Category Archives: Defences

Consumer Law, Contract, Defences, LAW FIRM, Property Law

Petelin v Cullen [1975] HCA 24

ON 17 JULY 1975, the High Court of Australia delivered Petelin v Cullen [1975] HCA 24; (1975) 132 CLR 355 (17 July 1975).

http://www.austlii.edu.au/au/cases/cth/HCA/1975/24.html

Petelin owned land at Liverpool. He spoke little English and could not read English. Cullen through his agent sent Petelin $50 with a letter seeking his agreement to extend an option to purchase land for a further 6 months. Cullen’s agent then saw Petelin and asked him to sign to the letter that he received the $50. Petelin signed the letter believing he had signed a receipt, not an option.

Cullen sought an order for specific performance in the Supreme Court of NSW. The Supreme Court dismissed the action on the grounds that Petelin had made out the defence of non est factum. The NSW Court of Appeal then overturned the Supreme Court decision, ordering specific performance.

The High Court allowed Petelin’s appeal, overturning the Court of Appeal’s decision and dismissing Cullen’s action for specific performance.

The High Court found that Petelin was entitled to the defence of non est factum as he believed that he had signed a receipt, was not careless and that in any event, Cullen was not an innocent person without knowledge or reason to doubt the validity of the signature.

To make out a defence of non est factum, the defendant must show:

  • that he or she signed the document in the belief that it was radically different from what it was in fact, and
  • that (at least as against innocent persons) his or her failure to read and understand the document was not due to carelessness.

There is a heavy onus on the defendant to show that he or she believed the document to be radically different from what it was in fact.

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Civil procedure, Damages, Defences, Insurance Law, LAW FIRM, Law reform, Legislation, Practice and Procedure

Law Reform (Miscellaneous Provisions) Act 1946 (NSW)

ON THIS DAY in 1946, the NSW Parliament enacted the Law Reform (Miscellaneous Provisions) Act 1946.

http://www.austlii.edu.au/au/legis/nsw/consol_act/lrpa1946404

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Defences, LAW FIRM, Negligence, Personal Injury, Work injuries

Smith v Charles Baker & Sons [1891] UKHL 2

ON 21 JULY 1891, the House of Lords delivered Smith v Charles Baker & Sons [1891] UKHL 2 (21 July 1891).

http://www.bailii.org/uk/cases/UKHL/1891/2.html

The English Court of Appeal had held that a railway worker could not recover damages for his injuries because he had voluntarily assumed the risk (volenti non fit injuria).

On appeal, the House of Lords held that the worker was not barred from recovery by the mere fact that he continued to work with the knowledge of the risk or danger. Whether or not the worker has assented to the risk is a question of fact not law.

The House of Lords reversed the Court of Appeal decision, holding that there was no evidence to find that the worker consented to the particular risk that caused his injuries.

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Sydney, Australia

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Criminal Law, Defences, LAW FIRM

R v Dudley and Stephens (“Lifeboat case”) (1884) 14 QBD 273

ON 9 DECEMBER 1884, the Queens Bench Division of the High Court of Justice delivered R v Dudley and Stephens (1884) 14 QBD 273.

http://cyber.law.harvard.edu/eon/ei/elabs/majesty/stephens.html

In 1848, Sydney Barrister John Henry Want purchased an English 52 foot yacht, “The Mignonette”. Want arranged for the yacht to be sailed from England to Australia by Tom Dudley (Captain), Edwin Stephens, Edmund Brooks and Richard Parker.

On 18 May 1884, Mignonette set sail from Southampton to Sydney. On 5 July, somewhere near the Cape of Good Hope, the yacht was struck by a wave and sank. The crew abandoned ship to the lifeboat with only turnips and water.

On 29 July, the lifeboat was rescued by “The Montezuma”. The crew of the Montezuma discovered that Richard Parker had been eaten by Dudley, Stephens and Brooks. The survivors were taken to Falmouth, Cornwall, where they were interviewed about incident. Dudley and Stephens made statements to the effect that on about 25 July, Parker was close to death so they decided to kill him so they could, as well as eat his flesh, preserve his blood to drink. Brooks denied being party to the killing but admitted to eating part of Parker.

Dudley and Stephens justified their actions out of necessity to preserve their own lives. They maintained that this justification was an ancient custom of the high seas.

Dudley and Stephens were charged and tried. The matter ended up before the Queens Bench of the High Court in London.

Dudley and Stephens were convicted of murder. The court held that the law did not recognise a defence of necessity, either in precedent nor morality.

Per Lord Coleridge CJ:

“Now it is admitted that the deliberate killing of this unoffending and unresisting boy was clearly murder, unless the killing can be justified by some well-recognised excuse admitted by the law. It is further admitted that there was in this case no such excuse, unless the killing was justified by what has been called ‘necessity’. But the temptation to the act which existed here was not what the law has ever called necessity. Nor is this to be regretted. Though law and morality are not the same, and many things may be immoral which are not necessarily illegal, yet the absolute divorce of law from morality would be of fatal consequence; and such divorce would follow if the temptation to murder in this case were to be held by law an absolute defence of it…..”

“It is not needful to point out the awful danger of admitting the principle which has been contended for. Who is to be the judge of this sort of necessity? By what measure is the comparative value of lives to be measured? Is it to be strength, or intellect or what? It is plain that the principle leaves to him who is to profit by it to determine the necessity which will justify him in deliberately taking another’s life to save his own. In this case the weakest, the youngest, the most unresisting, was chosen. Was it more necessary to kill him than one of the grown men? The answer must be ‘No’”

Dudley and Stephens were sentenced to death. In response to public pressure, the Government commuted the sentence to a 6 month term of imprisonment on the grounds that the trial court had withheld the verdict of manslaughter from the jury. Dudley and Stephens were released from prison on 20 May 1885.

John Henry Want later became the Attorney General for New South Wales from 1894 to 1899.

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Defences, Employment Law, LAW FIRM, Negligence

Priestley v Fowler (1837) 3 Mees & Wels 1

ON 23 NOVEMBER 1837, the Court of the Exchequer delivered Priestley v Fowler (1837) 3 Mees & Wels. 1, which introduced the doctrine of the defence of common employment (also known as the fellow servant rule) which protected an employer from being liable for injuries caused by one employee to another in the course of their employment.

The defence has since been abolished by law reform legislation.

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