37 smith v leech brain co ltd facts employees job to

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37 Smith v Leech Brain & Co Ltd FACTS: Employee’s job to work with molten metal. Due to D’s negligence the P got splashed. The burn reacted with a pre-existing cancer and he died. The wife sued. HELD: D liable. Must take victim as you find them. Test is not whether the death is reasonably foreseeable but whether the burn was. Stephenson v Waite Tileman Ltd FACTS: P suffered a workplace accident where he got cut. The cut became infected. Conflicting evidence said either and a virus got in causing brain damage to the point where he couldn’t look after himself or he was mentally vulnerable. HELD: D liable. Cutting was reasonably foreseeable. Irrelevant which evidence you go with. Affirms Nader : Take victim as you find them . DEFENCES
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Section 62(1): Standard of care for contributory negligence is the same as negligence; Section 62(2)(a): Standard is that of a reasonable person in the position of that person; and (b) to be determined on the basis of what the person knew or ought to have known at the time. Breach 38 Caterson v Commissioner for Railways FACTS: A train started without warning. The plaintiff jumped off without pulling the communication cord and was injured. HELD: Not contributorily negligent. In the stress of the moment a reasonable person wouldn’t have though to pull the cord. If the cord didn’t work it would’ve been too late. Banovic v Perkovic FACTS: P and D were at a social event together. D was known to be a social drinker was never seen to get drunk. Afterwards P and D did some work together and P didn’t notice any strange behaviour. P got into the car with D. The driving was fine until he swerved and hit a pole. HELD : P not contributorily negligent. There was no behaviour/act that put P on notice . Even if P had been too drunk to notice he would still not be contributorily negligent – there was nothing to indicate that he should’ve been alert . Joslyn v Berryman (2003 HC) FACTS: P and D had a joint drinking binge over two nights. 3 morning P decided to go an get breakfast – his BAC was 1.9. D was stumbling around and went as passenger. D noticed that P was falling asleep so took over despite the car was unroadworthy and had previously lost her licence for drink driving. P crashed and seriously injured P. P sued. Issue: Was P contributorily negligent? HELD: P was negligent. Test is whether a reasonable person who wasn’t drunk would recognise he was being exposed to danger, not whether a drunken person would. Can’t plead ignorance of facts that a reasonable person would have known.
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Section 14G: In determining breach for personal injury or death claims courts must take into account voluntary use of drugs or alcohol and the degree of intoxication ; and whether the P was engaged in an illegal activity .
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