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DEFENCES (Contributory negligence (Elements (Breach (Gough v Thorne: SoC…
DEFENCES
Contributory negligence
General principles
Raised in connection with plt's conduct. Not case of 'contribution'. Not pleaded with battery / assault (Pritchard v Co-operative Group). Standard is that of reasonable person, but in practice slightly less rigid for SoC.
s 3(1) of Contributory Negligence and Personal Injuries Act: 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
Elements
- Duty owed by plaintiff to himself
Nance v British Columbia Electric Ry: injured party did not in his own interest take reasonable care of himself and contributed to own injury
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Plt's conduct can still be intentional (Reeves). Same as negligence, can bring action for intentional act, likely to fall below SoC of reasonable person.
Fitzgerald v Lane: Plt contributed to accident (cross road in dangerous manner)
Froom v Butcher: Contributed, does not wear seat belt
Jones v Livox Quarries
Plt negligently sat on back of moving farm vehicle, another vehicle negligently collided. Plt's negligent contribution to own damage must be within the scope of the risk. Risked impact inury - so yes CN.
- Proving factual causation and remoteness of damage
Jones v Livox Quarries
Guilty of CN if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might be hurt himself
Imputed CN
Oliver v Birmingham and Midland Motor Omnibus
CN by parent / guardian will not be imputed to reduce child's claim
But note that def, rules on contribution, could join parent / guardian as 3rd party,
Apportionment of damages
Fair and equitable, based on share of responsibility of plt and def
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Reduction higher where claimant contributes to accident (self-intoxication, crossing against light, trespass)
Illegality
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Position in Singapore
Ooi Han Sun v Bee Hua Meng: Plt suffered injuries due to def's negligence. Rejected defence, unrelated illegality of being in Singapore w/o work permit.
United Project Consultants v Leong Kwok
'very thing' principle applicable in SG.
D owed duty as auditor to warn P of errors on his tax returns. D’s liability was not extinguished by P’s act in submitting the erroneous returns + weird position about serious enough act.
Consent
General principles
Intentional torts: actual consent to the act complained of. Negligence: consents to risk that def might negligently do the act complained of.
Elements of volenti are:
(a) P’s act must be voluntary, and not the result of coercion or force;
(b) P must actually agree to run the risk. This is assessed subjectively, and not on the basis of whether a reasonable person in P’s shoes would have done so;
(c) P must know and appreciate the nature and extent of the risk
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Special circumstances
Driving / flying
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Nettleship v Weston: no volenti since plt enquired about def's insurance
Dann v Hamilton: no volenti since if plt really recognized risk, she'd have gotten out of car
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Sports
Woolridge v Sumner: Defence successful. Photographer at horse race failed in action. SoC lowered to take into account hazardous nature of sport.
Smoldon v Whitworth
CA held that he had not consented to rules which had been framed for his protection being ignored. just ordinary incidents.
Watson v British Boxing Board of Control: CA held that although he had consented inherent risks, he expected the controlling body to minimize these risks, and had not consented to be left untreated
Agar v Hyde: International rugby regulator no duty of care to domestic players, connection not sufficiently close.
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