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CL11 Defences

CL11
Defences
There are two main defences to a personal injury action. They are contributory negligence and volenti non fit injuria (to a willing person no harm is done), also known as voluntary assumption of risk.
The most common defence in personal injury matters is contributory negligence, which is no longer a complete defence. Under s 3(1) Contributory Negligence Act 1947, the damages are reduced to “such an extent as the Court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage”. An important point to note is that it is the responsibility for the damage which is the focus of the defence. For example, in a motor vehicle accident the plaintiff may be blameless as to the cause of the accident but, through not wearing a seat belt, be contributorily negligent as to the extent of the damage suffered.
Mouat v Clark Boyce [1992] 2 NZLR 559 (CA) gives consideration to the scope of the defence beyond tort claims in New Zealand. Whether the defence is available in the case of an intentional tort is still open in New Zealand as there are conflicting High Court decisions: Hoebergen v Koppens [1974] 2 NZLR 597, where the answer was “yes”; Dellabarca v Northern Storemen and Packers Union [1989] 2 NZLR 734, where the answer was “no”. In Caldwell v Croft Timber Co Ltd [1997] ERNZ 136, it was held on a case stated that the defence of contributory negligence could be available in a claim for exemplary damages. However, this was not a case based on the intentional torts but one of an injured employee suing his employer for damages in negligence, breach of statutory duty, and breach of fiduciary duty.
The other defence, volenti non fit injuria or voluntary assumption of risk, is not so common as it is still a complete defence which defeats the plaintiff’s claim. Accordingly, the Courts have been reluctant to uphold it, preferring instead to use the more equitable defence of contributory negligence. For this defence to succeed, it must be shown that the plaintiff had full knowledge of the nature and extent of the risk and still consented to run the physical and legal risks of injury, thereby absolving the defendant from all financial and other responsibility. It is a very high test and thus the defence has almost disappeared.

From Personal Injury in NZ

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