DEFENCES TO THE TORT OF NEGLIGENCE

Table of Contents

1.0       Introduction

2.0       Objectives

• Main Content
• Express terms
• Implied assumption of Risk
• Restricted Risk
• Volenti Non Fit Injuria
• Contributory Negligence

4.0       Conclusion

5.0       Summary

6.0       Tutor Marked Assignment

7.0       References and Further Readings

INTRODUCTION

Voluntary assumption of risk as a defence to negligence corresponds to the plea of ‘consent’ in action for intended harm. No wrong is done to one who consents: Volenti non fit injuria. The basic idea is that the plaintiff by agreeing to assume the risk himself absolves the defendant from all responsibility for it.

OBJECTIVES

The purpose of this unit is to enable you to:

• understand the concept of voluntary assumption of risk;
• define and discuss the meaning of volenti non fit injuria;
• comprehend the implication of volenti non fit injuria on a plaintiff and the defendant;
• understand the different ways under which a plaintiff can voluntarily assume risk.

MAIN CONTENT

There are two basic defences to negligence action i.e. Volenti non fit injuria and contributory negligence.

• Express terms
• Implied assumption of Risk
• Restricted Risk

Volenti Non Fit Injuria

The phrase Volenti non fit injuria means no injury is done to one who consents. No person can enforce the right when he has voluntarily advised or abandoned that right. The maxi applies  when the plaintiff voluntarily agree to undertake the legal risk of harm at his own expense. See the case of Ndubusi v. Olowoke (1997) 1 NWLR Pt. 429 CA 62. The defence of volenti is a very strong and complete defence and therefore where it is upheld it exonerates the defendant from liability completely. However, in order to succeed in the pleading of volenti non fit injuria, the following ingredients must be established:

• Voluntary: The plaintiff must have the new ……… of choice before the defence can be successfully raised against him. A man cannot be said to be truly willing unless he is in the position to choose freely; this includes the absence from ….. mind …….. so that nothing shall interfere with the freedom of his
• Agreement: The maxim applies, where the parties have reached an express agreement that the plaintiff will voluntarily assume the risk of harm. The agreement must be made before the negligence act. See the case of Ndubusi

In limited cases, the court will be prepared to imply the agreement to run with the risk. Example, where the plaintiff accepts a lift from a driver whom he knows to be so intoxicated as to be incapable of driving safely. He would be deemed to have consented to any negligence to the driver’s part. In Morris v. Murray (1990) 3 All ER 801, the plaintiff went for a ride in a private plane piloted by the defendant despite the fact that he knew that the defendant was drunk. The plane crashed and the plaintiff was injured. It was held that the pilot’s drunkenness was so extreme and obvious that participating in the flight was like engaging in an intrically and dangerous occupation. Defence of volenti succeeded.

Contributory Negligence

Contributory negligence applies where the damage the plaintiff has suffered was partly by his own fault and partly by the fault of the defendant. Open JCA in Sheun v. Afere (1998) NWLR  Pt. 546 CA 119 said:

“….contributory negligence means that the party charged is primarily liable but that the party charging him contributed by his own negligence to what eventually happened. A party having admitted primarily liability of negligence has a duty

to establish that the other party contributed to what happened”.

From the foregoing judicial authority, in order to succeed in the defence of contributory negligence, the defendant must prove that the plaintiff has failed to take reasonable care of his own safety and this failure was a cause of his damage.

The old common law rule was that if the harm done to the plaintiff was due partly to his own fault, he would recover nothing from the defendant. The rule imported hardship to the plaintiff and therefore it was replaced by Section 1 (1) of the Law Reform (Contributory) Negligence Act

1945. The Act makes the defence of contributory negligence the mitigating factor and not a complete defence.

Various torts law in Nigeria have incorporated the provision of the Section 1 (1) of the Law Reform (Contributory) Negligence Act 1945 above. Then in National Bank of Nigeria v.T.A.F.A. (1996) 8 NWLR Pt. 468, it was clearly stated that:

“where any person suffers damage as a result of partly his own fault and partly as a result of the fault of any other person, the claim in respect of that damage shall not be defeated by reason of the fault of the person suffering damage. But a damage recoverable in respect thereof shall be deduced from such extent as the court deems fit”.

Contributory negligence is based on the failure of the plaintiff to take reasonable care of himself in his own safety. See the case of D. Connell v. Samsung.

Under the defence of volenti non fit injuria, contributory negligence if ….. succeed the plaintiff will have his damages reduced by the court in proportion to his fault. It is therefore a mitigating factor and not a complete defence.

CONCLUSION

“A volunteer cannot complain of injury”. If a man consents to an act either expressly or impliedly, he cannot be heard to complain of any injury he suffers as a result of the act. Thus, a footballer may be taken to have consented to any injury he suffers during a football match.

SUMMARY

In this unit, you learnt about the principles of:

• volenti non fit injuria;
• the implication of voluntary assuming a risk;
• the distinction between volenti non fit injuria and the duty of care; and
• the ways risk could be assumed by a plaintiff

TUTOR MARKED ASSIGNMENT

1. Discuss the term ‘volenti non fit injuria’.
2. Discuss the implication of voluntary assumption of risk on a plaintiff and a defendant.

REFERENCES AND FURTHER READINGS

Bodunde, Bankole (1998). Torts, Law of Wrongful Conduct. Lagos: Libriservices Press. Kohdiye, G. and Aluko, O. (1999). Nigeria Law of Torts. Ibadan: Spectrum Publishers. Fleming, John G. (1997). The Law of Torts. London. The Lawbook Copublishers.

Tobi, Niki (1999). Sources of Nigerian Laws. Lagos. My Publishers.