LAWS5024 Chap.11 Negligence Defences, Damages and Compensation
Negligence Defences, Damages and Compensation
After negligence is established, defences and damages determine the claimant's net recovery. Voluntary assumption of risk, dangerous recreational activity provisions, contributory negligence, illegality and intoxication have different requirements and effects. Damages are divided into supported heads, regulated by statute and adjusted for future uncertainty.
Death claims and no-fault schemes also change who recovers and on what basis.
What this chapter covers
- 01
Voluntary assumption of risk
- 02
Dangerous recreational activity
- 03
Contributory negligence
- 04
Illegality and intoxication
- 05
Economic and non-economic loss
- 06
Future loss and discounting
- 07
Gratuitous care
- 08
Death claims and compensation alternatives
Worked example · free
An inadequate warning and claimant carelessness
- +2Complete duty, breach and causation before introducing the visitor's conduct.
- +2Distinguish general knowledge of danger from full voluntary acceptance of the specific risk.
- +2Assess contributory negligence and state that it ordinarily reduces rather than erases recovery.
- +3Build damages by supported head and apply statutory conditions to future and non-economic loss.
- +1Give net advice without inventing an apportionment percentage.
Key terms
- Voluntary assumption
- A complete defence based on free and informed acceptance of the relevant risk.
- Contributory negligence
- Claimant fault contributing to harm and commonly producing a proportionate reduction in damages.
- Earning capacity
- The claimant's ability to earn income, loss of which may be compensable on supporting evidence.
- Non-economic loss
- Loss such as pain, suffering and lost amenities regulated by statutory conditions.
- Gratuitous care
- Unpaid care provided by others that may support damages when statutory requirements are met.
Negligence Defences, Damages and Compensation FAQ
Does an obvious risk always defeat negligence?
No. Obviousness can affect warnings, breach and claimant self-care under the relevant statutory provisions, but it is not a universal defence. Identify the specific risk, the provision invoked and the legal effect before reaching a conclusion.
How is contributory negligence different from volenti?
Contributory negligence usually reduces damages because the claimant failed to take reasonable care. Voluntary assumption of risk is a complete defence requiring genuine acceptance of the relevant risk. The factual overlap does not eliminate their different thresholds and consequences.
How should future loss be presented?
Identify the impaired earning capacity or future expense, evidence the probable path without injury, account for contingencies and apply the statutory discounting framework. Avoid presenting a lump sum without assumptions, because the reasoning behind future uncertainty is part of the legal analysis.
Can intoxication affect more than one issue?
Yes. The statutory provisions may affect liability, presumptions or damages depending on the claim. Identify the precise legal effect relied upon and keep it separate from ordinary contributory-negligence reasoning or moral criticism of the claimant.
What is the difference between loss and evidence?
A claimed head of damage names the legally recognised loss; medical records, employment history, invoices and care evidence prove its existence and amount. Linking each source to one head makes assumptions transparent and reduces duplication.
Who can claim after a person's death?
The answer depends on the statutory route. Some causes survive for the estate, while relatives may have a distinct statutory claim subject to its own conditions and recoverable losses. Identify claimant, Act and damage before calculating anything.
How should fault and no-fault systems be compared?
Compare coverage, need to prove fault, speed, administrative cost, award structure and distribution across injured people. Avoid assuming one system is always more generous or fair. The policy evaluation should follow an accurate description of each mechanism.
What is the correct order for calculating recovery?
Establish liability before treating claimant conduct as a defence, then build the gross loss by legally recognised head. Link treatment, earning-capacity and care claims to their own evidence and statutory controls. Analyse any complete defence separately from contributory negligence, which ordinarily reduces the supported award rather than dissolving duty or breach. Only after those stages should a net figure be discussed.
Keeping the calculation layered makes disputed assumptions visible and prevents an intuitive percentage from substituting for legal analysis.
Exam move
Add a final recovery section to every negligence practice answer. List each defence, its threshold and whether it bars or reduces the claim. Never choose a contributory percentage without comparing responsibility and evidential support. Build a damages ledger with past economic loss, future capacity, care, treatment and non-economic loss, marking the statutory condition beside each.
For death problems, identify the claimant and statutory cause of action before measuring loss. Compare fault-based damages with no-fault schemes through coverage, proof, timing and distribution rather than slogans about generosity or fairness.
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