four Element Defences
Two principal defences can be raised by a D and the burden of proof rests with them:
1.
contributory negligence (governed by legislation):
the P has failed to take reasonable care for their safety or the safety of their property and this contributed to the accident which caused the damage resulting in apportionment (reduction) of damages on what is fair and reasonable.
CASE: Joslyn v Berryman (2002) 214 CLR 552; 198 ALR 137
was a complete defence only under common law, but the Wrongs Act now says that this can be a partial defence
Defences to negligence
1.
voluntary assumption of the risk (consent) (at common law) (L: volenti non fit injuria):
the P consents to or voluntarily assumes the risk of injury there must also be precise knowledge and full
appreciation of the risk e.g. voluntarily accepting a lift from a drunk driver
CASE: Agar v Hyde; Agar v Worsley [2000]
the Wrongs Act introduces the concept of `obvious
risk': ss 53 and 54
Element five: What will P recover?
In a tort action, the P will be seeking monetary compensation for the damage suffered Damage can be to the person or property damage The kind of damage must be: recognised by law; and reasonably foreseeable That is, all damage caused as a result of the breach is NOT automatically recoverable Apart from personal injury claims AND subject to defences, the D needs to pay the full amount for the damage caused.
What will P recover at common law?
1.
If there is contributory negligence: If the D is successful in proving that the P contributed to the accident which caused the damage, then the courts will reduce the damages proportionately to the blame civil (under liability legislation, up to 100%). If there is a voluntary assumption of the risk: If this defence is successfully pleaded by D, then the P will not be able to recover anything i.e. it is a complete defence. If there are no defences, then P will recover the full amount of damages.
1.
1.
What will P recover under legislation?
For personal injury claims:
no action can be brought unless injury is `significant' even then noneconomic loss (e.g. pain and suffering) is capped at $371,380 (figure stated in the legislation but indexed) and economic loss (loss of wages) is capped at 3 times the amount of average weekly earnings at the date of the award (Wrongs Act)
Time limit is changed from 6 years to 3 years for adults with an overall limit of 12 years (Limitation of Actions Act) Reforms do not apply to work place and transport accident injuries
Damages
Assessment
Measure
Once and for all rule damages are assessed once and for all at the time of trial and paid in...