1. (a) What are the principles applicable in the defence of contributory negligence?

Eloboration

 Where plaintiff has failed to use reasonable care for the safety of himself or his property,
which then gives rise to his damage or injury.
 It serves to reduce the amount of compensation payable to the plaintiff in proportion to his
own contribution.
 It can be that the plaintiff is found to have wholly contributed to his damage, and so his
claim against the defendant fails.

Old Cases

 Butterfiled v Forrester (1809)

> D placed a pole across the road.
> P rode violently, ran over the pole and was overthrown, injured.
> P’s claim failed because accident caused by own negligence.

 Davies v Mann (1842)

> This case created “last opportunity rule” where the last person has the
opportunity to avoid something and thus would be fully liable.
> However, it is quite impossible to determine which party had the last opportunity
to avoid the collision.

Elements

1) P does not have a duty of care towards D but upon himself to act reasonably in avoiding
damage.
2) P failed to take reasonable care
3) The said act or omission caused the injury which must be reasonably foreseeable.

 The gist of contributory negligence is unreasonable behaviour of the plaintiff with regard to
his own safety which results in foreseeable damage to himself.
 Cases
o - Sundram a/l Ramasamy v Arujunan a/l Arumugam & Anor (1991)
> P got into an accident and was lying in the midle of the road when D drive over P’s
leg.
> D tried to use contributory negligence as a defense but it was held that P was not
in a position to get up and run to the side of the road to avoid being run over by a
car so the plea is denied.

o Ang Chai Ha & Ors v Sri Jaya Transport Co (PTM) Bhd (1974)
> A bus collided with a car, the car caught on fire and P died.
> D tried to raise contributory negligence due to P carrying petrol in the boot that
causes the fire.
> It was held that D was negligent and not P because fire is the direct consequence
of the negligence. The damage was not too remote.

> However, it is quite

impossible to
determine which party
had the last
opportunity to avoid
the collision.
> However, it is quite
impossible to
determine which party
had the last
opportunity to avoid
the collision.
> However, it is quite
impossible to
determine which party
had the last
opportunity to avoid
the collision.
> However, it is quite
impossible to
determine which party
had the last
opportunity to avoid
the collision.
> However, it is quite
impossible to
determine which party
had the last
opportunity to avoid
the collision.
> However, it is quite
impossible to
determine which party
had the last
opportunity to avoid
the collision.
> However, it is quite
impossible to
determine which party
had the last
opportunity to avoid
the collision.
(b) What does volenti non fit injuria mean? How different is it from the defence of consent?

 Volenti Non Fit Injuria - P consent or voluntarily assumed the risk of injury.
 Lee Geok Theng v Ngee Tai Hoo & Anor2, the principles applies were explained thus: “VNFI
simply means that to which 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 riskdoes
not amount to consent.”
 Defence of consent is for intentional tort,
 VNFI is for negligence only. In intentional tort, D is given consents to do the act he is going to
do.In negligence, the P gives consent to D so that D won’t be liable if he is negligent

(c) Parsley crossed a rather busy road in Petaling Jaya a few days ago and she misjudged the speed
of one of the two cars travelling on that road. The car could not brake in time and hit Parsley.

Pedestrians in that part of town often cross the same road either at the crossing provided or
anywhere along the road. Drivers are often seen slowing down when driving in that area due to
shoppers crossing at all times.

Would you argue that Parsley has either contributed or has been volens towards her injury?

 VNFI- Fulfilled
 D can escape by VNFI instead of Contributory Negligence

2. Where the defendant’s negligence has put the plaintiff in a dilemma and the plaintiff in the
agony of the moment, tries to save himself by acting in a way that causes even more injury, the
defendant would still be liable to the plaintiff.

(a) Discuss at least one decided case in which this principle has been applied.

 It is called the principle of dilemma.

 In Jones v Boyce, the P reasonably believed that the coach in which he was a passenger was
about to overturn due to the negligent driving by the D. He jumped off the coach and broke
a leg. The coach did not overturn and in aclaim against the D the court held the P was not
contributory negligent as his reactionwas reasonable in the circumstances.
 In Choh Nyee Ngah & Anor v Syarikat Beruntong Sdn Bhd, a lorry driver died when a wheel
of the lorry he was driving came off the steel assembly and an accident occurred on the
highway. It was argued by the D employer that the deceased had presumably jumped out
the lorry, which presumption relied on the fact that there was quite a good distance that lay
between the lorry and the deceased after the accident thereby indication that the deceased
was contributory negligent. The court rejected the D’s defence and stated that even if the
deceased had indeed jumped out the lorry, he would not have been contributory negligent
as that act would have been reasonable in the agony of the moment.
 The principle has in fact been extended in England in Brandon v Osborne, Garrett &Co,
where due to the negligence of the D, broken glass fell from the roof of the D’s shop. The P,
believing her husband was in danger, clutched her husband and tried to bring him to a place
 of safety and in the course of doing so she herself was injured. The D’s plea of contributory
negligence failed as she had acted reasonably in the circumstances. It is uncertain whether
this extension is only lent to spouses, as in this case or whether it may extend to the
protection of strangers as well

(b) Think of your examples and analyse whether the principle may be applicable.

 Accident/ Road accident of motorcycle

(c) Your answers above would depend on your understanding of the standard involved in this
principle - “reasonable apprehension of danger and the plaintiff’s reasonable method of trying to
avoid the danger”.

Would this be the same as the reasonable man test?

In my opinion reasonable man

test in the context of tort is
specifically for determining
whether there is a breach of
duty of care. In the defence,
reasonableness has to do with
the objective test to
determine whether P’s
action is justifiable in the
given
circumstances. They are more
or less the same
 RMT- is for determining whether there is a breach of duty of care.
 In the defence, reasonableness has to do with the objective test to determine whether
P’s action is based on the given circumstances.