Defences to negligence

Volenti non fit injuria

P has consented or voluntarily assumed the risk of injury

When raising the defend, must plead:

1. That the facts of which the P was fully appraised, gave rise to the injury.

2. P understood the risk of injury

3. P voluntarily undertook to be responsible for the risk.

3 requirements:

1. Consent or assumption of risk

P has an agreement with the D that the latter will not be liable if he is negligent. Either express or implied consent.

Slater v Clay Cross co Ltd

Even though he P could be said to have voluntarily assumed the risk of danger, she could not have been said to have agreed to the risk of negligence by the driver.

2. Consent must be voluntary

If he is in a position where he has a choice and have full knowledge of the circumstances, so that he may make a reasonable choice.

3. Full knowledge

1. mere knowledge insufficient. Test is subjective.

2. If P should know about the risk, it is not volenti but contributorily negligent.

Lee geok Theng v Ngee Tai Hoo

It must be shown that the pillion accepted for himself the risk of injury arising from riders lack of skill.

e.g passenger case

Taw Too Sang v Chew Chin Sai

Held volenti not applicable as knowledge on the part of P that he might be involved in a fight with the D did not necessarily mean that he had consented in the law

Ashton v Turner

Criminal did not owe a duty of care towards another criminal.

Contributory negligence

P has failed to use reasonable care for the safety of himself or property, which give rise to his damage or injury. Reduce amount of compensation.

CLA 12 (1)

Elements:

1. Duty to himself to act reasonably so as to avoid damage to himself.

2. P failed to take reasonable care of himself by behaving unreasonably.

3. Act or omission must be the cause of injury(reasonably foreseeable)

Unreasonable behaviour of P with regard to his own safety which results in foreseeable damage to himself.

Jones v Livox Qaurries- P disobeyed emplyers instruction by riding on the back of its traxcavator.

P was contributorily negligent, injury was reasonably foreseeable as a consequence of Ps behaviour.

Principle of dilemma

Ds negligence places P in a dilemma and P, in trying to save himself takes the wrong course of action, the P is not necessarily deemed to be contributorily negligent. D may be still fully liable.

P must prove he had acted as a reasonable man would have done in the same circumstances.

Jones v Boyce- P reasonably believe that the coach was about to turn due to negligent driving by D. Jumped off the coach and broke leg. But coach did not overturn.

P was not contributorily negligent as his reaction was reasonable in the circumstances.

Contributory negligence in children- age

Test: would an ordinary child who is the same age as the P would do more than what the P has done.

Yachuk v Oliver Blais- 9 yr old boy buy gasoline for his mother. Play with it and badly burnt.

FD wholly liable, plea for CN failed on the basis that P neither knew nor could be expected to know the danger involved. If P lied to D about whom he bought for, the plea may succeed.

Mohd Safuan v Mohd Ridhuan- 4 yrs old knocked down by motorcycle by D postman. Suddenly dashed out from the road.

Defence failed

Exclusion clause

Chin Hooi Nan v Comprehensive Auto Restoration

Exemption clause did not exclude D from burden of proving that the damage to the car was not due to their negligence and misconduct. They must show that they had show due diligence and care in handling the car.