have acted to their own detriment in a situation, so that they are partially or wholly responsible for the harm they are suing for, then either their claim is defeated, or the sum they can recover in damages is reduced. There are two elements to contributory negligence:

Did the plaintiff do what they should have done to take care of themselves?
If not, did their failure to take reasonable care contribute to the harm that was suffered?

If a certain precaution is commonly understood by the general public, then the plaintiff is held to have been negligent in not taking such a precaution. Examples are a car accident resulting in injury due to failure to wear a seatbelt (irrespective of the road rules), or crossing a road without streetlights, wearing dark clothing, in a fog and being struck by an approaching vehicle.

The latter example comes from Pennington v Norris. The High court was asked whether the 50 percent reduction in damages at the trial should be reduced. The High Court ruled that the blame of the defendant driver was much greater than the blame of the plaintiff pedestrian, in that the plaintiff was not expected to look out for the potential of an accident. Case facts showed that the driver was taking less than reasonable care under the circumstances. Therefore the driver was found to be 80 percent to blame and damages were increased accordingly. A curious thing about this decision is that while a person acting reasonably would watch carefully for oncoming vehicles while crossing a road in fog, the court did not think a pedestrian should have to do this.

Actions taken in crisis situations are treated differently to those taken where there is time to think. In Caterson v Commissioner for Railways a person boarded a train, accidentally leaving their 14 year old son on the platform, 40 miles from home. The next station was 80 miles away. They then jumped off the train while it was speeding up and were injured. The plaintiff had failed to check for a communication cord which could have signaled the driver to stop. The court did not consider this unreasonable due to the brevity of time in which to act and the time it may take to find the cord, the possibility of panic, and the choice being between risk and serious inconvenience. This was deemed not to be contributory negligence.

Voluntary Assumption of Risk

The voluntary assumption of risk is a complete defence. The elements of it are similar in are way to contributory negligence, but it is a more complete act and a more complete state of mind, in terms of the plaintiff exposing themselves to risk. The elements are:

The plaintiff had an actual and full appreciation of risk and,
The plaintiff voluntarily accepted it.

When a risk is obvious the plaintiff is assumed to have accepted it. In Scanlon v American Cigarette Company the plaintiff had started smoking at the age of 15 and, smoking 20 cigarettes per day, contracted lung cancer. The defence was that the plaintiff knew or ought to have known the risk of smoking, and thereby accepted the risk. The court ruled that the defendant must establish that the plaintiff had actual knowledge of the facts giving rise to the risk and fully accepted it. This is as opposed to the situation where someone ought to have known. But it is not enough for the plaintiff to merely disown knowledge of the risk as knowledge can be inferred from their conduct and the circumstances.

Therefore when a safety warning or safety information is given to the plaintiff, it becomes much easier to argue voluntary assumption. The voluntariness of acceptance of a risk is a question of fact and is to be deduced from the circumstances. It ordinarily be a non-issue, except in cases of an employee carrying out work instructions, or a person under some sort of duress.

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 Chapman negligently collided with the rear of a vehicle which had slowed down to turn, 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 and Warnings

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.

When a warning notice or a limitation of liability declaration is posted in a visible location or printed on a product label, or present in a contract of sale, the duty of care is limited in accordance with that notice or clause. To many people this may seem unfair as it is impractical to read everything that is presented to be read. However, the law is unable to make any distinction between sincere warnings and those intended only to ward off unlikely contingencies. For instance, a showground ride may present danger to some persons who are particularly small or large or physically weak and unfit. It is appropriate to provide warnings to those who are at risk (if not banning them outright). Then again, an identical warning may exist on another ride that is quite innocuous and tame, such that patrons feel they are safe in ignoring the warning and getting on with a day of leisure. Likewise it is common for contracts for the use of software or online services to be quite verbose and to be ignored due to inconvenience. Nevertheless the law allows warning signs, notices and terms of use to limit and to eliminate liability.

A recent case reaffirming this point is Mallonland Pty Ltd & Anor v Advanta Seeds Pty Ltd A group of sorghum farmers in Queensland purchased sorghum seeds that had been produced by Advanta. Unknown to them the seeds contained contamination in the form of seeds of another plant called shattercane. Visually similar to sorghum, it differs in that it is inappropriate as a grain crop, spreads widely, is hard to control and renders a paddock unsuitable for crops for many seasons thereafter. The farmers had much expenditure in herbicide and pesticide and had to grow less lucrative crops for a considerable time.

The seed bags featured terms which were stated to be conditions of sale and use, limiting liability of Advanta to the cost of replacement of goods, in the event that the contents of the bag do not fit the description.

Advanta won the trial and both appeals. It had not assumed a position of responsibility to the farmers. No assumption of responsibility means no duty of care. The Queensland court of appeal ruled that for a disclaimer to be valid it:

…must be of such clarity and prominence to convey that the manufacturer is not accepting responsibility for the product supplied in the event it causes relevant loss.

Further, the use of terminology like “Attention” and “Conditions of sale and use” helped to draw attention to the disclaimer. Further, the disclaimer was in plain English and not hard to understand. Of note, given that this concerns a product label, it is worth reflecting on how a warning label would have affected Donoghue v Stephenson. If the fabled bottle of ginger beer had featured a warning notice that the drink may contain contaminants, then MS Donaghue may not have received an order for damages.

Pennington v Norris (1956) 96 CLR 10.

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

Scanlon v American Cigarette Company (Overseas) Pty Ltd (No 3) [1987] VR 289.

Gala v Preston (1991) 172 CLR 243.

Chapman v Hearse (1961) 106 CLR 112.

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

Mallonland Pty Ltd & Anor v Advanta Seeds Pty Ltd [2024] HCA 25.

Mallonland Pty Ltd v Advanta Seeds Pty Ltd [2023] QCA 24, [115]