Defences to negligence

Volenti non fit injuria

3 requirements:
1. Consent or
assumption of
risk

2. Consent must
be voluntary

3. Full
knowledge

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.

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.

Lee geok Theng v

Ngee Tai Hoo

It must be shown
that the pillion
accepted for
himself the risk of

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.
1. mere
knowledge
insufficient.
Test is

subjective.
2. If P should
know about
the risk, it is
not volenti
but
contributorily
negligent.
e.g passenger case

injury arising from

riders lack of skill.

Taw Too Sang v

Chew Chin Sai

Ashton v Turner

Contributory
negligence

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

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

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

CLA 12 (1)

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.

omission
must be the
cause of
injury(reason
ably
foreseeable)
Principle of dilemma

Contributory
negligence in
children- age

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

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.

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.
Defence failed

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

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.