TORT PRESENTATION

TORT PRESENTATIONDEFENCESQUESTION 1WHAT ARE THE PRINCIPLES APPLICABLE IN THE DEFENCE OF CONTRIBUTORY NEGLIGENCE?(a)Contributory negligenceis generally adefenceto a claim based on negligence, an action in tort. This principle is relevant to the determination of liability and is applicable whenplaintiffs/ claimantshave, through their own negligence, contributed to the harm they suffered. It can also be applied by the court in a tort matter irrespective of whether it was pleaded as a defence.

For example, apedestriancrosses a road negligently and is hit by a driver who was driving negligently. Since the pedestrian has also contributed to the accident, they may be barred from complete and full recovery of damages from the driver because the accident was less likely to occur if it weren't for their failure to keep a proper lookout. Another example of contributory negligence is where a plaintiff actively disregards warnings or fails to take reasonable steps for his or her safety, then assumes a certain level of risk in a given activity; such as diving in shallow water without checking the depth first.

The plaintiff is not required to have a duty of care to the defendant. The duty of care is upon himself to act reasonably so as to avoid damage to himself.The burden of proof is on the defendant to demonstrate:1. The claimant failed to take proper care in the circumstancesfor their own safety2. The failure to take care was a contributory cause of the damage sufferedJONES V LIVOX QUARRIES LTDThe claimant worked in the defendants quarry. One lunch break he hitched a lift back to the canteen by standing on the tow bar of a traxcavator. The driver of the traxcavator was unaware that the claimant had jumped on the back and it was against company rules to stand on the back of the traxcavators. Unfortunately a dumper truck, driven recklessly by another employee, crashed into the back of the traxcavator crushing the claimants legs. Consequently the claimant had to have his legs amputated.It was held that the defendant was liable but the claimant was held to be 1/5 to blame under the Law Reform (Contributory Negligence) Act 1945. He had acted against orders and exposed himself to danger.Lord Denning MR:Just as actionable negligence requires the foreseeability of harm to others, so contributory negligence requires the foreseeability of harm to oneself. A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might be hurt himself: and in his reckonings he must take into account the possibility of others being careless.LAI YEW SEONG V CHAN KIM SANGThe 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.WHAT DOES VOLENTI NON FIT INJURIA MEAN? HOW DIFFERENT IS IT FROM THE DEFENSE OF CONSENT?(b)A direct translation of the Latin phrasevolenti non fit injuriais,'to one who volunteers, no harm is done'.Where the defence ofvolentiapplies it operates as a complete defence absolving the Defendant of all liability.

LEE GEOK THENG V NGEE TAI HOO & ANORThe plaintiff was a pillion rider of a motorcycle which was involved in an accident. The plaintiff claimed for general and special damages against the first and second defendants, who were the registered owner and rider respectively of the motorcycle. The defendants raised the defence of volenti non fit injuria. The sessions court judge dismissed the plaintiff's claim. The plaintiff appealed.LEE GEOK THENG V NGEE TAI HOO & ANORThe learned judge stated that when raising this defence, the defense must pleadThat the facts of which the plaintiff was fully was appraised, gave rise to the injuryThe plaintiff understood the risk of injuryThat the plaintiff voluntarily undertook to be responsible for the risk1. VoluntaryA man cannot be said to be truly willing unless he is in a position to choose freely, and freedom of choice predicates, not only full knowledge of the circumstances on which the exercise of choice is conditioned, so that he may be able to choose wisely, but the absence from his mind of any feeling of constraint so that nothing shall interfere with the freedom of his will. (Scott LJ in Bowater v Rowley Regis CorpBOWATER V ROWLEY REGIS CORPORATION

The plaintiff, a carter employed to collect road sweepings by a municipal corporation, was ordered by his foreman to take out a horse which, to the knowledge of both of them, had run away on at least twopreviousoccasionswhendrivenbyafellowemployee.Thecarterprotested,buttheforemansaidthatitwasanorderoftheborough surveyor. Some weeks later, the horse ran away and the plaintiff was thrown from his cart and suffered personal injuries. In an action against the corporation by the plaintiff, alleging that they had failed in their duty to provide him with a horse which was safe and suitable for the workwhich he had to perform.2. Consent or assumption of riskThe agreement may be express or implied. An example of an express agreement would be where there exists a contractual term or notice. However, this would be subject to the controls of s.2 of the Unfair Contract Terms Act 1977. An implied agreement may exist where the Claimant's action in the circumstances demonstrates a willingness to accept not only the physical risks but also the legal risks.NETTLESHIP V WESTONThe defendant was a learner driver. She was taking lessons from a friend. The friend checked that the defendant's insurance covered her for passengers before agreeing to go out with her. On one of the lessons Mrs Weston turned a bend, Mr Nettleship told her to straighten the wheel but Mrs Weston panicked and failed to straighten the wheel. She approached the pavement and Mr Nettleship grabbed the handbrake and tried to straighten the wheel but it was too late. She mounted the pavement and hit a lamp post. Mr Nettleship fractured his knee. The defendant argued that the standard of care should be lowered for learner drivers and she also raised the defence ofvolenti non fit injuriain that in agreeing to get in the car knowing she was a learner, he had voluntarily accepted the risk.A learner driver is expected to meet the same standard as a reasonable qualified competent driver.Volentidid not apply as he had checked the insurance cover which demonstrated he did not waive any rights to compensation.

3. KnowledgeThe Claimant must have knowledge of the full nature and extent of the risk that they ran:WOOLDRIDGE V SUMNERThe claimant was a photographer at a horse show. He was situated within the ring of the horse show and not behind the barriers where the spectators were housed. He was on a bench with a Miss Smallwood who was a director of the company which employed the Claimant. He had been taking little interest in the proceedings and was not experienced in regard to horses. During the competition, one of the horses, Work of Art owned by the Defendant, came galloping at great speed towards the bench where they were sitting. The Claimant took fright at the approach of the galloping horse and attempted unsuccessfully to pull Miss Smallwood off the bench. He stepped or fell back into the course of the horse which passed three or few feet behind the bench, and was knocked down. The Claimant brought an action in negligence arguing the rider had lost control of the horse and was going too fast. The defendant raised the defence ofvolenti non fit injuria.There was no breach of duty so the Claimant's action failed. On the issue ofvolenti non fit injuriait was held that consent to the risk of injury was insufficient. There must be consent to the breach of duty in full knowledge of the nature and extent of the risk.DifferenceConsentWillingness of a plaintiff for what would otherwise amount to tort, to be committed upon him or his propertyThis is more relevant in intentional tort. Consent are usually explicit as in agreement.Ex. A person consents to medical proceduresVolenti non fit injuriaWillingness on the part of the plaintiff to run the risk of injury as a result of the defendants conductThis is more relevant in negligence cases. Consent are usually implied through conduct.Ex. A boxer consents to be hit when he enters the rings