DEFENCES IN NEGLIGENCE

Causation is considered when determining whether or not the claimant has accepted a risk of harm or voluntarily taken it or indeed has otherwise contributed to his own damage by taking insufficient care for his own safety.

If the claimant has contributed so much to the damage suffered as to be entirely responsible, then this will probably result in a successful plea of Novus actus interveniens.

Therefore, the following defences are available for the defendant in negligence.

• CONTRIBUTORY NEGLIGENCE

This is where the claimant contributes to his/her ow injury, in other words, it is a failure by the claimant to take reasonable care for his/her own safety thus contributing to the damage which he/she complains about. It also applies to situations where the claimant’s behavior does not cause the accident itself but contributes to the amount of damage done. Thus in Butterfield v Forrester¹, it was held that if the defendant could establish that the plaintiff was guilty of failure to take care of his/her own safety, then the defendant is not to be held liable.

In Fitzgerald v Lane & another², the plaintiff walked briskly onto a pelican crossing when the lights were showing green for traffic and red for pedestrians. When he reached the center of the road, he was struck by the 1^st defendant’s car and was thrown onto the other side of road, where he was struck by a car driven in the opposite direction by the 2^nd defendant. The plaintiff sustained multiple injuries and in particular, injury to the neck which resulted into partial tetraplegia. He brought an action for negligence against both defendants claiming damages for personal injuries. The judge found that both defendants were responsible for the plaintiff’s tetraplegia and that the plaintiff had been contributorily negligent for his own injuries.

Where the claimant’s harm is brought about partly by the defendant’s negligence and partly by the claimant’s own fault, the question is on causation. In Jones v Livox Quarries Ltd³, the claimant hitched a lift by standing on the tow bar of a trax cavator whose driver was unaware, and this was against company rules to stand on the back of trax cavators. Unfortunately, a dumper truck, driven carelessly by another employee, crushed into the back of the trax cavator crushing the claimant’s legs, consequently, he had to have his legs amputated.

Lord Denning stated that, “it can now safely be asserted that the doctrine of last opportunity is absolute and also that contributory negligence does not depend on the existence of a duty. But the troublesome question of causation still remains to be solved.”

Therefore, for a successful claim to stand under contributory negligence, the defendant must prove the following;

1. Failure on the part of the claimant to take reasonable care for his own safety.
2. That negligence by the claimant to take reasonable care was a cause of the damage suffered.

A person is guilty of contributory negligence if he ought reasonably to have foreseen that if he did not act as a reasonable man, he might hurt himself and he must take into account the possibility of others being careless. Therefore, a claimant is under duty to take care of oneself. The appropriate standard of care is the same as that generally applied in negligence and is basically objective.

In Froom v Butcher⁴, a car accident was caused by the defendant’s negligence but the claimant was not wearing a seat belt as a result of which he suffered worse injuries. The court applied an objective standard of care. A prudent person would have worn a seat belt, so damages were reduced by 20%.

In conclusion, the defence of contributory negligence can be used as a plea to reduce damages.

• VOLENTI NON FIT INJURIA (Voluntary assumption of risk)

Where a plaintiff voluntarily assumes the risk, this is a complete defence to a claim of negligence. Where a defendant can show that the plaintiff voluntarily assumed the risks, the defendant cannot be held liable. In Khimji v Tanga Mombasa Transport Co. Ltd⁵, the plaintiffs were personal representatives of a deceased who met his death while travelling as a passenger in the defendant’s bus. The bus reached a place where the road was flooded and it was risky to cross. The driver was reluctant to continue the journey but some of the passengers including the deceased insisted that the journey should be continued. The driver eventually yielded and continued with some of the passengers including the deceased and the bus drowned together with all those aboard it. It was held that the plaintiff’s action against the defendants couldn’t be maintained because the deceased knew the risk involved and assumed it voluntarily and so the defence could stand.

In order to show volenti, the defendant must prove that;

1. The plaintiff knew of the facts constituting danger (knew the risk)
2. Fully appreciated the danger inherent in those facts
3. Fully accepted the risk of injury

The claimant must have been aware of the risk of injury that materialized, for one cannot consent to a risk of injury if one does not know that it exists. The fact that the reasonable person in the claimant’s position would have known about the risk is insufficient to satisfy this requirement.

In Neason v Acheson⁶, a woman had been bitten by her neighbor’s dog after she placed her face close to its jaws as she had befriended the animal over the course of several months prior to the incident. She had no reason to expect that it would bite her. The defendant argued that the claimant had voluntarily assumed the risk of injury. The trial judge rejected it and held that as the claimant did not foresee any risk of injury, the defence was inapplicable.

Also in American Cigarette Co. Ltd⁷, the plaintiff was a smoker who contracted lung cancer and sued in negligence for the defendant’s failure to warm him of the risk of contracting lung cancer. The defendant brought a defence of volenti, stating that the plaintiff knew or ought to have known the risk of smoking. The plaintiff applied to strike out the defence. It was held that constructive knowledge was not acceptable to constitute a defence of volenti. It was held that the plaintiff’s knowledge must have been express and that the actual rather than constructive knowledge was required.

Another aspect is that the claimant must have agreed to run the risk. Thus in Bowater v Rowley Regis Corporation⁸, the claimant who was employed by the defendants was ordered to take out a horse which was known to have a tendency of running away. The claimant expressed his unhappiness at the time of the order. a few weeks later, he was injured when the horse ran off and he was thrown off the cart. The court rejected the defence of volenti.

Lord Scott LJ stated that, “a 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 or constraint so that nothing shall interfere with the freedom of his will.”

In conclusion, this defence is basically used to deny that a duty of care existed and is a complete defence but can be used as a plea to reduce damages.

• ILLEGALITY

This is referred tom as a defence, but is usually used to deny that a duty of care existed.

In Henwood v Municipal Transways Trust⁹, the plaintiff was a mother of the deceased who was killed when leaning out at the window to vomit. The tram carriages were too wide and went very close to the stauchons. The deceased was killed when he hit his head on one whilst vomiting. The defendant was aware of previous serious accidents and had not warned people, except to put up a sign to say that, “leaning out of tram windows is prohibited.” The trust argued that the son had committed an illegal act and thus they weren’t liable.

On appeal, MC Tiernan and Dixon J held that, “one must look at the purpose of the law which the plaintiff has contravened. If it is to disentitle the plaintiff, then the defendant is absolved of liability, if not, the defendant is still liable.”

• STATUTORY AUTHORITY

Where a statute authorizes a particular act, a person who does it is not liable in tort. The authorization of an act is also an authorization of its natural consequences. But the person must do so in good faith and within the scope of the powers conferred by the statute or else he will not be protected.

In Vaughan v Taff Vale Railway Co.¹⁰, a railway company was authorized by statute to run a railway which traversed the plaintiff’s land, sparks from the engine set fire to the plaintiff’s woods and it was held that the railway company was not liable. It had taken all known care to prevent emission of sparks and that the running of locomotives was statutorily authorized.

1 (1809) 11 East. 60

2 (1987) 2 All ER 454

3 [1952] 2 QB 608

4 [1976] QB 286

5 (1962)

6 [2008] N1 QB 12 (QBD)

7 (N0. 3) (1987) VR 289

8 [1944] KB 476

9 (1938) 60 CLR 438

10 (1860) 157 ER 1351