On appeal the court found it was bound by mchale and

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On appeal the court found it was bound by McHale and therefore the P was found not to be CN. P said that he did not have the knowledge of a reasonable 11 year old. Court said that it could not take that information into account because the test was objective. 34
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A distinction was made between the Ds state of knowledge and physical and mental handicaps. TEST: The standard of care required is that of a reasonable child of the same age. Element 2 – Causation A P is contributorily negligent if the P’s failure to take reasonable care was a cause of their loss. Both factual and legal causation must be taken into account. A distinction is drawn between causing an accident and causing the injury. Its enough that the P’s CN contributed to either the accident or the injury. In most cases the P’s CN contributes to either the accident or both. How can the P’s CN contribute to the injury but not the accident? Froom v Butcher [1976] QB 286 (CB 387) P was seriously injured in a head on collision with D. The P did not contribute to the accident. P was not wearing a seatbelt. P was injured much more seriously than he normally would have. At the time in England there was no law requiring a seatbelt to be worn. Not acting illegally. In most cases the cause of the accident and injury are the same. In this case the accident was solely due to the D’s negligence but the accident was due partly to D’s negligent driving and partly due to P’s failure to wear a seat belt. Moreover it is the cause of the injury not the accident that is relevant. Moreover the P did not take reasonable care for his own safety and therefore CN was made out. Consequences of Defense being made out P’s damages will be reduced (s62) and potentially reduced to 0 (s63). In the vast majority reduction will occur. 2 criteria for reducing liability. 1. Extent to which each party departed from the SOC. - Pennington v Norris (1956) 96 CLR 10 (CB 395) 2. How significant each negligent act was in causing the injury. – Wynbergen v Hoyts Corp 1997 35
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(b) Volenti non fit injuria (Voluntary Assumption of Risk) – Complete Defense Wrongs Act 1958 (Vic) ss 53-55 Courts prefer using CN rather than volenti. Elements of volenti: 1. P knew of the facts constituting the danger – Actual knowledge necessary ( Scanlon v American Cigarette Company Overseas Pty Ltd [1987] VR 289 (CB 410) 2. P fully appreciated the danger inherent in those facts – Actual knowledge necessary; and 3. P voluntarily incurred the risk that this danger would eventuate 4. Obvious Risks – WA s53 and s54 5. Inherent Risks – WA s55 Element 1 and 2 EG: Diving off a cliff. Element 1 : Do they know they are diving off a cliff, do they know that it is shallow water. Element 2: Do they know that diving off a cliff into shallow water is dangerous. Drunk driver scenario is difficult to make out, it will be easy to show the court that the D did not know the driver was drunk or was too drunk themselves to know.
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