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DEFENCES TO ACTIONS IN NEGLIGENCE

COMMON LAW Contributory negligence Voluntary assumption of risk Illegality CIVIL LIABILITY ACT Pt 1A ss5F to 5I: Assumption of Risk ss5R to 5T: Contributory Negligence Pt 5 s45 Highway Immunity restored Pt 6 Intoxication Pt 7 Self-Defence & Recovery by Criminals EXAMPLES OF CONTRIBUTORY NEGLIGENCE. Insurance Commission v Joyce (1948) 77 CLR 39 The facts: The case for the plaintiff was that while he was being driven in D's car as a gratuitous passenger D drove so negligently that the car first ran into a stationary truck and then into a fence and P was seriously injured. Both parties were found drunk The Decision: The High Court refused the plaintiffs appeal on the basis that as he had chosen to ride in a car driven by a man who was clearly intoxicated, he could expect only the standard of driving of a person in that condition. Alternatively, the plaintiff had voluntarily assumed the risk of injury or been guilty of carelessness toward his own safety that amounted to contributory negligence. South Tweed Heads Rugby League Football Club Ltd v Rosellie Jonnell Cole & Or [2002] NSWCA 205 (12 July 2002) (Spumante Case) The Facts: First Respondent (Ms Cole) was seriously injured when struck by a motor vehicle driven by the Second Respondent (Mrs Lawrence). The First Respondent had been drinking at the premises operated by the Appellant (Club) and had consumed a large quantity of alcohol throughout the day The Decision: Per Santow JA: (2) The result in the case follows whether the reasoning is expressed in terms of the existence or absence of the duty of care, or the chain of causation being broken by the deliberate act of the plaintiff, or the principles of volenti non fit injuria or novus actus interveniens. Robert Allan Moore v Reece Gordon Woodforth [2003 NSWCA 9] The Facts: On 3 January 1998 P the appellant was injured when struck by the propeller of a motor boat owned and driven by D the respondent. The appellant was snorkelling in the Swansea Channel at the entrance to Lake Macquarie. The Decision: A defence of volenti non fit injuria (Voluntary assumption of risk) was rejected, but damages were reduced by 40% for contributory negligence

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The Contributory Negligence of P (1) not taking a diver's flag, (2) spearfishing near a navigational buoy, (3) relying only on the plaintiff's hearing to warn him of approaching boats, (4) not wearing a fluorescent wet suit and (5) "flaunting of the prohibition against spearfishing". Volenti and Contributory Negligence "[T]he law of torts has never established a firm line identifying when the principle of the volenti ceases to operate and questions on contributory negligence cut in." per Spigelman CJ in Desmond v Cullen [2001] NSWCA 238,

CONTRIBUTORY NEGLIGENCE
Traditionally contributory negligence was a complete defence in Common Law. Where an accident was caused by the combined negligence of the P and the D, then however slight the negligence of P might have been in comparison to D, P could not recover unless D was found to have had the last opportunity to avoid the harm The development of apportionment legislation Contributory Negligence: The nature of the Ps conduct The defence is established if the defendant proves the plaintiff guilty of conduct which amounts to a failure to take care for his/her own safety To plead the defence, D bears the onus of proof and must prove the requisite standard of care that has been breached by P. The Substance of Apportionment Legislation Where any person suffers damage as the result partly of his/her own fault and partly of the fault of any other persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering damage, but damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimants share in the responsibility for the damage (Law Reform (Miscellaneous) Act 1965 (NSW) s10 Motor Accidents Compensation Act 1999 s 138 A finding of contributory negligence must be made in the following cases: where the injured person or deceased person has been convicted of an alcohol or other drug-related offence in relation to the motor accident Where the drivers ability to control vehicle was impaired by alcohol and the P as an adult voluntary passenger was/ought to have been aware of this Where the injured party (not being a minor) was not wearing set 2

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belt/protective helmet, and was required by law to wear such belt/helmet CIVIL LIABILITY ACT Part 8 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 negligent in failing to take precautions against the risk of that harm. CLA 5R S5S: In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated. 5R Standard of contributory negligence (1) 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 negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time. 5S Contributory negligence can defeat claim In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated. 5T Contributory negligenceclaims under the Compensation to Relatives Act 1897 (1) In a claim for damages brought under the Compensation to Relatives Act 1897 , the court is entitled to have regard to the contributory negligence of the deceased person. (2) Section 13 of the Law Reform (Miscellaneous Provisions) Act 1965 does not apply so as to prevent the reduction of damages by the contributory negligence of a deceased person in respect of a claim for damages brought under the Compensation to Relatives Act 1897 . Contributory Negligence of Rescuers Azzopardi v Constable & Azzopardi v Thompson [2006] NSWCA 319 The Fact: The NSW Court of Appeal has found that two rescuers hit by a motor vehicle contributed to their injury by not taking due care when assisting another motorist. The two rescuers were dressed in dark clothing, neglected to turn on their vehicles' hazard lights and were not alert to oncoming traffic. The Decision: Hodgson JA and McColl JA both reduced the damages payable to the rescuers from 75% to 50%. Ipp JA dissented, finding that the rescuers ought to have been 3

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more careful when in a position of such obvious danger, and would have reduced the damages to 25%. THIS IS AN IMPORTANT CASE FOR CONTRIBUTORY NEGLIGENCE Joslyn v Berryman: Wentworth Shire Council v Berryman [2003] FACTS: Mr Berryman drank enough alcohol in the company of Ms Joslyn on Friday evening, 25 October 1996, to be so intoxicated as to feel "fairly crook" on the following morning. - He worked during the day on Saturday, rested for a time, and then, at about 9pm went to a party at a property near Dareton in south-western New South Wales. With one interruption, at about 11.30pm, Mr Berryman spent his time at the party, until about 4am, drinking alcohol. By that hour he admitted that he was beyond doubt, quite drunk. He went to sleep on the front seat of his utility motor vehicle. In his evidence he claimed to have no further recollection until he heard a scream, and realized that he was a passenger in his vehicle, which was turning over. - Mr Berryman had been friendly with Ms Joslyn before the Friday night preceding the accident. He was aware that she had lost her driving licence on her conviction for driving a motor vehicle with a blood alcohol content of 0.15g/100ml. - Early in the morning of the Sunday Ms Joslyn had placed her swag on the ground beside Mr Berryman's vehicle and had gone to sleep. Ms Joslyn woke not long after daylight, having heard Mr Berryman moving about in his vehicle. No one else was up at that time. - Mr Berryman then drove, Ms Joslyn as a passenger into Mildura, along the road upon which the vehicle was later to overturn. The journey took some 15 to 20 minutes. When they arrived at a McDonald's caf, Mr Berryman entered, ordered food, paid, drove towards the river, stopped and ate the food. He did not drink alcohol in that time. - Ms Joslyn said Mr Berryman had commenced the drive back to Dareton, but, at some time after they entered Hollands Lake Road she noticed he was dozing off. She must have reproached him for doing so for he said, "Well, you drive the car then." - He stopped the vehicle and exchanged places with Ms Joslyn. She then commenced to drive it and did so to the point of the accident. - Ms Joslyn said that she and Mr Berryman spent the Friday evening drinking together until after midnight at hotels in Wentworth. Afterwards they returned to Ms Joslyn's residence where they continued drinking. - Ms Joslyn took a bottle of whisky with her to the party on the following Saturday evening. She travelled as a passenger in a car with three other women. Ms Joslyn drank from the bottle at the party. She too was seriously affected by alcohol, and the blood alcohol reading, some hours later, was 0.102g/100ml. Indeed Ms Joslyn was observed by others at the party to be "quite drunk and staggering about" at 4.30am. - Ms Joslyn had last driven a vehicle three years earlier. She had at some time 4

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previously told Mr Berryman of that. She did not see the curve until the last minute. "It was just there all of a sudden and it turned really sharply and the car wouldn't go round the bend." - By the time the vehicle entered the curve Ms Joslyn had been driving, she estimated, for a couple of minutes at most. She could not say at what speed she travelled as the speedometer of the vehicle was broken. - Describing the curve where the vehicle left the road and overturned, she said that it looked as if it were just a simple curve "and then it goes right back around sharply". That was something she realized when she was already in the curve. Mr Berryman suffered serious injuries in the accident.
HELD

Boyd-Boland ADCJ found for Mr Berrymen but reduced damages by 25% for contributory negligence. NSWCA - Priestley JA, Meagher JA and Ipp AJA upheld Mr Berryman's appeal by holding that he was not guilty of any contributory negligence at all. The leading judgment was given by Meagher JA with whom the other members of the Court agreed. "His Honour, as I have said, made a finding of 25% contributory negligence against the plaintiff. The only action of his which could possibly have amounted to contributory negligence was permitting Miss Joslyn to drive instead of him. In this regard, one must view matters as they stood at the time of handing over control of the car, (not as they were in the previous 24 hours), a task which his Honour did not really undertake. One must also, if one concludes that at the time of handing over Mr Berryman was too drunk to appreciate what was happening, a situation as to which there is no evidence in the present case, judge the question of contributory negligence on the hypothesis that the plaintiff did have sufficient foresight to make reasonable judgments. But, although at the time of the accident the blood alcohol levels of Miss Joslyn and Mr Berryman were estimated as being 0.138g/100ml and 0.19g/100ml respectively, there is no evidence that either of them were drunk at the time, and certainly no evidence that at the time Mr Berryman had any reason to think that Miss Joslyn was affected by intoxication. Indeed, quite to the contrary. Of the people who were present who gave evidence, all said that Miss Joslyn showed no signs of intoxication. His Honour so found. Despite, therefore, one's reluctance to overrule a trial judge's finding on apportionment (Podrebersek v Australian Iron and Steel Pty Ltd), it seems quite impossible to justify his Honour's conclusion on contributory negligence. I would be in favour of reducing it from 25% to 0%."

Gummow & Callinan JJ Considered the effects of alcohol and knowledge of the alcohol consumption in Contributory negligence. A person in the position of Mr Berryman ought to have known, and in fact would have known (if he had not precluded himself from knowing by his own conduct) that Ms Joslyn's capacity must have been impaired, and probably grossly so, by the amount of alcohol she had drunk, not only during the immediately preceding evening, but also on the night before that. 5

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Furthermore Mr Berryman either knew, or ought to have known that the effects of two consecutive evenings of immoderate consumption would have had a compounding effect of tiredness and reduced attentiveness upon both of them... Factually the Court of Appeal erred in not finding that Mr Berryman's and Ms Joslyn's faculties, and accordingly their capacities to observe, react, assimilate, and deal with information and to drive a motor vehicle must have been seriously impaired by the consumption of alcohol.

Voluntary Assumption of Risk

In general where P voluntarily assumes the risk of a particular situation, she/he may not be able to maintain an action against D for negligence in relation to that situation The elements P knew or perceived the danger P must have fully appreciated the risk of injury created by the danger P must have voluntarily accepted the risk Scanlon v American Cigarette Company Overseas Pty Ltd (No 3) [1987] VR 289 If it is to be the case that the smoking of the said cigarettes involved risk of injury as alleged the P knew or ought to have known that the smoking of the said cigarettes involved such risk and the P accepted, consented to and voluntarily assumed the same ( extract from Ds statement of defence) Issue: whether VAR is based on subjective knowledge or an objective/constructive knowledge is sufficient What constitutes acceptance of the risk? RISKS UNDER THE CIVIL LIABILITY ACT

RISKS OBVIOUS INHERENT

Voluntary Assumption Risk IN THE CIVIL LIABILITY ACT (Division 4, S5F) OBVIOUS RISK CLA 5F Meaning of obvious risk 6

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(1)an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (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 prominent, conspicuous or physically observable. S 5I(2) An inherent risk is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill. Qualifications: CLA 5G Injured persons presumed to be aware of obvious risks 5G(1) In determining liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk 5G(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, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk. Falvo v Australian Oztag Sports Association & Anor [2006] Under 5G the risk was an obvious risk. The Facts: The plaintiff injured his knee while playing Oztag (touch football) on the defendant council's field. The field had several sandy patches where the council had topped up' wear to the grass and the injury was suffered when the plaintiff stepped in one of these. The Decsion: Ipp JA, in his leading judgment, upheld the trial judge's finding that the field was in a fit condition and that the defendant was not liable. He found that the risk from the condition of the field was one substantially similar to many other fields used for amateur sport, and that the risk was obvious to all. Eutick v City of Canada Bay Council [2006] NSWCA 30 (3 March 2006) The Facts:The plaintiff was a pedestrian who tripped over the ridge of a gully or depression in a roadway. In the leading judgment, Campbell AJA held that the risk was very obvious', as part of the normal incident[s] of life', and that it did not pose a significant risk. Held: This was held to be the case in spite of the fact of the injury and the amount of traffic on the roadway, which was said to have added to the risk. His Honour held the defendant council was entitled, having regard to the obviousness of the risk, and the limited nature of the hazard posed by it, to expect that the exercise of reasonable care for their own safety by pedestrians would obviate the need for any further response' to the risk.

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His Honour added that s5G(1) CLA put the onus of proving that the risk was not insignificant' on the plaintiff, and that she had not discharged this. CLA 5H No proactive duty to warn of obvious risk S5H (1) the defendant does not owe a duty of care to another person ( "the plaintiff" ) to warn of an obvious risk to the plaintiff. S5H (2) The defendant retains the duty to warn of obvious risks in the following cases: (a) the plaintiff has requested advice or information about the risk from the defendant, 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 injury to the plaintiff from the provision of a professional service by the defendant S5H (3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection. Recreational Activities: Obvious Risks As a matter of law, there is a point at which those who indulge in pleasurable but risky pastimes must take personal responsibility for what they do. That point is reached when the risks are so well known and obvious that it can reasonably be assumed that the individuals concerned will take reasonable care for their safety (Prast v The Town of Cottesloe Ipp J ) CLA in relation to Recreation Activities 5L No liability for harm suffered from obvious risks of dangerous recreational activities (1) A person ( "the defendant") is not liable in negligence for harm suffered by another person ( "the plaintiff") as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff. (2) This section applies whether or not the plaintiff was aware of the risk. s5L(2) specifically stipulates that the s5L(1) exclusion of liability for harm suffered as a result of obvious risk associated with recreational activities applies whether or not the plaintiff was aware of the risk.

5M No duty of care for recreational activity where risk warning (Refer to CLA) (1)The fact that a risk is the subject of a risk warning does not of itself mean: (a) that the risk is not an obvious or inherent risk of an activity, or (b) that a person who gives the risk warning owes a duty of care to a person who 8

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engages in an activity to take precautions to avoid the risk of harm from the activity. 5N Waiver of contractual duty of care for recreational activities (Refer to CLA) (1)Despite any other written or unwritten law, a term of a contract for the supply of recreation services may exclude, restrict or modify any liability to which this Division applies that results from breach of an express or implied warranty that the services will be rendered with reasonable care and skill. (2)Nothing in the written law of New South Wales renders such a term of a contract void or unenforceable or authorises any court to refuse to enforce the term, to declare the term void or to vary the term. Fallas v Mourlas [2006] NSWCA 32 (16 March 2006) The Facts: The plaintiff was holding a spotlight from a vehicle, while others shot the kangaroos. He was accidentally shot by the defendant when the defendant tried to unjam his weapon, despite having given the plaintiff assurances that the weapon was not loaded. The defendant argued it was an obvious risk in the course of a dangerous recreational activity (s5L CLA). Decision: The court held unanimously (Ipp JA, Tobias JA and Basten JA) that spotlighting was a dangerous recreational activity'. Ipp JA and Tobias JA held that for the risk to be significant' (s5K) it must have been a somewhere between a trivial risk and a risk likely to materialise'. Ipp JA held that in determining whether a recreational activity was dangerous involved particularising and segmenting the activity where necessary. The court held by majority (Ipp JA, Basten JA) that the risk that eventuated was not an obvious risk' (s5F) in the course of a dangerous recreational activity because of the defendant's assurances that the gun was not loaded. It therefore ruled in favour of the plaintiff.

INHERENT RISK
5I No liability for materialisation of inherent risk (1) A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk. (2) An "inherent risk" is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill. (3) This section does not operate to exclude liability in connection with a duty to warn of a risk. By engaging in a sport or pastime the participants may be held to have accepted the risk which are inherent in the sport but this does not eliminate all duty of care of the one participant to the other Lormaine Pty Ltd v Xuereb [2006] The defendants could not be held liable in negligence by an inherent risk as established in s5I. The Facts: The NSW Court of Appeal has held that a shipowner was liable for a 9

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woman's injuries when she was washed from the bow by a rogue wave'. One of the defences raised by the shipowner was that the waves were an inherent and obvious risk of dolphin-watching. Decision: However, the shipowner was unable to prove that the risk was obvious because the brochure had given the impression of a gentle cruise. Also, the ship's presence in a known wave zone' meant that the risk was avoidable, not inherent. The woman's damages were reduced, however, because the trial judge had not considered pre-existing conditions and the plaintiff had failed to alleviate the symptoms by losing weight. VAR in the Work Place Smith v Baker & Sons P (injured by falling rock while working a drill, fellow workers had complained of the danger previously, issue whether P voluntarily accepted the risk, held defence not applicable) The defence is not constituted by knowledge of the danger and acquiescence, but by an agreement to run the risk and to waive your rights to compensation THIS IS A VERY IMPORTANT CASE..READ IT AND KNOW IT. Swain v- Waverley Municipal Council [2005] Pre-Civil Liability Act: Obvious Risk The discussion of recreational activities and wether going to the beach is included under 5L & 5M of CLA. Also, IF the incident occurred in 1997 does the CLA apply in the 2005 Judgement? NO.. Facts - Three people went to the beach that afternoon, the plaintiff and his two companions. - The conditions were benign; P argued the benign conditions hid a danger. - P and his two companions (Mr Wilson & Ms Galvin) went into the water between the flags, and that was a strongly contested issue at the trial. - Mr Wilson, went in first. He was wading out when he kicked something and it was the edge of a sandbar a sharp sand wall when he was about waist-deep. He did not see it before that. - Ms Galvin went into the water and stumbled into a level change, a variation in the water depth. She did not see that before she encountered it. - Ps evidence was that he went into the water to about waist-deep or a little higher, when a wave came towards him. He dived a flat dive into the wave, and that is all he recalled until he realised that he was severely injured. He saw nothing. - So, to that extent, there was a condition in the water, which was not obvious to those three people at least. - Ds case was that by reason of drink and taking ecstasy the night before, P was reckless and was outside the flags - The lifeguards (Mr Nightingale) evidence was that he patrolled the beach. He could not say what had occurred with respect flag placement between 6 am and 10 am. From 10 until the afternoon when the accident occurred, the flags had not been moved, the conditions on the beach had not changed. He patrolled the beach and observed conditions in the water from his outlook post on the north end at the 10

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beach. - Mr Nightingale gave evidence that he could tell whether the water was shallow or deep, where there were sandbars and where there were not by the colouration of the water (ie. Sandbar is yellowy and deeper water is darker green). - The flags would be moved if conditions required it. The determination of whether conditions required it was made by the lifeguards on duty at the time. Mr Nightingales evidence was that he both patrolled either on foot, an all-terrain vehicle, or observed from his position at the lookout post. Nobody asked Mr Nightingale whether there was any safer place to put the flags. - Suffering a spinal injury in surfing was reasonably foreseeable. There was evidence of that inasmuch as the surf lifesaving club kept equipment to deal with spinal injuries. - Damages had been agreed. - The jury found contributory negligence of 25 per cent (ie. presumably, diving under a very small wave) and the effect of that was to reduce the agreed damages to a judgment figure of $3.75 million.
HELD

- NSWCA - Upon the appeal, the Court of Appeal being constituted by Chief Justice Spigelman (dissenting) and Justices Handley and Ipp (majority), the Court of Appeal split in favour of the Council. During the course of the appeal the appellant Council amended and raised a ground of appeal that there was no evidence to support a finding that the placement of the flags was negligent. Ultimately, it was that ground alone which succeeded before the Court of Appeal. Chief Justice Spigelman, finding there was evidence, Justices Ipp and Handley finding that there was none. Menzies QC: The majority said that although it was safe to swim, although there may have been a representation that it was safe to swim, that is not to say it was safe to dive... Justice Spigelmans position on that was surfing at Bondi Beach or anywhere else requires as part of the activity, diving, so that distinction really goes nowhere. If it was safe to swim then one has to accept, we say, it must incorporate safe to dive, obviously within reasonable bounds HC 3-2 majority found in favour of Mr Swain BUT the appeal was limited to whether the NSWCA should have disturbed the jurys finding of breach of negligence.

Gleeson CJ: The system does not regard the trial as merely the first round of a contest destined to work its way through the judicial hierarchy until litigants have either exhausted their resources or their possibilities of further appeal. Most decisions of trial courts are never the subject of appeal. When there is an appeal, the appellate court does not simply retry the case.

McHUGH J: That is the only issue in the case, is it not? The issue is so narrow you can
hardly see it. It is whether the representation that Mr Nightingale agreed the flags indicated that it is safe swimming includes safe diving through waves as you go 11

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out into the water... I would have thought 90 per cent of people, at least under the age of 50, get wet by diving through the first lot of waves they encounter, and this is what your client did, did he not?

GUMMOW J: You see, your evidence was that the flags were not moved. That was
your point. MR MENZIES: Yes. GUMMOW J: And you say it was up to your opponent to say some exculpation. Swain Insight to how the HC view the operation of the CLA MR MENZIES QC: Indeed, because obviously the defendant, in considering its duty, has to take into account that sometimes people do do risky manoeuvres and that may be the simple explanation for it. Of course, so far as closing every beach in Australia, that is of historical interest, certainly in New South Wales, because as a result of the Civil Liability Act the chances of this plaintiff, were he to proceed now and succeed in tort against the defendant, are nil. KIRBY J: It cuts a little both ways, that it is Parliament saying that the approach of the courts in the past has been too generous or as Justice Thomas said too Santa Claus. MR MENZIES QC: Your Honour, what it demonstrates, in our respectful submission, is the legislature doing its job as it perceives it to be and that is, there is a policy decision made, policy decisions generally speaking are for the legislature, not for courts. The legislature has decided as a matter of policy that these torts are no longer sound in damages in New South Wales for whatever reason. It is not a bad example of the separation of powers and the appropriate organ of Government. KIRBY J: How is that done? Have you the section of the civil liability? Has that passed into law in New South Wales? MR MENZIES QC: It is now, your Honour, yes. It was not relevant at the time. I did not include it on our list or provide copies, but it is the Civil Liability Act 2002 and it Division 5 Recreational Activities - -

GUMMOW J: What does it say? What is the critical provision? MR MENZIES QC: Well, 5J: applies only in respect of liability in negligence for harm to a person (the plaintiff) resulting from a recreational activity engaged in by the plaintiff. Recreational activity is divided into two kinds. There is; dangerous recreational activity means a recreational activity that involves a significant risk of physical harm. That is in the definition section 5K, and: recreational activity includes: (a) any sport . . . (b) any pursuit or activity engaged in for enjoyment, relaxation or leisure, and 12

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(c) any pursuit or activity engaged in at a place (such as a beach . . . 5L No liability for harm suffered from obvious risks of dangerous recreational activities . . . 5M No duty of care for recreational activity where risk warning so that liability would seem to be excluded if a risk warning is put up, assuming this is a recreational activity. If, on the other hand, as Chief Justice Gleeson points out, this might well be regarded as a dangerous recreational activity, you do not even have to put a sign up, that is the end of it. KIRBY J: It does not sound as though this is categorised. That is paragliding and things of that kind, I would have thought, because they say, such as on a beach in the definition of recreational activity. MR MENZIES QC: True. GLEESON CJ: What about recreational activities that are dangerous for some people, like people who cannot swim, and not dangerous for others? MR MENZIES QC: I have no doubt that at some point that is going to entertain your Honours. GUMMOW J: Here we are again, more imperfect law reform.

ILLEGALITY
The traditional Common Law position on illegality is usually summed up in the Latin maxim ex turpi causa non oritur action which means that no cause of action may be founded on an illegal act What is Illegality? There are three possible interpretations of illegal act in this context: (a) action in breach of the criminal law; (b) criminal action and also conduct in breach of the civil law; (c) a criminal wrong, or civil wrong, or immoral behaviour. Illegality: The Traditional Position in Common Law There is no general principle of law that a person who is engaged in some unlawful act is to be disabled from complaining of injury done to him by other persons, either deliberately or accidentally he does not become a caput lupinum (an outlaw) per Latham CJ: Henwood v Municipal Tramways Trust

Illegality under the Civil Liability Act Section 54 Criminals not to be awarded damages (1) A court is not to award damages in respect of liability if the court is satisfied that: 13

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(a) the person whose death, injury or damage is the subject of the proceedings was, at the time of the incident that resulted in death, injury or damage, engaged in conduct that (on the balance of probabilities) constitutes a serious offence, and (b) that conduct contributed materially to the risk of death, injury or damage

The Scope of the section The section applies whether or not a person whose conduct is alleged to constitute an offence has been, will be or is capable of being proceeded against or convicted of any offence concerned Self-Defence against Unlawful Conduct II & S52 No civil liability for acts in selfdefence S52 (1) A person does not incur a liability arising from any conduct of the person carried out in self-defence, but only if the conduct to which the person was responding: (a) was unlawful (b) would have been unlawful if the other person carrying out the conduct to which the person responds had not been suffering from a mental illness at the time of the conduct. S52(2) The defence is only available if and only if at the time of the relevant act, the defendant believed the conduct was necessary: (a) to defend himself or herself or another person, or (b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or (c) to protect property from unlawful taking, destruction, damage or interference, or (d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass, and the conduct is a reasonable response in the circumstances as he or she perceives them S52 (3) This section does not apply if the person uses force that involves the intentional or reckless infliction of death only: (a) to protect property, or (b) to prevent criminal trespass or to remove a person committing criminal trespass. 53 Damages limitations apply even if self-defence not reasonable response 53(1) If section 52 would operate to prevent a person incurring a liability to which this Part applies in respect of any conduct but for the fact that the conduct was not a reasonable response in the circumstances as he or she perceived them, a 14

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Contributory Negligence, Voluntary Assumption Of Risk, Illegality, Self-Defence

court is nevertheless not to award damages against the person in respect of the conduct unless the court is satisfied that: (a) the circumstances of the case are exceptional, and (b) in the circumstances of the case, a failure to award damages would be harsh and unjust. 53(2) If the court determines to award damages on the basis of subsection (1), the following limitations apply to that award: (a) Part 2 (with the exception of Division 3 of that Part) applies with respect to the award of damages despite section 3B (1) (a), and (b) no damages may be awarded for non-economic loss. The Test to Disentitle the Defence In each case the question must be whether it is part of the purpose of the law against which the P has offended to disentitle a person doing the prohibited act from complaining of the other partys act or default Italiano v Barbaro (injury sustained while parties were in the process of looking for a spot to stage accident)

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