Legal defences to negligence—TEACHER NOTES

Level year: Year 11 Worksheet number: 2.3.2

Curriculum context Related worksheets

Legal Studies 2019 (General Senior Syllabus): Worksheet 2.3.0
 Unit 2: Balance of probabilities, Topic 3:
Worksheet 2.3.1
Negligence and duty of care

There are many defences available to a defendant in a civil negligence action, such as
contributory negligence, obvious risk and voluntary assumption of risk.

Learning objective
Learners will:
 explain the defences available to the defendant in a civil negligence action.

Focus question
 What defences exist in negligence law?

Key concepts
 Balance of probabilities
 Causation
 Complete defence
 Contributory negligence
 Defendant
 Liability
 Negligence
 Partial defence
 Plaintiff
 Voluntary assumption of risk

Further information
 Australia’s Magna Carta Institute, Case Note, (ruleoflaw.org.au/negligence-and-
risk-qld/)
 Caxton Legal Centre Inc., Defences to a Negligence Action
(queenslandlawhandbook.org.au/the-queensland-law-handbook/health-and-
wellbeing/accidents-and-injury/defences-to-a-negligence-action/)

Legal defences to negligence (worksheet 2.3.2) sclqld.org.au/education 1

Legal defences to negligence—STUDENT TEXT
In a civil negligence action the plaintiff is required to establish the elements of
negligence law. (Duty of care, breach of duty of care and injury/damage.) In response,
the defendant may be able to use a partial or complete defence to limit liability. The
defendant bears the onus for proving any defence. Defences can include:

 obvious risk
 inherent risk
 voluntary assumption of risk
 dangerous recreational activity
 exclusion of liability
 illegality
 inevitable accidents
 contributory negligence.

We will now examine three of these defences in more detail—obvious risk, contributory
negligence and dangerous recreational activity. These defences can be considered
together, but they can also be considered separately.

Defence Definition Additional Statute law Case example

information
Obvious risk A risk that, in What is The meaning of State of
the ‘obvious’ is obvious risk is Queensland v
circumstances, decided on a found in the Kelly [2015] 1
would have case-by-case Civil Liability Qd R 577;
been basis. Act 2003 (Qld) [2014] QCA 27
recognised by a s13.
This can be
reasonable
used as a Section 15
person in the
partial (to provides that a
position of the
reduce defendant does
plaintiff.
compensation) not have a duty
or complete to proactively
defence. warn the
plaintiff of an
obvious risk
unless the
circumstances

Legal defences to negligence (worksheet 2.3.2) sclqld.org.au/education 2

 outlined in ss(2)
apply.
Defence Definition Additional Statute law Case example
information
Dangerous An activity This can be Dangerous Wilson v
recreational engaged in for used as a recreational Lambkin [2010]
activity enjoyment, complete activity is QDC 254
relaxation or defence (Civil located in Civil
leisure that Liability Act Liability Act
involves a 2003 (Qld) s19). 2003 (Qld) s18,
significant s19.
A defendant is
degree of risk
not liable for
of physical
harm suffered
harm to a
by the plaintiff
person (Civil
if an obvious
Liability Act
risk associated
2003 (Qld) s18).
with a
dangerous
recreational
activity occurs.
Contributory A failure by the A court reduces Contributory Burke v State of
negligence plaintiff to take the negligence is Queensland &
reasonable care compensation located in Civil Ors [2013] QDC
for their safety, the plaintiff is Liability Act 186
which awarded (up to 2003 (Qld) s23,
contributes to 100%) if the s24.
any loss or defence is
injury. proven (Civil
Liability Act
2003 (Qld) s24).
A plaintiff who
has consumed
alcohol is
presumed to
have
contributed to
any harm
suffered (Civil
Liability Act
2003 (Qld) s47.

Table 1: A summary of three defences to a negligence claim: obvious risk, contributory

negligence and dangerous recreational activity.
Legal defences to negligence (worksheet 2.3.2) sclqld.org.au/education 3
Learning activities
Where you see this symbol , answers can be found within the
Supreme Court Library Queensland online exhibition Lord Atkin: from
Queensland to the House of Lords. An abridged version of this
exhibition is located in the Supreme Court Library Queensland, level
12, Queen Elizabeth II Courts of Law, Brisbane or online at:
sclqld.org.au/lordatkin

To complete the learning activities on this page, locate a copy of State of Queensland v
Kelly [2015] 1 Qd R 577; [2014] QCA 27 using the Library’s CaseLaw
(scqld.org.au/caselaw) database.

1. Reading the citation State of Queensland v Kelly [2014] QCA 27, identify the:
 plaintiff
 defendant
 judgment year
 court that heard the case.

a. What does the number ‘27’ denote?

b. There is also an authorised copy of this judgment. What does this mean? If you
needed to use this case in court to support a submission, which one would you
use?

2. Explain the key facts of this case.

3. The plaintiff in this case (who became the respondent in the appeal) was rendered a
partial tetraplegic by injuries he suffered when he ran down a sand dune and fell
into Lake Wabby on Fraser Island. This case involved two defences, contributory
negligence and obvious risk.
Read the judgment and complete the table below:

Defence Key issue Law referred to in the Decision

judgment
Obvious risk
Contributory
negligence

Legal defences to negligence (worksheet 2.3.2) sclqld.org.au/education 4