The Law of Torts

Law of Negligence

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❖ What you are expected to know.

• The meaning of ‘tort’.

• The tort of negligence – the elements necessary to

prove the tort of negligence.

• The defences available to the defendant viz. volenti

non fit injuria & contributory negligence

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 Definition of Tort
• The law of tort is primarily concerned with providing
a remedy to persons who have been harmed by the
conduct of others.
• The word ‘tort’ originates from the Latin word,
‘tortus’ which means ‘twisted’ or ‘crooked’ and this
signifies ‘wrong’. It denotes civil wrongs as distinct
from criminal wrongs.
• It may consist of either a wrongful act or omission
which is not authorised by law.
• According to Prof. Winfield, ‘tortious liability arises
from the breach of a duty primarily fixed by law; such
duty is towards persons generally, and its breach is
redressible by an action for unliquidated damages’.
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 Features of Tort

⬧ There must be a wrongful or unauthorised act or

omission; and

⬧ The wrongful or unauthorised act or omission

affects the interest or rights of others; and

⬧ The injured party or victim of the wrongful act or

omission has the right to claim damages.

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 Different types of Torts

• Tort of negligence
• Defamation
• Nuisance
• Trespass
• Economic torts

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 Tort distinguished from Contracts
1. Creation of duties
• Tort - duties are fixed by law
• Contracts – obligations are created by the parties
to the contract. They impose terms and conditions
themselves by their agreement.
2. Purpose of an award of damages
• Tort protects the status quo. It aims to restore the
plaintiff to the position he would have been in had
the tort not been committed i.e. to his original
position.
• In contract, damages aim at placing the plaintiff in
the position he would have been in had the
contract been performed. The defendant is liable
for not fulfilling the plaintiff’s expectation of
benefit from the contract. 6
 Tort of Negligence

• Definition: the breach of a legal duty to take care

which results in damage, undesired by the
defendant, to the plaintiff.

• 3 elements:-
1. that the defendant owes the plaintiff a duty of
care.
2. that the defendant had breached the duty of
care i.e. he had been negligent.
3. that the defendant’s action had caused the
plaintiff harm and the harm is not too remote a
consequence of the defendant’s action.
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➢ DUTY OF CARE

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 DUTY OF CARE
• There is a duty to exercise care while performing a
particular activity.
• This duty is imposed by law – a legal duty.
• Example: Bill is driving his car in a busy town. He
knows that there are other road users e.g. motorists,
motorcyclists, pedestrians and there are even shops
and houses situated adjacent to the road. Bill knows
that if he does not drive carefully and if he fails to
keep a proper lookout while driving, he may cause
injury, harm and loss to the other road users and
even cause damage to property belonging to others
abutting the highway. Bill owes all of them a duty
to take reasonable care not to cause them personal
injury or damage to their property. 9
How to determine when a duty of care will arise?
• The ‘neighbour’ principle as stated in the case of
Donoghue v. Stevenson is used.

• A duty is owed to persons who are so closely and

directly affected by the defendant’s act that he ought
reasonably to have them in contemplation as being
so affected when he is directing his mind to the acts
or omissions which are called in question.

• This means that the defendant has a duty to ensure

that whatever he does or omits to do will not harm
the plaintiff or cause the plaintiff to suffer injury,
harm or loss (he owes the plaintiff a duty of care).

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Donoghue v. Stevenson [1932]
Kay Donoghue and her friend went to the Wellmeadow
Café in Paisley, Glasgow which was owned by Francis
Minghella. The friend ordered and paid for a pear and a
bottle of ginger beer. The café owner brought their order
and poured part of a bottle of ginger beer into a tumbler
containing ice cream. The ginger beer bottle was opague.
Kay drank some of the contents and when she
replenished the tumbler, along with the ginger beer
plopped out of the bottle into the tumbler decomposed
remains of a snail. Kay suffered emotional distress and
gastroenteritis and was ill as a result.

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Kay sued the manufacturer, the defendant. She claimed
that D had a duty in the course of his business to ensure
that all empty bottles were carefully inspected and
cleaned before they were filled with ginger beer. Kay
alleged that David Stevenson, the manufacturer owed
her a duty to take reasonable care that the ginger beer he
manufactured, bottled, labelled and sealed, and invited
her to buy, did not contain substances likely to cause her
injury. Kay Donoghue claimed damages of £500.

The issue in this case was whether D owed such a duty

to P. Lord Atkins formulated the “neighbour” principle
to determine the existence of such a duty i.e. whether P
was the neighbour of D.
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• “The rule that you are to love your neighbour
becomes in law, you must not injure your neighbour;
and the lawyer’s question, Who is my neighbour?
receives a restricted reply. You must take reasonable
care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your
neighbour. Who, then, in law is my neighbour? The
answer seems to be persons who are so closely and
directly affected by my act that I ought to have them
in contemplation as being so affected when I am
directing my mind to the acts or omissions which are
called in question.” per Lord Atkin.

• The test is reasonable foresight of harm to persons

whom it is foreseeable are likely to be harmed by
one’s carelessness. 13
• The House of Lords has revised Lord Atkin’s
neighbour principle in Caparo Industries Plc v.
Dickman [1990] 1 All ER 568. Presently, it is
essential for the establishment of duty of care to
show that in addition to the foreseeability of the
harm or damage caused, there exists a relationship
of proximity or neighbourhood between the party
owing the duty and the party to whom it is owed
and that the situation should be one in which the
court considers it fair, just and reasonable that the
law should impose a duty of a given scope on the
one party for the benefit of the other party.
• This three-fold test was applied by the Federal
Court in Majlis Perbandaran Ampang Jaya v.
Steven Phoa Cheng Loon & Ors [2006] 2 MLJ 389
and in The Co-operative Central Bank Ltd. v KGV
& Associates Sdn Bhd [2008] 2 MLJ 233.

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 Examples of established categories of
negligence

• Manufacturer and consumer – Donoghue v.

Stevenson
• Road users – Nettleship v. Weston [1971] The
Court of Appeal held that the standard of care
required of a learner driver was the same as other
experienced drivers. The defendant’s lack of
experience was irrelevant.
• Employer and employee – Wilson & Clyde Coal v.
English
• Doctor and patient – Rogers v. Whitaker; Foo Fio
Na v. Dr. Soo Fook Mun & Anor. [2007]
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➢ BREACH OF DUTY

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 BREACH OF DUTY

• There are 2 factors which need to be considered in

proving that a breach of duty of care had occurred:-

1. a decision has to be made as to what standard

of care ought to have been exercised (i.e. how the
defendant ought to have behaved); and
2. it must be determined whether the defendant’s
behaviour/conduct fell below the required
standard.

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 STANDARD OF CARE

• The standard of care that is required is not that of

the defendant himself but the standard of a
reasonable man.

• This was laid down by Alderson B in Blyth v.

Birmingham Waterworks Co. [1856]
• ‘Negligence is the omission to do something which
a reasonable man, guided upon those
considerations which ordinarily regulate the
conduct of human affairs, would do, or doing
something which a prudent and reasonable man
would not do … .’
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 Who is this reasonable man?

• A defendant is said to be negligent if he fails to

exercise the degree of care that a reasonable man
would have taken in the situation the defendant was
in. And who is this reasonable man? He is the ‘man
on the Clapham omnibus’.
• Ordinary man, the average man who is prudent
(careful) and intelligent but is not expected to be
obsessively cautious or an infallible genius…
• The standard of care: What would a reasonable
person do or would not do in the situation?
• Would a reasonable man have acted as the
defendant had done when faced with a similar
situation?
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 Defendants with special skills
• Defendants with special skills will be judged
according to the standard of a reasonably competent
person possessing similar skills.
• Professionals will be judged on the standard to be
expected from a reasonably competent professional
practicing and specialising in the same field as the
defendant. ‘A man or woman who practices a
profession is bound to exercise the care and skill of
an ordinary competent practitioner in that
profession – be it the profession of an accountant, a
banker, a doctor, a solicitor or otherwise’ per
Barabah LP in Swamy v. Mathews & Anor [1968] 1
MLJ 138 at pp 139 & 140 (Federal Court).
• In Nettleship v. Weston, a learner driver was judged
according to the standard of a reasonably competent
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driver.
• In deciding the duty and standard of care of a medical
practitioner in providing advice to a patient on the
inherent and material risks of the proposed treatment,
the Federal Court in Foo Fio Na v. Dr. Soo Fook
Mun & Anor. [2007] 1 MLJ 593, held that the
medical practitioner is duty bound by law to inform
his patient who is capable of understanding and
appreciating such information of the risks involved in
any proposed treatment so as to enable the patient to
make an election of whether to proceed with the
proposed treatment with knowledge of the risks
involved or decline to be subjected to such treatment.
• Followed Rogers v. Whitaker [1992] 175 CLR 479,
High Court of Australia.
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➢ CAUSATION

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 CAUSATION
• The Plaintiff must then go on to prove that it was the
defendant’s breach of duty that caused his loss
(causation).
• In proving causation, the ‘but for’ test laid down in
Barnett v. Chelsea & Kensington Hospital
Management Committee [1969] 1 QB 428 is used.

• The plaintiff will not have suffered the loss or injury

but for the defendant’s breach of duty i.e. had it not
been for the negligence of the defendant, the plaintiff
would not have suffered any harm.

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Barnett v. Chelsea & Kensington Hospital
Management Committee.
Three security guards went to the defendant’s
hospital when they started vomiting after drinking
some tea in the early morning. One of the security
guards was P’s husband. The nurse on duty
telephoned the doctor who instructed the nurse to tell
the three men to go home and call their own doctors.
Later that afternoon, P’s husband died of arsenic
poisoning, and P sued D’s hospital for negligence for
its failure to treat her husband. The court held that the
doctor had breached his duty of care for not treating
the patient. It was however found that the doctor’s
breach did not cause P’s husband’s death as evidence
showed that the patient would still have died even if
the doctor had treated him. The hospital was
accordingly held not liable. 24
 REMOTENESS
• Reasonable foreseeability test: The Wagon Mound
(No. 1)
• Whether the damage suffered by the plaintiff is
reasonably foreseeable in the circumstances?
• The type of damage or loss caused must be
reasonably foreseeable.
• Once it is established that the type of harm suffered
by the plaintiff is reasonably foreseeable, the
defendant will be liable even if the extent of the
harm or loss suffered is greater than what is
reasonably foreseeable:
Hughes v. Lord Advocate [1963] AC 837
• Example: negligent driving which causes injury to a
superstar.
• See also: Jaswant Singh v. Central Electricity
Board & Anor. [1967] 1 MLJ 272 25
 Pure Economic Loss

• In law, there are 2 types of economic loss:

➢ Consequential Economic Loss i.e. economic loss
arising out of physical injury or damage to property
➢ ‘Pure’ Economic Loss – the sole loss sustained,
unconnected with physical damage

• The difference between the 2 is highlighted in the

case of Spartan Steel & Alloys Ltd v. Martin & Co.
(Contractors) Ltd. [1973] 1 QB 27

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❖ Here, P manufactured steel alloys 24 hours a day.
This required continuous power. D’s employees
damaged a power cable, which resulted in a lack of
power for 14 hours. There was a danger of damage to
the furnace, so this had to be shut down and the
products in the process of manufacture removed,
thereby reducing their value. P also suffered loss of
profits. It was held that D were liable for physical
damage to the products and the loss of profit arising
out of this. There was, however, no liability for
economic loss which was unconnected with the
physical damage.

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 Pure Economic Loss caused by acts or
omissions

• The general rule is that no duty of care is imposed

unless there are circumstances which justify the
imposition of a duty of care.
• In recent years, judges have been more liberal and
allowed a duty of care to be imposed.
• The test to determine duty of care is the ‘neighbour
test’.

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 PROFESSIONAL
NEGLIGENCE

➢ DUTY OF CARE
➢ - Is there a special relationship
➢ that requires a duty of care
➢ from the professional
➢ to the plaintiff?

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 The relationship between the parties was
"sufficiently proximate" as to create a duty of
care. It was reasonable for them to have known
that the information that they had given would
likely have been relied upon for entering into a
contract of some sort.

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 Negligent Misstatements
• Hedley Byrne & Co. v. Heller & Partners Ltd.
[1964] AC 465
a. The plaintiff/inquirer relied upon the defendant’s
information or advice;
b. The defendant knew or ought reasonably to have
known, that the plaintiff was relying on that
information or advice; and
c. It is reasonable for the plaintiff to rely upon the
defendant’s information or advice under those
circumstances.

Hedley Byrne (an advertising partnership) asked

their bank to make inquiries into the financial
position of Easipower Ltd., one of their clients,
which was also an advertising agency. 31
• A relationship of proximity will exist if the maker
of the statement knows that his statement will be
communicated to the plaintiff, whether as a specific
individual or as a member of an identifiable class.
• So the formal requirements that now must be
satisfied before a duty of care is held to exist are:-
(a) foreseeability of the damage;
(b) a sufficiently ‘proximate’ relationship between
the parties; and
(c) even where (a) and (b) are satisfied it must
be ‘fair, just and reasonable’ to impose such a
duty.

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The bankers for Hedley Byrne then telephoned the
defendant bank, Heller, inquiring about the financial
state and credit record of one of Heller's client
companies, Easipower Ltd. P was about to undertake
some significant advertising contracts for them that
involved a sum of £100,000 p.a. and wanted to be
sure of their financial security. Heller gave a
favourable reply about their client’s financial position
but qualified it by waiving responsibility, stating that
the information was: "for your private use and
without responsibility on the part of the bank and its
officials." P relied on this information and entered
into a contract with Easipower which went into
liquidation soon afterwards. P suffered losses up to £
17,000 which they were unable to obtain from
Easipower. P sued D for negligence, claiming that D
owed a duty of care to them and that the information
was given negligently and was misleading.
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The court found that the relationship between the parties was
"sufficiently proximate" as to create a duty of care. It was
reasonable for them to have known that the information that
they had given would likely have been relied upon for entering
into a contract of some sort.

This would give rise, the court said, to a "special relationship",

in which the defendant would have to take sufficient care in
giving advice to avoid negligence liability. However, on the
facts, the disclaimer was found to be sufficient enough to
discharge any duty created by Heller's actions. There were no
orders for damages. The Court held that a duty of care exists
where ‘… one party seeking information and advice was
trusting the other to exercise such degree of care as the
circumstances required, where it was reasonable for him to do
that, and where the other party gave the information or advice
when he knew or ought to have known the enquirer was
relying on him.’
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 Caparo Industries v. Dickman [1990] 1 All ER 568

• Auditor of a public company’s accounts owes no

duty of care to a member of the public at large who
relies on the accounts to buy shares in the company.
(it gives unlimited liability to auditors).

• There will not be a relationship of proximity

(closeness between the plaintiff and the defendant)
if the maker of the statement has no reason to
anticipate that his statement might be relied on by
strangers for any one of a variety of different
purposes.

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The case concerned an auditor (Dickman) who had
negligently approved an overstated account of a
company's profitability. A takeover bidder (Caparo)
relied on these statements and pursued its takeover on
the basis that the company's finances were sound.
Once it had spent its money acquiring the company's
shares, and company control, it found that the
finances were in poorer shape than it had been led to
believe. Caparo sued the auditor for negligence. The
House of Lords, however, held that there was no duty
of care between an auditor and a third party pursuing
a takeover bid. The auditor had done the audit for the
company, not the bidder. The bidder could have paid
for and done its own audit. Consequently there was
neither a relationship of "proximity" nor was it "fair,
just and reasonable" to make the little auditor liable
for the massive lost sums of money that the big
takeover had spent.
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• Caparo Industries have held that in general auditors
only owe a ‘duty of care’ to the company (as a legal
entity) rather than to any individual current/potential
shareholder or creditor.
The Law Lords said ‘that the purpose of annual
accounts, so far as members [shareholders] are
concerned is to enable them to question the past
management of the company, to exercise their voting
rights, if so advised, and to influence future policy
and management. Advice to individual shareholders
in relation to present or future investment in the
company is no part of the statutory purpose of the
preparation and distribution of the accounts’.
“As a purchaser of additional shares in reliance on
the auditor’s report, he [the shareholder] stands no
different from any other investing member of the
public to who the auditor owes no duty”.
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 James McNaughton Papers Group Ltd v. Hicks
Anderson & Co. [1991] 1 All ER 134, CA.

• The plaintiffs were informed by the defendants

(auditors) that a company, MK, was breaking even
and on this basis, a successful but consequently
financially unprofitable takeover bid was made by the
plaintiffs. It was held that since the accounts were
prepared for MK and not the plaintiffs, it was
unreasonable for the plaintiffs to rely on the
defendant’s statement without making further
enquiries or advise.
• Thus, no duty of care was imposed.

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❖ Smith v Eric S Bush [1990] 1 AC 831.
P wanted to buy a house. She approached a building
society for a loan. One of the conditions of the loan
was that the house should be valued. The building
society instructed the defendants, a firm of surveyors
to inspect and value the house. But their fees were
paid by P and D were aware of this. D carried out
their inspection negligently. They said that the house
was worth £16,500. But it was not. Because the
chimneys were not supported and could collapse.
They did. The house was badly damaged. P would
not have purchased the house but for the D’s
valuation report. She had suffered financial loss
because of D’s negligence. She sued the defendants.
The House of Lords found in favour of the plaintiff.

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2 important features in this case. First, D knew that
the survey fee had been paid by the purchaser, P.
Second, D knew that the survey report would be
relied on by the purchaser/P in order to decide
whether or not to purchase the house.

It is the D’ knowledge that turned the balance against

them as Lord Jauncey of Tullichettle said this:
‘In these circumstances they [the defendants] must be
taken not only to have assumed contractual
obligations towards the building society but delictual
obligations towards Mrs Smith, whereby they became
under a duty towards her to carry out their work with
reasonable care and skill. It is critical to this
conclusion that the appellants knew that Mrs Smith
would be likely to rely on the valuation without
obtaining independent advice’.
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In Yianni v. Edwin Evans & Sons [1982] QB 438,
the plaintiffs’ wanted to buy a house. It cost £15000.
They applied to a building society for a mortgage.
The building society engaged the defendants, a firm
of valuers to value the house in question. The
defendants valued that the house was worth £15,000.
It was later discovered that the house had major
defects and was worthless or worth far less than
£15,000. The plaintiffs claimed damages against the
defendants for negligence. The defendants admitted
that they had been negligent in preparing the
valuation report but denied that they owed a duty of
care to the plaintiffs because the plaintiffs’ loss was
caused by their own negligence in failing to
commission an independent survey.

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Park J who tried the action found for the plaintiffs.
He held that the defendants knew that their valuation
of the house would be passed on to the plaintiffs, who,
in the defendants’ reasonable contemplation, would
place reliance on its correctness in making their
decision to buy the house and mortgage it to the
building society. On that basis he held that there was
a sufficient relationship of proximity between the
parties. And, he ruled against the defence of
contributory negligence. This was because the
plaintiffs’ failure to have an independent survey done
was due to their reliance on the defendants’ valuation.

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 Breach of Duty of Care
• Professionals will be judged on the standard to be
expected from a reasonably competent professional
practicing and specialising in the same field as the
defendant. ‘A man or woman who practices a
profession is bound to exercise the care and skill of
an ordinary competent practitioner in that profession
– be it the profession of an accountant, a banker, a
doctor, a solicitor or otherwise’ per Barabah LP in
Swamy v. Mathews & Anor [1968] 1 MLJ 138 at pp
139 & 140 (Federal Court).

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 CAUSATION
• The plaintiff will not have suffered the loss or injury
but for the defendant’s breach of duty i.e. had it not
been for the negligence of the defendant, the plaintiff
would not have suffered any harm.The “But for” test
in Barnett v. Chelsea & Kensington Hospital
Management Committee.
• Reasonable foreseeability test: The Wagon Mound
(No. 1)
• Whether the damage suffered by the plaintiff is
reasonably foreseeable in the circumstances?
• The type of damage or loss caused must be
reasonably foreseeable.

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➢ DEFENCES IN TORT

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 DEFENCES

• Once the plaintiff proves all the elements of

negligence, it is now up to the defendant to show the
court that he has a defence to the plaintiff’s claim to
free or clear him of any liability.

• Failure by the defendant to raise and prove any

defence will render him liable to the plaintiff as the
tort has been established.

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➢ VOLENTI NON FIT INJURIA

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 VOLENTI NON FIT INJURIA
• It means that the plaintiff has consented or
voluntarily assumed the risk of injury.
• It is the law that no injury is done to one who
consents and no act is actionable as a tort at the suit
of any person who has expressly or impliedly
assented to it – volenti non fit injuria.
• A defendant will escape all liability to an injured
plaintiff if he can prove that the plaintiff freely and
voluntarily, with full knowledge of the nature and
extent of the risk he ran, impliedly agreed to incur it.

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 Elements
1. Agreement by plaintiff to accept the risk of injuries caused
by the negligence of the defendant and that he will not bring
an action against the defendant if he suffers any injuries or
loss.
• Slater v. Clay Cross Co. Ltd. [1956] 2 QB 691
2. Plaintiff’s agreement must be voluntary.
Bowater v. Rowley Regis Corporation [1944] KB 476
3. Full knowledge
• Mere knowledge of the existence of the risk is insufficient.
The plaintiff must be fully aware of the nature and extent of
the risk of injury.

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“Volenti non fit injuria 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 risk does not amount to consent. A motorcyclist
is not entitled to claim the defence of volenti merely
on the ground that his pillion knew of the risk of
injury or was willing to take that risk - it must be
shown that the pillion accepted for himself the risk
of injury arising from the rider's lack of skill and
experience or the rider's wanton display of
foolhardiness and showmanship”.
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 REQUIREMENTS TO BE SATISFIED:

1. Agreement – plaintiff agrees to accept the risk of

injuries caused by the negligence of the defendant
and agrees that he will not bring an action against
the defendant if he suffers any injuries or loss.
• Slater v. Clay Cross Co. Ltd. [1956] 2 QB 691
P was walking along a tunnel on a railway track
which was owned by D when due to the negligence
of the driver, she was injured. Lord Denning said
that even though P could be said to have voluntarily
assumed the risk of danger, she could not be said to
have agreed to the risk of negligence by the driver.

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• The plaintiff must have agreed, in addition to
knowledge of the risk, to have waived any injury that
might incur.
“Knowledge of the risk of injury is not enough. …
Nothing will suffice short of an agreement to waive
any claim for negligence. The plaintiff must agree,
expressly or impliedly, to waive any claim for any
injury that may befall him due to the lack of
reasonable care by the defendant: or, more
accurately, due to the failure by the defendant to
measure up to the standard of care which the law
requires of him”. Per Lord Denning M.R. in
Nettleship v Weston [1971] 2 QB 691, 701.
• The case concerned a claim by a driving instructor
who was injured by the negligent driving of the pupil.
The driving instructor had offered to give driving
lessons to the wife of a friend. Before doing so he had
inquired whether or not there was in force a policy of
insurance and he was given the assurance that there 52
• was and was shown a fully comprehensive policy
which covered a passenger in the event of accident.
The maxim was held to have no application as the
passenger did not consent to accept the risk of injury
or condone in advance the learner’s negligence.
The Master of Rolls added:-
“Applying the doctrine in this case, it is clear that Mr.
Nettleship did not agree to waive any claim for injury
that might befall him. Quite the contrary. He inquired
about the insurance policy so as to make sure that he
was covered”.

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❖ In Morris v Murray and Another [1991] 2 QB 6. a
passenger suffered injuries in an aircraft crash that
killed the pilot. The facts of the case were as follows.
After drinking alcohol during the whole of the
afternoon, the plaintiff and his friend decided to go on
a flight in the friend’s light aircraft. The plaintiff
drove the car that took them to the airfield and he
helped to start and refuel the aircraft, which was
piloted by the friend. Shortly after take off the aircraft
crashed, killing the pilot and severely injuring the
plaintiff. In an action against the pilot’s personal
representatives for personal injuries, the trial judge, in
giving judgement for the plaintiff, held that the
defendants had succeeded on their plea of
contributory negligence but not their alternative plea
of volenti non fit injuria.

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The Court of Appeal in allowing the defendant’s
appeal, held that the plaintiff willingly embarked
upon the flight, knowing that the pilot was so drunk
as to be incapable of discharging a normal duty of
care; that the danger in embarking upon the flight was
both obvious and great and the plaintiff was not so
drunk as to be incapable of appreciating the nature
and extent of the risk involved, and, therefore, he was
to be taken to have fully accepted the risk of serious
injury and implicitly discharged the pilot from
liability for negligence in relation to the flying of the
aircraft; and that, accordingly, the maxim volenti non
fit injuria applied as a defence to the plaintiff’s claim.

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2. Plaintiff’s agreement must be voluntary.
• The plaintiff must be able to choose freely and
wisely without any feeling of constraint when
giving his consent. He must not be subject to any
restrictions, coercion or duress so as to make his
choice forced and unreasonable.
Bowater v. Rowley Regis Corporation [1944] KB
476
3. Full knowledge
• Mere knowledge of the existence of the risk is
insufficient. The plaintiff must be fully aware of
the nature and extent of the risk of injury.

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➢
➢ CONTRIBUTORY NEGLIGENCE

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 CONTRIBUTORY NEGLIGENCE
• Contributory negligence provides a partial defence
to a claim in tort.
• It is the plaintiff’s failure to use reasonable care for
the safety of himself or his property and so that he
becomes partly blameworthy as an ‘author of his
own wrong’. The test of contributory negligence is
based entirely on the conduct of the plaintiff - Lai
Yew Seong v. Chan Kim Sang [1987] 1 MLJ 403
• Contributory negligence is the failure by the
plaintiff to meet the standard of care to which he is
required to conform for his own protection and
which has contributed, together with the defendant’s
default, in bringing about the plaintiff’s injury.
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 CIVIL LAW ACT 1956
• The defence of contributory negligence is found in
the Civil Law Act 1956 (Revised 1972).
Section 12 of the Act provides as follows:-

(1) Where 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 Court thinks just and equitable
having regard to the claimant’s share in the
responsibility for the damage.

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(2) Where damages are recoverable by any person by
virtue of the foregoing subsection subject to such
reduction as is therein mentioned, the court shall
find and record the total damages, which would
have been recoverable if the claimant had not been
at fault.

❖ Jones v. Livox Quarries [1952] 2 QB 608

P disobeyed his employer’s instructions by riding
on the back of a traxcavator. Another vehicle hit
the back of the traxcavator and P was injured. The
court held that P was contributorily negligent as he
failed to take reasonable care for his safety which
contributed to his injuries.

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 Elements to be satisfied

• That the plaintiff is negligent in the sense that the

plaintiff has failed to take reasonable care for his own
safety.
• The test to be used is whether the plaintiff ought to
have foreseen that if he does not act as a reasonable
person, he may hurt himself; and in his consideration,
he must take into account that others may be
negligent; and
• the plaintiff’s negligence is a contributory cause to
his injuries.

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• A motor-cyclist who fails to wear a crash helmet
and is injured in an accident may be held partly
responsible for the injuries which he would not have
received had he been wearing a helmet.
O’Connell v. Jackson [1971] 3 All ER 129

❖ In Froom v. Butcher [1975] 3 All ER 520, the

Court of Appeal laid down as a general guide that
the plaintiff’s damages should be reduced by 25%
in cases where the injuries would have been
prevented altogether, and by 15% where they would
have been less severe if an available seat belt had
been worn.

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❖ The High Court in Siti Rohani Mohd Shah & Ors.
v Hj. Zainal Hj. Saifiee & Anor.[2001] 1 CLJ 498
held, inter alia, that the nature of the injuries
sustained by the plaintiff must be of a kind that
would have been reduced had the plaintiff been
wearing a safety helmet at the time of the accident.
Jeffrey Tan J said:-
“….In not wearing a safety helmet, she was not
being prudent, for a reasonably prudent man would
foresee that the wearing of a safety helmet might
result in less harm being caused to him, whether by
someone else or by himself, if he is involved in an
accident or collision while riding a motorcycle. But
she did not sustain any head injuries, and the
wearing of a safety helmet would not have reduced
her injuries..”
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