Defences to Negligence

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A defendant who is proven to be negligent may still defend himself using various defences. Some are complete defences (as in, completely barring the plaintiff's claim), whilst others only reduce the amount of damages which the defendant will have to pay to the plaintiff.

This article is a topic within the subject Torts.

Contents

Required Reading

Sappideen, Vines, Grant & Watson, Torts: Commentary and Materials (Lawbook Co, 10th ed, 2009), pp. 657-671 [16.05-16.60].

Introduction

[1] A defendant may claim a defence against a negligence claim. This is different from contesting a negligence claim (such as alleging that the damages were too remote or that the duty of care has not been breached). In the case of a defence, the defendant makes a claim and must bring evidence to prove that it, whereas in the case of contesting, it is the onus of the plaintiff to prove the defendant's liability.

Types of defences

[2] There are three defences to negligence:

  • Voluntary assumption of risk.
  • Contributory negligence (no longer a defence).
  • Delay under the statute of limitations.

Voluntary assumption of risk

Main article: Voluntary assumption of risk

[3] A plaintiff who is aware of a risk, and still puts himself in the position where the risk might eventuate, cannot recover damages if he suffers harm. This is called a voluntary assumption of risk, or volenti non fit injuria or volens for short (where there is consent, there is no injury). It is a complete defence, which means that if a voluntary assumption of risk is proved, a plaintiff will recover nothing.There can only be a voluntary assumption of risk if:

  1. Knowledge - the plaintiff had knowledge of the risk.
  2. Voluntary action - the plaintiff voluntarily made the choice to undertake the risk. A plaintiff who was constrained by circumstances from making a free choice will not be regarded as acting voluntarily.

Contributory negligence

Dedicated article: Contributory negligence

Contributory negligence occurs when the plaintiff's own negligence contributed to its own injuries.[4] Whilst contributory negligence used to be a complete defence to negligence, it now only reduces the damages recoverable by the plaintiff.[5]

To establish contributory negligence, the same test is applied as to establishing normal negligence.[6] However, there are a few extra rules (see the dedicated article).

If these requirements are satisfied, contributory negligence is found and the court will apportion damage according to relative faults. This means that the plaintiff's damages will be reduced so as to not include the damages that he caused himself.

Dangerous recreational activity

Dedicated article: Dangerous recreational activity

A dangerous recreational activity is recreational activity which involves a significant risk of physical harm.[7]. A plaintiff's claim will be defeated (complete defence) if the plaintiff's harm resulted from the materialisation of an obvious risk of such a dangerous recreational activity.[8]

End

This is the end of this topic. Click here to go back to the main subject page for Torts.

References

Textbook refers to Sappideen, Vines, Grant & Watson, Torts: Commentary and Materials (Lawbook Co, 10th ed, 2009).

CLA refers to Civil Liability Act 2002 (NSW)

  1. Textbook, pp. 657-8 [16.05]
  2. Textbook, pp. 657-8 [16.05]
  3. Textbook, pp. 658-60 [16.10]
  4. Froom v Butcher [1976] 1 QB 286
  5. Law Reform Miscellaneous Act 1965 (NSW), s 9(1)
  6. CLA, s 5R
  7. CLA, s 5K
  8. CLA, s 5L (1)
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