Defences for tort II PDF

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Defences1. VOLENTI NON FIT INJURIA Volenti non fit injuria can be raised as a defence where it has the meaning that the plaintiff has consented or voluntarily assumed the risk of injury.  Lee Geok Theng v Ngee Tai Hoo & Anor : The principle of this defence was that a man consents cannot be con...

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Defences 1. VOLENTI NON FIT INJURIA  Volenti non fit injuria can be raised as a defence where it has the meaning that the plaintiff has consented or voluntarily assumed the risk of injury.  Lee Geok Theng v Ngee Tai Hoo & Anor : The principle of this defence was that 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 of a risk does not amount to consent.  The defendant must plead for this defence to work are that the facts of which the plaintiff was fully appraised, gave rise to the injury. It also must be proven that the plaintiff understood the risk of the injury and the plaintiff had voluntarily undertook to be responsible for the risk.  Some example of situation where the defence of volenti non fit injuria can be raise such as the plaintiff has consented to the act which cause his injury or he had consented to run the risk of an injury. 

A Volenti non fit injuria is a complete and absolute defence which means that if the defendant successfully raise this defence, he would be totally be excused from the offence. It also must provided that the plaintiff had full knowledge about the risk, had consented on his own free and voluntary will and also that the plaintiff had agreed to take the risk. (a) Full knowledge of the risk - One requirement that must be fulfilled by the defendant are that the plaintiff have the full knowledge of the risk. In the case of Lee Geok Theng v Ngee Tai Soo, a motorcyclist is not entitled to raise the defence of volenti merely on the ground that his pillion knew of the risk and is willing to run the same risk. (b) Consent must be freely and voluntarily given - Besides, the defendant also must prove that the plaintiff was freely and voluntarily given the consent. For example in the case of Bowater v Rowley Regis Corporation, free consent in this situation means that the plaintiff have the option on whether or not to accept the risk. He should not be coerce or restricted and duress for his own option to consent.

(c) Agreed/ assumption of risk - Moreover, the defendant also have to prove that the plaintiff had agreed to do so even he know about the risks. - For example in the case of Smith v Baker, the employer of the construction site are not liable as the workers knew about the risk and therefore, the principle of volunti non fit injuria was not applicable for the defendant. - In the case of Morris v Murray , the principle of volunti non fit injuria raised by the defendant was not applicable where the plaintiff was drunken. - Nettleship v Weston : - Slater v Clay Cross Co Ltd : 2. CONSENT

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Consent would be on the willingness of the plaintiff in amounting the torts committed upon him. Consent can be made expressly or impliedly. Freeman v Home Office : In this case, the plaintiff had consented on the act and therefore the defence of consent was applicable. On the conduct of the plaintiff, the defence of volenti non fit injuria was applicable as well. Consent must be given only after the plaintiff has been fully informed of all the relevant risks. Chatterson v Gerson : If a doctor failed to inform the patients on the nature of the proposed operation, the patient are not be able to consent about it. However, if the patient was in the state of unconsciousness, the doctor can claim for the defence of necessity. Mallette v Schulman : A mentally competent adult may choose whether or not to receive medical treatment.

3. CAUSATION: INTERVENING ACTS  Intervening act are usually raised by the defence council to prove their innocence. The defence council will argue that the chain of causation is broken due to the intervening act and therefore, they are not liable of the offence. If there was an intervening act, the chain of causation would be broken and therefore, the defendant cannot be held liable.  There are three types of intervening act which could cause the chain of causation to be broken. (i) Intervening Natural Event - An intervening act where it happened naturally beyond the human control could break the chain of causation. - For example in the case of Carslogie Steamship Co Ltd v Royal Norwegian Government, the plaintiff’s ship collided with the defendant’s ship and the plaintiff sue the defendant for the damages. However, it was found that the collision was caused by a bad weather. Therefore, the intervening act held the defendant not liable. (ii) Intervening Act of a third party - If the defendant’s breach of duty followed by an act of a third party which also lead to the plaintiff’s damage, the court may rule out the possibility that the defendant would be liable. If the act of the third party is held to be a novus actus interveniens, the defendant will not be held liable for any damage occurring after the act. - For example in the case of Scott v Shepherd , the defendant threw a lighted squib at the market and it his the first person. That person then pick it up and threw it away but it reached the second person, the plaintiff and the plaintiff got injured. The court held that the act of the third party who throw the lighted squib away as part of his self defence and he had no intention to hurt the plaintiff. And therefore, the defendant are still held liable as it was foreseeable as he threw the lighted squib at the open market fill with people. - In the case of Lamb v London Borough of Camden, the defendant broke a main water near the plaintiff’s house and it caused squatters at the house. The house

then subsequently inhabited by squatters and the squatters damaged the house. The plaintiff sue the defendant for the damage of the house caused by the squatters. The court held that the defendant was liable as the squatters are not responsible. (iii) Intervening act by the plaintiff himself - This intervening act is where the plaintiff’s act are related to the defendant’s breach of duty and causes a damage. This can also be known as contributory negligence. Therefore, the plaintiff’s claim may be remote and it could reduced the plaintiff’s claim. - In the case of McKew v Holland & Hannen & Cubitts (Scotland) Ltd , the issue arise was whether the respondents were liable for the injuries caused by the second accident? The court held that the act of the appellant in attempting to descend a steep staircase without a handrail in the normal manner and without adult assistance when his leg had previously given way on occasions was unreasonable; accordingly the chain of causation was broken and the respondents were not liable in damages for his second injury. - In the case of Wieland v Cyril, the plaintiff suffered an injury which caused by the defendants’ negligence. After attending the hospital she felt shaken and the movement of her head was constricted by a collar which had been fitted to her neck. As the result of it, she cannot use her bi-focal spectacles properly and fell at the stairs. The court held that the injury and damage suffered on the fallen at the stairs were a contributory negligence of the defendant from the first fall and therefore, the defendant is liable as the chain of causation was never broken. 4. CONTRIBUTORY NEGLIGENCE  A contributory negligence can be raise by the defendant if he can shows that the plaintiff also had the breached of his own care of safety which lead to the injuries or damages. History of contributory negligence 

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A contributory negligence is a complete defence that can be raised by the defendant for negligence. In the case of Butterfield v Forrester, the plaintiff would not have met with the accident, if he had exercised ordinary care and the plaintiff’s claim failed as the accident was said to have been caused by his own negligence. The defendant would not be held liable. This rule gives hardship in cases where even though both the defendant and the plaintiff were negligent, the plaintiff’s injuries were mainly caused by the defendant’s negligence.

Development of the law 

Can be seen in the case of Davies v Mann, the case use the last opportunity rule where the last person to be negligent and thus the person who had the last opportunity to avoid the accident would be fully liable. However, this rule give rise on hardship to determine the liability in accident cases.

The current law

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In the current law, the rule that was followed was the Law Reform (Contributory Negligence) Act 1945 where Section 1(1) provided that if a person suffers injuries due to his own fault as well as others, his claim will not fail, but the amount of compensation he receives will be reduced to an amount that is considered just and reasonable, taking into consideration his contribution to the final damage. In Malaysia, the statute that was followed on this issue is the Civil Law Act 1956 where Section 12(1) stated that any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the Courts thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.

Elements of Contributory Negligence 

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However, there are a few elements that must be fulfilled in successfully establish the defence of contributory negligence. 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; and the plaintiff has ‘breached’ this duty of care by behaving unreasonably; and the act or omission must be the cause of his injury, which must be of a type reasonably foreseeable from his act or omission. In the case of Froom v Butcher, the plaintiff was not wearing any seatbelt when his car collided with the defendant’s car. The court held that the damages should be reduced by 20% as a prudent man would wear a seat belt unless there was exceptional circumstances. The defendant was still liable but a lesser damages. In Wong Fook & Anor v Abdul Shukur bin Abdul Hakim, the reduction of liability on a defendant driver where the plaintiff does not wear seat belt will be considered if the plaintiff is the driver of the other vehicle. However, if the plaintiff is a mere passenger thus he is entitled to be fully compensated. In Fitzgerald v Lane, since the plaintiff had contributed to contributory negligence by 50%, the remaining 50% was divided between the other two defendants. In Sundram a/l Ramasamy v Arjunan a/l Arumugam & Anor, the defendant failed to prove that the act of the plaintiff lying in the middle of the road caused or contributed to contributory negligence.

Contributory negligence of Children 

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For the contributory negligence of children, the element that the court would look into is the age of the children. In Gough v Thorne, Lord Denning stated that a young kid cannot be guilty of contributory negligence. An older child may be; but it depends on the circumstances. A judge should only find a child guilty of contributory negligence if he or she is of such an age as reasonably to be expected to take precautions for his or her own safety. He or she is not to be found guilty unless he or she is blameworthy. Therefore, the defence of contributory negligence on kids vary. In Mohamad Safuan bin Wasidin & Anor v Mohd Ridhuan bin Ahmad (an infant),

5. MISTAKE  The defence of mistake is a poor defence in tort.  The defence of mistake, whether of law or of fact is said to be a poor defence and can only be invoked in certain limited circumstances.  However in intentional torts, mistake may not be invoked.  Consolidated Co v Curtis : Auctioneer was held liable in conversion to the plaintiff under a mistaken belief the goods belonged to a third party. The defence of mistake was not acceptable despite the honest and reasonable belief on the part of the defendant.  The defence of mistake only acceptable in certain circumstance such as in Section 23 of the Criminal Procedure Code where a police officer may raise the defence of mistake in certain circumstances.

6. INEVITABLE ACCIDENT  This defence requires the defendant to prove the cause of the accident and the result of the accident is inevitable.  Defence lies on the defendant.  Burden of proof lies on the plaintiff.  Fardon v Harcourt-Rivington : People must guard against reasonable probabilities and not fantastic probabilities.  Che Jah binte Mohamed Ariff v CC Scott : If the defendant is not aware of a latent defect which is not discoverable by reasonable examination, the defendant may invoke inevitable accident.

7. ACT OF GOD  If the escape was caused purely by the natural cause, the defendant can escape the liability provided if he could not foreseen the force of the nature. There must no human intervention and be purely natural circumstances.  Nichols v Marsland : In this case, the defendant diverted a natural stream on his land in order to create ornamental lake. There was an exceptional heavy rain which caused the artificial lake to be flooded. It also flooded and damaged the adjoining land which is the plaintiff’s land. The defendant raised the defence of act of God. The court held that there was no anticipation, no negligence in construction or maintenance. Therefore, the defence succeed.  Greenock Corporation v Caledonian Railway Co : The defendant constructed a paddling pool for children in the bed of the stream. An extraordinary rainfall caused the defendant’s pool to flood and caused damage to plaintiff’s property. The court held that the defence of act of God is not available to the defendant because of deficient substitute.  Hoon Wee Thim v Pacific Tin Consolidated Corporation : Heavy rainfall are considered to be a natural use. Therefore, the defence of act of god are applicable.

8. Private Defence 9. Necessity ...