Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
Defences to Negligence
-Volenti non fit injuria (Agar V Hyde) Plaintiff knew the risk, accepted it, and took the risk anyway. -Contributory Negligence (s 26 wrongs act (vic) 1958) -Plaintiffs own Negligent actions caused or partly caused the risk.
Damages
A plaintiff can claim damages on: -Property damage -Personal injury -Economic loss -from physical damage to person or property -Third party physical or property damage (Perre V Apand) -Pure economic loss (rules established in woolcock investments Pty Ltd V CDG Pty Ltd. -Reasonable foreseeability -Interdeterminacy of liability (liability must be limited in scope of # of claimaints, damages & time) -The individual autonomy factor (legitimately protecting own interests in business of society does not create duty of care to competitors) -The vulnerability to risk -Negligent misstatement
4. Defence
Volenti non fit injuria (Voluntary Assumption of Risk) The plaintiff must have fully appreciated the risk and accepted it freely and willingly. Smith v Charles Baker & Sons [1891] Agar v Hyde Cuterson v Commissioner for Railways ICI v Shatwell Dann v Hamilton casually related to actual accident occurred Gent-Diver v Neville [1953] Rootes v Shelton
Contributory Negligence damages recoverable in respect thereof shall be reduced to such an extent as the court thinks just and equitable having regard to the claimants share in responsibility. (The apportionment between the plaintiff and the defendant will be on the basis of their respective culpability) Astley v Austrus Wynbergen v Hoyts Corporation Pty Ltd - Pennington v Norris - Gough v Thorne Cook v Kirby Mclean - Cook v Cook - Neindorf v Junkovic s26 Wrongs Act (Victoria) Agreeing to be a passenger knowing the defendant was tired or intoxicated Blakeney v Scheulen Tickling the defendant driver - Braund v Henning Plaintiffs failure to take adequate care for his own wellbeing Davies v Swan Motor Co (Swansea Ltd [1949] Contributing negligence can never amount to 100% - Wynbergen v Hoyts Corporation Pty Ltd It is not necessary that the defendants negligence be the sole cause of the plaintiffs damage Bonnington Castings Ltd v Wardlaw [1956]
Res Ipsa Loquitur (The Accident Speaks for itself) Byrne v Boadle GIO v Best GIO v Frederichberg Scott v London & St Katherine Dock Co.
If there are multiple explanations, but all involve negligence by [D], then [P] must succeed, whichever explanation is chose: GIO v Best: where three possible causes where identified, all supposing [D] was negligent while driving The court may find one explanation is more probable than any others: TNT Management v Brooks