Defences to the Tort of Negligence
The standard set out in section 23 of the Civil Liability Act and the Wrongs Act 1954 (Tas) to determine contributory negligence is simply whether a person who suffered harm has engaged in contributory negligence. This is determined on the basis of the standard of the reasonable person, and whether the person has acted as a reasonable person would have is decided on the basis of what the person knew or ought to have known at the time.
Intoxication attracts a presumption of contributory negligence (s5, Civil Liability Act). The courts can reduce a plaintiff’s damages award by 100%, and where intoxication is involved, the minimum reduction with intoxication is 25%, but can be greater.
The Court determines questions of contributory negligence on the basis of fact. To determine contributory negligence, the court uses a twofold test. First they determine whether negligence on the part of the plaintiff occurred, and secondly they attribute a value – usually a percentage, to the negligence. So, for example, a court may decide that a plaintiff contributed 30% to the overall negligence.
Obvious Risks and Voluntary Assumption of Risk – sections 16 and 17
The common law required that the defendant make out the defence of the plaintiff’s voluntary assumption of risk. With obvious risk cases under the Civil Liability Act, a plaintiff is presumed to be aware of an obvious risk unless s/he can prove on the balance of probabilities that s/he was unaware of the risk (s16(2)). However, a defendant must still establish the consent of the plaintiff to the obvious risk.
Moreover, section 17 has taken away the need to warn in respect of ‘obvious risks’ unless a plaintiff has requested advice or information about the risk from the defendant (s17(2)(a)). What is determined as an obvious risk is determined on the basis of the reasonable person. The obvious risk provisions establish knowledge on the part of the plaintiff, but not consent. Only a voluntary assumption of risk constitutes a complete defence to negligence, and so, a defendant must establish consent. Courts are also very restrictive in finding obvious risk.
Dangerous recreational activities
Sections 19 and 20 have altered the common law in respect of dangerous recreational activities. The Civil Liability Act states that people engaged in ‘dangerous recreation activities’, being a recreational activity that involves a significant degree of risk of physical harm to a person, undertake the activity at their own risk. A defendant will not be held liable for a breach of duty for harm suffered as a result of a dangerous recreational activity, if the potential harm is an obvious risk, and participants in the dangerous recreational activity are assumed to be aware of the risk. This is voluntary assumption of risk: knowledge and consent. Courts are very restrictive in classifying an activity as a dangerous recreational activity (DRA). Bungee jumping, however, is one such DRA. For example, if a person engages in bungee jumping, and the person winds up a paraplegic, they are assumed to have been aware of the obvious risk, even if they were not, and so can not make out a rebuttal of the presumption of that knowledge.
Page last updated 15/12/2017