Defences On Negligence Tutorial

D.
Defences
1. (a) What are the principles applicable in the defence of contributory negligence?
s.12(1)CLA – where any person suffers damage as the result partly of his own fault and partly of the
fault of any other persons, a claim in respect of the damage shall not be defeated by reason of the
fault of the person suffering the damage, but the damage recoverable in respect thereof shall be
reduced to such extent as the courts think just and equitable having regard to the claimant’s share in
the responsibility for the damage.
ELEMENTS
- the defendant have to plead the contributory negligence to the plaintiff
-The plaintiff has ‘breached’ this duty of care by behaving unreasonably
-Plaintiff’s negligence regarded to his own safety which resulted in foreseeable damage to himself
* plaintiff’s damage must fall under the reasonable behaviour on the part of the plaintiff which
contributed to his injury – case jones v livox quarries , lai yew seong v chan kim sang , wong fook v
abdul shukur bin abdul halim
(b) What does volenti non fit injuria mean? How different is it from the defence of consent?
simply means that to which a man consents cannot be considered an injury. no act is actionable as a
tort at the suit of any person who has expressly or impliedly assented to it. no one can enforce a
right which he has voluntarily waived or abandoned. consent must be real and given without force,
fear or fraud. mere knowledge if a risk does not amount to consent.
-volenti non fit injuria means knowledge of the risk alone does not constitute consent / willingness.
Case of Smith v Baker where the Hol held that volenti was inapplicable. Knowledge of risk is
insufficient the plaintiff would however be volen if the stones were for instances directly placed
above his head with him knowing and consenting to the risk of injury.
- the consent or assumption of risk must be voluntary . imperial chemical industries v Rowley regis
corporation- held that there was no pressure or coercion from the de3fendant to do what he had
done and so the defence of volenti was accepted. Another case : bowater v rowley
(c) Parsley crossed a rather busy road in Petaling Jaya a few days ago and she misjudged the speed of
one of the two cars travelling on that road. The car could not brake in time and hit Parsley.
Pedestrians in that part of town often cross the same road either at the crossing provided or
anywhere along the road. Drivers are often seen slowing down when driving in that area due to
shoppers crossing at all times.
Would you argue that Parsley has either contributed or has been volens towards her injury?
s.12(1)CLA – where any person suffers damage as the result partly of his own fault and partly of the
fault of any other persons, a claim in respect of the damage shall not be defeated by reason of the
fault of the person suffering the damage, but the damage recoverable in respect thereof shall be
reduced to such extent as the courts think just and equitable having regard to the claimant’s share in
the responsibility for the damage.
In this current issue, I personally feel this is more on that Parsley has contributed negligence where
there are three elements.
Element 1 – negligence of the plaintiff of his own safety – toh ming jee v lau yiik ung
Element 2 – negligence of the plaintiff contributed to his injury
Element 3 – defendant must raise this defence - hamizan bin abd hamid v wong kok keong – failure
to do so will be fatal to the defendant’s case even though the plaintiff has in been contributory
negligent. In such a situation if the plaintiff succeeds in proving the negligence of the defendant, he
will be entitled to damages based 100% liability despite the fact that he may have contributory to his
injury. ( defendant have to plead the contributory negligence of the plaintiff )
The plaintiff’s damage must fall under the reasonable behaviour on the part of the plaintiff which
contributed to his injury. Case of jones v livox where the court held that the plaintiff was
contributory negligence, the injury sustained by the plaintiff must belong to the general category of
injury that is foreseeable as arising from the plaintiff’s negligent conduct, for the defence to be
successful. In lai yew seong v chan kim sang where the supreme court in holding the plaintiff 100%
contributory negligent for hitting a car from behind, stated that contributory negligence means the
failure by a person to use reasonable care for the safety of himself or his property so that he
becomes the author of his own wrong.
2. Where the defendant’s negligence has put the plaintiff in a dilemma and the plaintiff in the agony
of the moment, tries to save himself by acting in a way that causes even more injury, the defendant
would still be liable to the plaintiff.
(a) Discuss at least one decided case in which this principle has been applied.
Where the plaintiff made the situation worse, whereby it is the plaintiff’s own act or omission
which , in combination with the defendant’s breach of duty , has brought about his damage then the
issue is that of contributory negligence. However in some instances , the plaintiff’s pen act or
omission may break the chain of causation in which the plaintiff’s conduct or lack of duty of care has
been one of the causes of his damage.- intervening act
- goyinda raju & anor v laws – if the defendant’s negligence places the plaintiff in a dilemma and the
plaintiff in trying to save himself takes the ‘wrong’ course of action, the plaintiff is not necessary
deemed to be contributory negligent and the defendant may still be held to be fully liable for the
ensuing injury or damage
-jones v boyce – the plaintiff reasonably believed that the coach in which he was a passenger was
about to overturn due to the negligent driving by the defendant. he jumped off the coach and broke
a leg. the coach did not overturn and in a claim against the defendant the court held the plaintiff was
not contributory negligent as his reaction was reasonable in the circumstances.
- Brandon v Osborne , garnett & co - the defendant’s plea of contributory neglgience failed as she
has acted reasonably in the circumstances. it is uncertain whether this extension is only lent to
spouses, as in the case or whether it may extend to the protection of strangers as well. a further
question is whether it may be extended to the protection of interests other than personal safety.
(b) Think of your examples and analyse whether the principle may be applicable.
(c) Your answers above would depend on your understanding of the standard involved in this
principle - “ reasonable apprehension of danger and the plaintiff’s reasonable method of trying to
avoid the danger”.
Would this be the same as the reasonable man test?
Slightly different because reasonable means what would a reasonable person would do if he is in a
position of the defendant and for principle of dilemma is different because In this issue the plaintiff
try to prove their damage in over until it causes difficulties for the defendant to prove their rights.

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D.

- the defendant have to plead the contributory negligence to the plaintiff

-The plaintiff has ‘breached’ this duty of care by behaving unreasonably

Element 2 – negligence of the plaintiff contributed to his injury

Would this be the same as the reasonable man test?

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