DEFENCES TO THE TORT OF NEGLIGENCE CONTRIBUTORY NEGLIGENCE AND VOLENTI NON FIT INJURIA
CONTENT
5.0 INTRODUCTION
6.0 OBJECTIVES
7.0 MAIN CONTENT
8.0 CONCLUSION
9.0 SUMMARY
10.0 TUTOR MARKED ASSIGNMENT
11.0 RERERENCES/FURTHER READINGS
INTRODUCTION
In the last unit you learnt about Negligence and Consequences of Negligence action. There are two principal defences to negligence action.
Defences to the Tort of Negligence
- Contributory Negligence
- Volenti non fit injuria – defence of consent.
Civil liability of mescelaneous law provision. The Lagos State Edict for the Northern State S.5 Civil liability miscellaneous provision law No 20 1957 West/Midwest S.8 tort law at 122 19.
Esteem tort Law S. 7 (1962)
The effect of these laws which are similar in content is that the court now have power to apportion liability between pf and df. A df who is sued for negligence may raise the effect of contributory negligence on the part of the pf. Even though the pf may be guilty of contributory negligence the court can still go ahead to award part of the damages to be shared by the df. But the pf still share in the brunt. See Appah v E. A. Constain (1994) 1 All NWLR 235.
See Evans V S. B. Bakare (1974) NWLR 78. Collision between motorist and cyclist at road junction. The df was accused of not keeping proper lookout and of driving at fast speed. Demand of negligence by df alledging that the pf made sudden emerge into the road. Trial judge accepting df version of how accident happened and exonerating him from blame for the accident subsequent find of negligence against of one pf however, held mor to blame. The pf sued the df for the negligence driving of his motor car at Apapa wharf on 20/3/67 and the running into his motor car. The df denied negligence of any kind and alleged that it was the fault of the pf.. he judge reasoned with him but found him liable as far the collision between his care and pf the df appealed. The onus of proving his chain resorted on the pf as it is obvious that trial judge found the pf responsible for the accident for which he was claim damages.
Abraham Adegoke v CFAO. The deceased was injured by the df negligence during the cause of treatment he developed neumonia and subsequently die. The df pleaded that the death of the pf was not caused by the accident since there was a nova causa, the nemonia. The pf rejected this arguing because therwe was an appropriate causa connction between the df negligence and the Nemonia. Set in and there was no break in the chain of causation, the df was therefore liable for her diseased death.
Read the defence of Consent
Contributory Negligence
We mean the conduct of the pf which falls below what a reasonable man could observe for his non safety. When a pf sues a df for negligence, the df will accept negligence at will also blame the pf for his own fault and content that the pf should share in the loss. At common Law, the rule was very harsh because if there was any indication that the pf was partly responsible for the damage, he will loss all his claim. In other to mitigate this hardship the court introduced the lat opportunity rule i.e. that the df should be responsible because he had the last opportunity to avoid the damage and vice versa before the introduction of the civil liability Miscellaneous Act(1961) and Lagos State applicable laws Edict (1989) S. 11 for the Northern State S. 5 Civil liability miscellaneous provision law N0 2 (1957) for former west and mid-west N08 Torts Law Cap 122 (1959) Edition. East Torts Law Cap 122 1959 Edition. East Tort Law No 7 1962 S.3.
The present position under this law is that the Court now avoid fixed rules and there are provision for apportioning blames on the parties as a result of this law the pf will no longer fail because he was partly responsible but they will both pay for their part of the blame. The last apportunity rule was also abolished.
In any case you cannot hold a df liable for contributory negligence if the blame is entering on the pf.
Evans V S.B. Bakare (1974) NWLR 78.
The evidence as found and accepted by the trial judge was that the pf was negligently riding his motorcycle, emerged into the road and collided with the df’s vechicle. The pf was entirely to blame for the accident but the trial judge erroneously applied the principle of contributory negligence. This was however offset by the court of appeal. See also Okuwodu V Alli (1957) WRNLR 195.
Held:- the pf who rested his arm on the window of his vehicle while it ws in motion was not contributory negligence while the df driving negligently brushed to arm. The af tried to plea that the pf was contributory negligence but the court rejected this contention and held the df wholly responsible. If appears that failure on the part of a motor-cyclist or his passenger to, wear crash-helmet is contributory negligence or their part for head injuries. See O Connel v Jackson (1972) 1 QB 270.
Contributory negligence was applied here were a motorcyclist failed to wear his crash helmet and was severely wounded because the injury would have been less severe if he had his crash helmet on.
Pasternack v Poulton (1973) 1 WLR 476.
The pf was being given a lift in the df car, when failed to strap on the seat belt: she did not care about it and the dfs himself did not ask her to put it on. The dfs car crashed and the pf was injured. She shed the df and the accepted negligence driving but contended that the pf was partly negligence for failing to use her seat-belt. An expert gave evidence that if she had warn her eat-belt, the injury wouldn’t have been that severe. The court held her contributory negligence but for only 5%. See also Froom v Butcher (1974) 3 AER 520.
The pf did not wear the set belt while he was driving the df negligence crashed into the pfs car. In an action against the df the pf pleaded contributory negligence because the pf did not wear his seat belt because according to him people get trapped in a wreckage of an accident if he was seat belt but the court rejected his contention. It is for the df who alleges contributory negligence to prove it. With regard to adult it is easier but it may be more difficult in relation to children.
With respect to drunken drivers and passengers, it is held that a person is liable for contributory negligence if he travels in a car with a drivers who he knew has consumed enough alcohol as to impair his ability to drive safely.
Daun v Hamilton (1939) 1 KB 509.
The plea of volenti non fit injuria failed because he knew that the person giving him a lift was drunk but held that the pf was only contributory negligent.
Defence of Consent
Implies that the pf by his own free will and with the full appreciation of the danger has absolved the df from liability. The effect of this defance where it succeed means that the pf will not recover anything at all. The consent under this defence must be gentle. There must be no pressure or collusion of any sort e.g. Economic pressue may lead the pf to do what he would normally not do. There are some risky jobs undertaken by people because of economic pressure. Such a person who sues for injury as a result of such job will not be faced by the defance of volenti non fit injuria. See Smith v Baker (1891) A.C. 325.
The workman were working in a quarry. A crane was carrying heavy stones moving to and fro above them and they knew. The stone fell and injured the df. In an action against the df, they pleaded volenti not fit injuria but it failed.
Similarly, there must be no legal or moral kinds of pressure eg. In rescue cases – A person who goes but to rescue another person by reason of the negligence by another person will not have this defence against him as there is moral pressure.
Note: However, that the pf’s action must be reasonable in the circumstances where it is a hopeless venture and where it will be clear to a reasonable man that it is risky then the defence will succeed but it will be difficult for the court to come to such a conclusion.
Note: that the injury in question must be within the risk assumed eg. Certain games involve certain injuries that the player should expect eg. A football game-player and spectator, but there is difference where a footballer deliberately kicks a football to hit a spectator or a player giving another player a punch. See Simms v Leigh Football Club (1969) 2 QER 923.
Woolridge v Summer (1962) 2 AER 978
In relation to drunken driver, it now appears that contributory negligence may succeed against a pf who discovers that the driver is drunk then decide to follow the driver.
Miller V Dacker
A plan of Volenti non fit injuria was allowed for a pf who followed a drunken driver but it was decided on its own merit.