Negligence Defense This Is Specifically Made For Exam Purpose of Tort Law It Includes All The

lOMoARcPSD|15943327
Negligence Defense - This is specifically made for exam

purpose of tort law. It includes all the
Law of Tort I (City University of Hong Kong)
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lOMoARcPSD|15943327
Lui Sze Nok
TORT LAW – NEGLIGENCE - DEFENSE

Defendant (D) may raise a defence, once claimant (C) has proved: 'on the balance of probabilities', D owed duty
to C, breached that duty & caused C's loss or harm
• multiple defences can be argued but must be proved 'on the balance of probabilities' to succeed
• general defences apply to all torts & have public policy reasons
• types of defence: absolute defence (completely bars claim) & partial defence contributory negligence (limits
D's liability)
• absolute defences: mistake, necessity & limitation, excluded liability consent & illegality
1. VOLENTI NON FIT INJURIA

A defendant may raise consent, also referred to as a voluntary assumption of risk ('volenti non fit injuria'), as
an absolute defence. If the defence is accepted a claimant will be prevented from recovering redress for a
defendant's breach of duty.
In this case, (the defendant) would likely to establish the complete defense on volenti non fit injuria to absolve all
of his liability. Here concerns whether there is a freely entered and voluntary agreement by (the claimant), in full
knowledge of the circumstances, to absolve (the defendant) of all legal consequences of their actions.
A. Claimant's knowledge of the risk

The first element a defendant must establish is that the claimant had full knowledge of the nature and extent
of the risk. It is insufficient for the claimant to have merely known that the risk exists.
The courts adopt a subjective test to determine whether the particular claimant fully understood the risk.
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lOMoARcPSD|15943327
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Nettleship v Weston
-The defendant who granted to learn driving had her own car
-The plaintiff asked about the 3rd party liability insurance before agreed to give driving instructions in her
carinferring no agreement to take the risk
-The defendant lost control of the car, injuring the plaintiff
-CA rejected the defence of volenti pleaded by the defendant since the plaintiff did not agree to waive any
claim for injury that might befall (降臨)him
a) Drunk
Case: MORRIS V MURRAY [1991] 2 QB 6

FACTS: The plaintiff was severely injured in a light aircraft accident and the pilot was killed. The plaintiff had
been drinking with the pilot prior to taking the flight. The plaintiff sued the pilot's estate, but the defendant
raised consent as a defence.
ISSUE: Had the plaintiff appreciated the risk?
HELD: The Court of Appeal applied a subjective test to find that the plaintiff had not drunk so much that he was
incapable of appreciating the nature and extent of the risk he is undertaking.
VS
Case: BARRETT V MINISTRY OF HEALTH [1995]

FACTS: an airman got so drunk that he became unconscious and died of suffocation from his own vomit. It was
pleaded that the deceased went on drinking excessively and thereby assumed the risks of harm by drinking.
HELD: The court rejected the defense of volenti as the rinks had clouded his mind and rendered him incapable
of appreciating the risks involved in excessive drinking.
b) Self harm due to psychiatric illness - Suicide
Case: KIRKHAM V CHIEF CONSTABLE OF THE GREATER MANCHESTER POLICE [1990]

FACTS: P’s husband who had suicidal tendencies was taken into custody by the police. The police knew that he
was a suicide risk, and had made attempts to commit suicide before. Subsequently, the police transferred P’s
husband to the prison authority but the police failed to inform them about the suicide risk of the P’s husband,
who then commited suicide. D pleaded, inter alia, volenti non fit injuria on the deceased’s part.
HELD: P’s husband was not truly volens, ‘having regard to his mental state, he cannot, by his act, be said to
have waived or abandoned any claim arising out of his suicide. So the court rejects the defence of volenti non fit
injuria”.
Case: REEVES V COMISSIONER OF POLICE OF THE METROPOLIS [2000]

lOMoARcPSD|15943327
HELD: Trial judge: Where the fact were similar, he refused to allow the defense of volenti non fit injuria because on his
findings, the deceased was of sound mind.
CA: allowed P’s appeal and held that the D’s duty of care existed irrespective of the deceased being of sound or unsound
mind, and as the deceased’s suicide was the very act against which the defendant was to taken precaution. The deceased’s
suicide did not constitute a new or intervening act and the defense of novus actus interveniens and volenti non fit injuria
were inapt and could not be invoked to deny P’s claim.
c) Other cases
Succeed:
Case: GEARY V J D WETHERSPOON PLC [2011]

HELD: the defense of volenti non fit injuria succeeded where the P, despite knowing of the prohibition not to slide down
the D’s banisters, did so and was injured.
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Fail:
Case: TOMLINSON V CONGLETON BC [1990]

FACTS: P dived into D’s shallow lake and hit his head on the bottom. D had prohibited the public from swimming in the
lake.
HELD: The defense of volenti non fit injuria failed because P did not know that the water where he dived was so shallow
and that he would be injured. However, P’s damages were reduced by two thirds for his contributory negligence.
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B. Claimant's consent
Secondly, a defendant must prove the claimant willingly consented to taking the risk of injury because
3

lOMoARcPSD|15943327
simple knowledge of the risk ('sciens is not volens') is not sufficient. The consent must be freely and
voluntarily given, without duress or fear. Therefore, the relationship between the parties may be taken into
consideration. The claimant's consent to the risk may be expressed orally or in writing or implied by their
conduct. However, it is unusual for consent to be implied, as it is difficult to distinguish that the claimant
consented to run the risk of harm and also accepted the risk of the defendant's negligence.
Case: NETTLESHIP V WESTON [1971]

FACTS: D who wanted to learn driving had her own car. P agreed to give driving instruction in her car. D lost
control of the car injuring P.
HELD: CA rejected the defense of volenti non fit injuria pleaded by the defendant since P did not agree to
waive any claim for injury that might bafall him-
Lord Denning: Knowledge of the risk is not enough. Nor is a willingness to take the risk of injury. Nothing
will suffice short of an agreement to waive any claim for negligence. P must agree, expressly or impliedly, to
waive any claim for any injury that may befall him due to the lack of reasonable care by D; or more
accurately, due to the failure of the defendant to measure up to the standard of care that the law requires of
him.”
The consent that is relevant is not consent to risk of injury but consent to the lack of reasonable care that may
produce that risk.
a) Intoxicated drivers
The defense of Volenti non fit injuria will most likely fail. Moreover, there is statutory control to motor vehicles.
Case: DANN V HAMILTON [1939]

FACTS: P, her mother and another person named Taunton got a lift from one Hamilton. Taunton left the car
and P and her mother continued on. As Taunton left the car, he told P and her mother, “You two have more
pluck than I have” to which P replied, “You should be like me. If anything is going to happen, it will happen.”
Shortly thereafter, the car met with an accident, killing the driver and injuring P. It was common ground that
the accident took place because Hamilton had taken an excessive amount of drink and P knew that Hamilton
was under the influence of drink.
ISSUE: whether the D could successfully plead the defense of volenti non fit injuria. It is a question of fact.
HELD: the defense of volens would fail. Where P took a lift with a driver with the knowledge that the driver
had materially reduced his capacity for driving safely through drink, those facts alone did not imply consent
to suffer harm or absolve the driver from liability for any subsequent negligence on his part.
CASE: PITTS V HUNT [1990] 3 ALL ER 344

FACTS: The plaintiff was severely injured in a motorbike accident, when travelling as a passenger. The
plaintiff knew that the driver, who died in the accident, was drunk, uninsured and did not have licence. The
plaintiff sued the driver's estate, but the defendant raised consent as a defence.
4

lOMoARcPSD|15943327
ISSUE: Could consent be used as a defence?

HELD: The court found that s.148(3) Road Traffic Act 1978 prevents a defendant driver raising consent as a
defence in circumstances where insurance cover for passengers is compulsory. The plaintiff had implied
agreement to the risk by travelling as a passenger but consent was unavailable as a defence because of the
statutory provisions. However, the court found that there was contributory negligence on the part of the
plaintiff.
Beldam LJ: '.. it is no longer open to the driver of a motor vehicle to say that the fact of his passenger
travelling in a vehicle in circumstances in which for one reason or another it could be said that he had
willingly accepted a risk of negligence on the driver's part relieves him of liability for such negligence...'.
Therefore, under s.149 Road Traffic Act 1988, a defendant is unable to rely upon consent as a defence in
cases where a passenger has been injured and insurance cover for the passenger was compulsory. This applies
express agreements between driver and passenger, such as a notice stating passenger travel at their own risk
and to implied agreements. However, contributory negligence is likely to succeed.
The Motor Vehicle Insurance (Third Party Risks) Ordinance (Cap 272) provides that the defense of volenti
non fit injuria will not succeed in cases involving certain motor vehicles.
(2) Where a person uses, or causes or permits any person to use, a motor vehicle on a road in such
circumstances that under section 4(1) there is required to be in force in relation to his use of it such a policy
of insurance or such a security in respect of third party risks as complies with the requirements of this
Ordinance, then, if any other person is carried in or upon the vehicle while the user is so using it, any
antecedent agreement or understanding between them (whether intended to be legally binding or not) shall be
of no effect so far as it purports or might be held-
(a) to negative or restrict any such liability of the user in respect of persons carried in or upon the vehicle as
is required by section 6(1) to be covered by a policy of insurance; or
(b) to impose any conditions with respect to the enforcement of any such liability of the user,
and the fact that a person so carried has willingly accepted as his the risk of negligence on the part of the user
shall not be treated as negativing any such liability of the user.
b) Rescuers
Consent is unlikely to succeed against a claimant who has been injured when acting as a rescuer. Generally,
as a matter of policy, rescuers are encouraged. Furthermore, a rescuer is seen as acting under a legal, moral
or social duty and therefore, has not freely consented to the risk of being injured in an emergency situation
created by the defendant's negligence.
Case: HAYNES V HARWOOD [1935] 1 KB 146

FACTS: The plaintiff, a policemen saw the defendant's horse running loose in a crowd. The plaintiff was
injured
when he decided to chase after the horse. The defendant argued that the plaintiff had consented to the risk.

lOMoARcPSD|15943327

HELD: The defence of consent was not successful. It was reasonably foreseeable that a person would act to
intervene, especially the defendant who is under a general duty to assist and that injury may occur as a result.
Greer LJ: '.. I think it would be absurd to say that if a man deliberately incurs a risk he is entitled to less
protection than if he acts on a sudden impulse...'.
Case: CUTLER V UNITED DAIRIES [1933] 2 KB 297

FACTS: The plaintiff was injured when he entered a field to calm the defendant's horse. The defendant's
horse had bolted into the field and the plaintiff stopped to help. The defendant raised consent as a defence.
HELD: Consent was a successful defence because the plaintiff did not need to intervene as the horse
presented no immediate danger. Therefore, the plaintiff was not acting under any duty to rescue and was
found to have willingly consented to the risk of injury.
Case: BAKER V TE HOPKINS [1959] 1 WLR 966

FACTS: A doctor was killed when he entered a well to attempt to rescue two of the defendant's workers.
HELD: The situation was clearly dangerous and the victim decided to enter the well anyway, however, his
conduct did not amount to consent.
Case: TAM SAU FONG V SHENG KUNG HUI DIOCESAN WELFARE COUNCIL [2002]
FACTS: a home helper employed by D, a government-subvented welfare organization, sustained injuries
when she tried to restrain a person she was caring for, from attacking another.
HELD: P acted by reflex in response to an emergency and neither the plea of volenti non fit injuria nor the
plea of contributory negligence could be successfully pleaded.
Pol
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Where a person goes to rescue another person, or the defendant or the defendant’s property from a danger
created by the defendant’s negligence, the latter cannot rely on the defence of volenti
Tam Sau Fong v Sheng Kung Hui Diocesan Welfare Council
 A home helper employed by the defendant
 The helper sustained injuries when she tried to restrain a person she was caring for, from attacking
another
 The court held that the plaintiff acted by reflex in response to an emergency and that neither plea of
volenti nor the plea of CN could be successfully pleaded

lOMoARcPSD|15943327
c) Workers
Generally the defence of consent rarely succeeds in cases between an employer and employee. This has
developed over time with earlier cases showing that the courts were more willing to accept the defence.
Case: WOODLEY V METROPOLITAN DISTRICT RAILWAY CO (1877) 2 EXD 384

FACTS: The plaintiff was injured when he was working on a railway for the defendant. The plaintiff would
have very little time from becoming aware of an oncoming train to get to a safe place.
ISSUE: Could consent be used by the employer as a defence?
HELD: Consent defence was accepted as the plaintiff voluntarily undertook the work, knowing the danger.
Case: BOWATER V BOROUGH OF ROWLEY REGIS [1944] KB 476

FACTS: The plaintiff was injured when riding a horse-drawn cart for the defendant, his employer. The horse
was known to be unruly and the plaintiff initially refused, but eventually agreed.
HELD: The defence of consent was not successful.
Scott LJ: '.. A man cannot be said to be truly willing unless he is in a position to choose freely, and freedom of
choice predicates, not only full knowledge of the circumstances on which the exercise of choice is
conditioned, so that he may be able to choose wisely, but the absence from his mind of any feeling of
constraint so that nothing shall interfere with the freedom of his will...'
Case: CORR V IBC VEHICLES [2008] UKHL 13

FACTS: An employee was injured at work, due to the defendant's negligence. As a result he suffered severe
depression as a consequence and committed suicide.
HELD: The House of Lords confirmed that the employee's suicide following negligence by the employer did
not constitute consent. The severe depression, which led to the suicide, was a foreseeable consequence of the
defendant's breach. Similarly, if a claimant is suing an employer for breach of a statutory duty the defence of
consent is not likely to succeed on policy grounds.
Case: IMPERIAL CHEMICAL INDUSTRIES LTD V SHATWELL [1965]

FACTS: p and his brother together with a 3 rd person were employed by D in a rock blasting operation. In
breach of statutory provision and strict instructions from D, they tried out a new detonator without taking

lOMoARcPSD|15943327
proper precautions. An explosion occurred causing injury to P. He sued D holding him vicariously liable for
the negligence of his brother.
HELD: where an employee deliberately put himself in peril, he would be deemed to have consented to
exempt the employer from liability.
Case: SMITH V BAKER & SONS [1891]

FACTS: P was employed by D to drill holes in a rock. While he was doing so, cranes were lifting rubble over
the heads of workers including P. That posed a physical danger to P. He protested to D but continued to work
until hit by a falling rock.
HELD: in the circumstances in which P was placed, he had no choice but to continue to work and the mere
knowledge of the danger did not imply that he took the risk of injury voluntarily in order to exempt the
employer from liability.
d) Sports
It is well established that a participant or organiser of a sports event may be liable in Negligence, to
competitors or spectators, if they are injured in the course of a sporting event.
Case: SMOLDON V WHITWORTH [1997] PIQR 133

FACTS: The plaintiff suffered a broken neck, after a scrum collapsed during a rugby match refereed by the
defendant. There were a high number of collapsed scrums in the game.
ISSUE: Could the defence of consent be used?
HELD: The defence of consent failed. The plaintiff may have consented to the ordinary risks of the game, but
not to the defendant's negligent failure to apply the rules intended to protect players from injury. Bingham
LCJ: '.. The level of care required is that which is appropriate in all the circumstances, and the circumstances
are of crucial importance. Full account must be taken of the factual context in which a referee exercises his
functions, and he could not be properly held liable for errors of judgment, oversights or lapses of which any
referee might be guilty in the context of a fast-moving and vigorous contest. The threshold of liability is a
high one. It will not easily be crossed...'.
C. It must be consent given prior to the negligence of D causing injury

or loss to the P.
Case: SLATER V CLAY CROSS CO [1956]

FACTS: P was walking along a narrow railway tunnel when she was struck by a passing train due to the
driver’s negligence.
HELD: Although P took the risk of danger from the running of the railway, she could not be said to have taken
the risk of harm by the driver’s negligence. Where knowledge of the danger is not such as to render the

lOMoARcPSD|15943327
accident solely the fault of the injured party, it is not a bar to the action but only a ground for reducing the
damages.
D. Exclusion of liability
The plaintiff may by contract expressly or impliedly agree to take the risk of D’s negligence and waive his right to
claim any remedy for injury or damage. In such case, the defendant has a complete defense, provided that the
contract is made without any coercion, duress or fraud and is not otherwise affected by any other vitiating factors.
Section 7 of the Control of Exemption Clauses Ordinance (Cap 71) provides

(1) A person cannot by reference to any contract term or to a notice given to persons generally or to particular
persons exclude or restrict his liability for death or personal injury resulting from negligence.
(2) In the case of other loss or damage, a person cannot so exclude or restrict his liability for negligence except
in so far as the term or notice satisfies the requirement of reasonableness.
(3) Where a contract term or notice purports to exclude or restrict liability for negligence a person's agreement
to or awareness of it is not of itself to be taken as indicating his voluntary acceptance of any risk.
However, CECO can only be used against a defendant who is in business.

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lOMoARcPSD|15943327
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damage as (fact pattern), and with that regarded willingly consented to the risk. As (fact pattern) explicitly shows
his voluntary acceptance of that risk out of his own free choice, he must have also agreed to waive his right of
action in respect of that damage.
2. ILLEGALITY – EX TURPI CAUSA NON ORITUR ACTIO

Where the plaintiff is party to illegal contract, it affords the defendant a complete defence.
However, it is not every illegality that is minor should attract the defence.
The illegal conduct must be sufficiently grave to warrant the court’s refusal of relief to the plaintiff
Unilateral illegality: P engaged in a criminal activity and injured through the negligence of some unrelated person
Joint illegal enterprise: One criminal was injured during the criminal enterprise due to another criminal’s
negligence.
The claimant's conduct must be very closely connected with the illegality. The defence will fail if such a close
connection is not present. The parties may be involved in illegal acts together.
‘No cause of action should arise from an illegal or flagrantly immoral act’- the court, being fountains of justice
should not come to the aid of, or reward criminals by awarding them damages for that would undermine the
‘integrity of the legal system’ itself.
- not confined to cases where P’s conduct is criminal in nature, it also extends to cases where the conduct of P
is grossly immoral.
Four tests are applied by the court:
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Case: CHUNG MAN YAU & ANOR V SIHON CO LTD [1997] - hawking
FACTS: the appellant made a living by hawking but he had no licence for it. He hawked at his 85-year-old
godmother’s pitch, who held a hawker’s license, but who was too old to hawk. The appellant and his wife were
10

lOMoARcPSD|15943327
walking along a pavement in Kowloon when part of D’s concrete balcony fell, striking them. The appellant
sustained serious injuries.
ILLEGAL ACT: the appellant’s conduct was illegal, being contrary to S83B of the Public Health and Municipal
Services Ordinance- all hawking is illegal unless done under a license.
ISSUE: Whether the appellant could claim his loss of income from illegal hawking caused due to his injuries for
which the respondent was responsible.
HELD: He should not be deprived of the compensation to which he would be otherwise entitled unless the
occupation is in itself against the public good. I) The appellant’s hawking was being carried out by deceiving the
authority and was a sham, but the legislation gave no indication that an illegal hawker should be disentitled from
recovery for personal injuries caused by a person’s negligence. Ii) PHMSO was regulatory in nature. Selling itself
was not an illegal activity.
Case: YIM TAT FAI V ATTORNEY GENERAL [1986] –suicide, no suicidal tendency shown
FACTS: P attempted to take his own life by hanging himself in his cell. The duty officer saved his life by hanging
himself in his cell. His life was saved but he suffered irreparable damage to the brain. No evidence was given to
suggest that P was of suicidal tendencies when he attempted to commit suicide.
HELD: Although an attempt to commit a suicide was not a crime, the defense of ex turpi causa could still be
applied as it would be against the public conscience to allow ‘a person who willfully injures himself whilst of
years of discretion and in his sense, by any means should not be able to lay the blame at the door of another’.
Compa
rewithKirkham’sca
se
-t
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ai
nti
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sc a
sewasofas oundmind(Kir
k:Phadauns ndThec
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Case: KIRKHAM V CHIEF CONSTABLE OF GREATER MANCHESTER [1990]- suicide, suicidal tendency
shown
FACTS: P’s husband who had suicidal tendencies was taken into custody by the police. The police knew that he
was a suicide risk, and had made attempts to commit suicide before. Subsequently, the police transferred P’s
husband to the prison authority but the police failed to inform them about the suicide risk of the P’s husband, who
then committed suicide.
HELD: defense of ex turpi causa failed and P recovered damages against the police for their negligence.
Followed by Reeves v Commissioner of Police of the Metroplis.
The court sometimes taken into account of the illegal activities of the plaintiff and reduces his damage
Re
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on
11

lOMoARcPSD|15943327
 si
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Case: TSANG SIU HONG V KONG HOI FOR & ANOR [2003]
FACTS: P took 3 months’ unpaid leave from his employment in the Mainland and came to Hong Kong on a
visitor permit. He was prohibited from obtaining any employment. However, a day after his arrival, he obtained
employment with the Ds at a rate far in excess of that he was receiving in Mainland. Both P and Ds were aware
that P’s employment was unlawful in nature, being contrary to S41 of Immigration Ordinance. There was an
accident at the D’s premises in which P sustained a head injury.
ISSUE: Whether P was entitled to recover damages for the loss of income consequent upon an injury negligently
caused by another person.
HELD: Awarded P damages in accordance with what P would have earned in his lawful Mainland employment
(not in Hong Kong) as a result of his injuries, which was his real loss.
“It seems to me that the ordinary right-thinking Hong Kong citizen would regard it as unfair for P to be deprived
of compensation…the same ordinary right-thinking Hong Kong citizen would be offended by the notion that P
should profit by the compensation.”
Economic loss suffered as a consequence of his own criminal act
Case: GRAY V THAMES TRAINS LTD [2009]

FACTS: a train accident was caused due to D’s negligence. P suffered a minor physical injury but developed a
serious psychiatric condition. He attacked and killed a man and was convicted of manslaughter. There was a
causal connection between the tort and the killing.
HELD: P could not recover loss of earnings after his arrest and general damage for his detention, conviction and
damage to reputation, as they were all claims for damage caused by the lawful sentence imposed upon P for
manslaughter.
“You cannot recover compensation for loss which you have suffered in consequence of your own criminal act.”
(2) Whether reliance on the illegality is necessary for the plaintiff’s claim;
Where the plaintiff’s claim is not founded on an illegal or immoral act, that is, it can be proved without
reliance upon such an act or has no causal connection with illegality, the defense of ex turpi causa is likely
to fail.
Case: TINSLEY V MILLIGAN [1994]

FACTS: D claimed an equitable interest in the property. The property was purchased by both P and D, but
12

lOMoARcPSD|15943327
was registered in the sole name of P so as to defraud the Department of Social Security.
HELD: D could recover the equitable interest in the property despite her involvement in illegal conduct
provided she did not rely on the illegal transaction to plead her claim.
(3) Whether the plaintiff’s conduct is causally related to the tort; and
For the defense of ex turpi causa to succeed, it must be established that the plaintiff’s injury was connected
with his illegality.
Not related:
Case: MILLS V BAITIS [1968]
FACTS: P was injured as a result of D’s negligence. He claimed damage against D in respect of personal
injuries, including damages for loss of earnings as a motor automobile engineer. P was conducting his
business from his residence. Motor repairing was not a permitted use of residential premises under the
planning legislation.
HELD: such legislation was no bar to P’s recovery. There was no causal connection between those unlawful
acts and the negligence. The provision in the Town and Country Planning Act 1961 is directed only at the
place where the work was carried out, and gives no indication of an intention to disentitle an offender against
the provisions of the Act from recovering compensation in full for personal injuries caused by that
negligence.
Related:
Case: Vellino v Chief Constable of the Greater Manchester Police [2001]
FACTS: P had been arrested several times in the past. Often when the police came to arrest, he would jump
from the window to escape arrest. His propensity of doing so was known to the police. In 1994, P was
arrested by immediately afterwards, he jumped from a window and injured himself. He sued the police. His
argument was that police were under a DOC to prevent him from sustaining foreseeable injuries while
attempting to escape from custody.
HELD: It would be absurd to impose a DOC on the police. “To suggest that the police owe a duty to prevent
the criminal from escaping, and that the criminal who hurts himself while escaping can sue the police for the
breach of that duty, seems to me self-evidently adsurd.
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lOMoARcPSD|15943327
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(4) The possibility of determining the standard of care.

In this case, defense of illegality is likely to prevent the claim as the claimant was knowingly engaged in an
unlawful enterprise at the time he was injured as (case pattern).
SUPPORTING CASES:
CASE: Pitts V Hunt [1990] 3 ALL ER 344

FACTS: The plaintiff was severely injured in a motorbike accident, when travelling as a passenger. The
plaintiff knew that the driver, who died in the accident, was drunk, uninsured and did not have licence.
HELD: The court found that the parties were engaged in joint illegality and therefore, the defence applied.
CASE: Revell V Newbery [1996] QB 567

FACTS: The plaintiff was shot by the defendant when he was trespassing on his allotment.
HELD: The defence of illegality failed because the defendant had used excessive force which was completely
disproportionate to the plaintiff's conduct.
CASE: Stone & Rolls V Moore Stephens [2009] UKHL 39
FACTS: The defendants had negligently audited the claimant's books. However, the claimant had been
committing fraud.
HELD: The defence of illegality succeeded as the claimant had been acting fraudulently.
CASE: Gray V Thames Trains [2009] UKHL 33

FACTS: The claimant was severely injured in a train crash caused by the defendant's negligence.
Subsequently the claimant suffered a mental breakdown and killed another person. The claimant was detained
and sought damages from the defendant for loss of earnings.
HELD: The defence of illegality was successful. It would be contrary to public policy to allow the claim, as a
claimant should not be able to recover for damage which is a consequence of his own criminal conduct.
Lord Hoffmann: '.. there is no dispute that there was a causal connection between the tort and the killing. The
evidence which the judge accepted was but for the tort, [the claimant] would not have killed. But the rule of
public policy invoked in this case... is based upon the inconsistency of requiring someone to be compensated
for a sentence imposed because of his own personal responsibility for a criminal act...'.
CASE: Griffin V Uhy Hacker Young & Partners [2010] EWHC 146
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lOMoARcPSD|15943327
FACTS: The claimant was convicted and fined for the strict liability offence of trading as a liquidated
company. The claimant sought damages from the defendant for allegedly giving negligent advice regarding
this matter.
HELD: The defence was successful on the basis that the claimant could not recover for damage caused by his
own illegal act.
It would be contrary to public policy therefore the claim would be rejected on the basis of illegality.
3. CONTRIBUTORY NEGLIGENCE
Definition of contributory negligence: P’s own want of care which directly and materially contributed to his
injury, This means that the plaintiff was a co-author of his own misfortune.
Partial defence of contributory negligence: may be raised by defendant (D) if claimant (C) has acted carelessly
& this contributed to C's damage
• if third party contributed to damage they will be joint tortfeasors
• statutory provision covering law of contributory negligence
In this case, level of damages could be reduced under the virtue of LARCO s 21 S 21(10) when the claimant’s
failure to exercise reasonable care for his own safety constituted to contributory negligence.
Principles in establishing Contributory negligence

i) P’s conduct fell below the Standard of Care
The focus should be on the plaintiff’s standard of care, not to the defendant’s breach of duty. The question is
whether the plaintiff has taken a reasonable precaution to prevent any foreseeable harm to himself.
Criteria
 The plaintiff’s injury belonged to that category of risk to which he himself contributed
 Whether the plaintiff has taken a reasonable precaution to prevent any foreseeable harm to himself
The plaintiff is required to conform to the standard of a prudent man:
“A person is guilty of contributory negligence if he ought reasonably to foresee that, if he ought reasonably to have
foreseen that, if he did not act as a reasonable, prudent man, he might be hurt himself; and in his reckonings he must
take into account the possibility of others being careless.”
Jones v Livox Quarries Ltd

 The plaintiff, in breach of the defendants’ (his employer’s) instruction, was riding on the back of a
‘traxcavator’
 Another vehicle of the defendants negligently ploughed into the ‘traxcavator’
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lOMoARcPSD|15943327
 The plaintiff was crushed and suffered injury

The trial judge said that the risk to which the plaintiff had exposed himself was that of being throw off and
no other risks. The CA held that being crushed in collision was also one of the risks to which the plaintiff
had exposed himself, namely, that the injury was within the scope of the risks created by the plaintiff’s own
negligence:
 ‘A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he
did not act as a reasonable, prudent man, he might be hurt himself; and in his reckonings (估計)
he must take into account the possibility of others being careless’
Sayers v Harlow UDC

 The plaintiff was locked in a public lavatory as a result of the defendant’s negligence
 As no help was forthcoming, she attempted to climb out, but fell when she set her foot on the toilet-roll
holder which gave way
The court held that the defendant was negligent but the plaintiff was also negligent in that the manner chosen
by her to rescue herself was unreasonable and the damages payable is reduced by 25%.
The plaintiff’s standard of care is an objective one and corresponds to the defendant’s standard of care in
negligence which is judged by the group or class to which the plaintiff belongs.
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Reeves v Commissioner of Metropolitan Police [2000] 1 AC 360
Legal reasoning - Police had duty of care to look after C's welfare whilst in custody. C killed himself.
Court - C was contributed to negligence by deliberately harming self so damages were reduced by 50%.
Exception to the rule that deliberate acts of a person of sound mind taking advantage of D's negligence
would destroy causative link.
D's husband, X, was arrested by P and known to be a suicide risk (although perfectly sane). Because the glass
was missing from the spy hole, X was able to thread his shirt through it, producing a cord with which to
strangle himself. D, the widow sued P. HL allowed her claim for negligence but reduced it by 50% for
contributory negligence.
Lord Hope: "Fault" within the 1945 Act is split into two limbs: "The first limb, which is referable to the
defendant's conduct, comprises various acts or omissions which give rise to a liability in tort. The second
limb, which is referable to the plaintiff's conduct, deals with acts or omissions which would, but for the Act,
have given rise to the defence of contributory negligence. The first is directed to the basis of the defendant's
liability, while the second is concerned with his defence on the ground that the damage was the result partly
of the plaintiff's own negligence."
As a general rule, a person to whom a duty of care is owed is generally under a corresponding duty to take
reasonable care for his own safety which, if he intentionally breaches, he may be incapable of claiming any
damages. However there are cases, as here, where the duty of care extends to taking reasonable care to
prevent someone causing injury to themselves e.g. young people, the insane etc. There was no break in the
chain of causation because the wrongful act (leaving a gap in the spy hole) created the opportunity for X to
make a cord, of which suicide was the foreseeable consequence.
Standard of care of certain classes of persons

A. Children
General Principle: the younger the child the less likely contributory negligence would apply
Criteria
i. The age of the child - A judge should only find a child guilty of contributory negligence if he
or she is of such an age as reasonably to be expected to take precaution to his own safety
ii. The circumstances of the case and the knowledge by the particular child of the dangers to
which the defendant’s negligence has exposed him
iii. The question is whether an “ordinary child” of the claimant’s age could be expected to have
done any more than the claimant.
17

lOMoARcPSD|15943327
i. The reasonable person of the relevant age
Gough Thorne: It would be difficult to hold a very young child of two or three years contributorily
negligent
 The plaintiff’s age is a highly material factor
 In considering whether a child has taken reasonable care for his own safety regard must be had to the age of
the child, the circumstances of the case and the knowledge by the particular child of the dangers to which
the defendant’s negligence has exposed him…
Case: YUEN YAN TING V YAN YAN MOTORS LTD & ANOR [2001]
HELD: a 3-year-old girl, who was injured in a road accident, could not reasonably be expected to take
precaution for her own safety and no blame could be attached to her.
Case: GOUGH V THORNE [1966] 1 WLR 1387

FACTS:
• P, 13 yr old, injured when hit by a car
• P waiting to cross road, lorry stopped to let her cross, D was overtaking & hit P
HELD: Defence of contributory negligence failed: P reached standard of care expected of 'ordinary' 13-year-
old in circumstances
 Considering whether a girl of 13.5 years could be guilty of contributory negligence, said that ‘it depends
on whether any ordinary child of 13.5 would be expected to have done any more than this child did
 * ordinary (not a paragon 典範 of prudence / a scatter-brained child)
Cheung Yuk Chun v Mitsui Construction

-A 9-year-old girl was held liable for 15 percent of the total damages that could be awarded
Case: MORALES V ECCLESTON [1991] RTR 151

FACTS:
• P, 11 yr old, injured when hit by a bus
• P playing football on pavement & did not look before going to retrieve ball from busy London road
HELD:
• 75% contributory negligence against P: reckless as to his own safety, even for his age
• some cases involving child Cs, D may argue negligent parents are joint tortfeasors
Case: CHEUNG KAM CHEUNG V SIU CHICK POR & ANOR [1978]
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lOMoARcPSD|15943327
HELD: a 13-year-old boy should have known to look before stepping out into the road, he was 50% liable.
Sometimes, the court also considers the economic costs to the defendant of preventing any untoward accidents.
Case: WONG SHEK HUNG V PENTECOSTAL LAM HON KWONG SCHOOL [2001]
The court considers the economic costs to the defendant of preventing any untoward accidents
FACTS: P was a student of the defendant school. The entrance to her classroom was through a set of double
doors. The doors were controlled by a spring lock system; a door would close by itself if open and would
slow down as it reached a closing point. P grabbed the edge of the door, pulling it away from its locked
position. She was at the same time trying to slow the speed of the closing door by slipping a hand from the
edge of the door and placing it on the inside surface of the door. Her finger tip remained extended beyond
the edge. She acted that way because she wanted to avoid any loud noises that could have disturbed the
class. The spring lock system was malfunctioning; instead of closing slowly, the door closed rapidly and
trapped the plaintiff’s finger between the 2 doors and severed the tip of the finger.
ISSUE: Whether the school as an occupier had breached its duty towards P and whether P was
contributorily negligent.
HELD: There was no contributory negligence. Given P’s young age, the defective condition of the hinge,…
the injury could easily and inexpensively been avoided by the defendant, I could not find any
blameworthiness on the part of P. ‘The injury could easily and in expensively been avoided by the
defendant, I could not find any blameworthiness on the part of the plaintiff’
B. Physical infirmity
The law does not expect the same standard of behavior from an infirm person as it does from a person of
normal health and strength. It gives due allowance to his age and physical condition.
Case: DALY V LIVERPOOL CORP [1939]

HELD: The degree of contributory negligence of a pedestrian who is old and infirm may be judged
by taking into consideration factors such as he cannot move fast or make quick judgement on the
spot or spur of the moment.
A higher duty owed to blind pedestrians (Hayley v London Electricity Board) or feeble minded persons
whose disabilities are known or ought to have been known to the defendants (Lantham v R Johnson and
Nephew)
C. Emergency
The standard of care may be relaxed and the finding of contributory negligence less likely (Tam Sau Fong v
Sheng Kung Hui Diocesan Welfare Council)
D. Rescuers
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lOMoARcPSD|15943327
Rescuers are encouraged: standard of care applied is a reasonable rescuer, taking account of emergency
nature of situation
Case: BAKER V TE HOPKINS [1959] 1 WLR 966

FACTS: Doctor killed when he entered a well to rescue D's workers
HELD: Contributory negligence defence failed: situation was dangerous but V's conduct not amount to
contributory negligence
Willmer LJ: '.. [the defendant] would have to show that the conduct of [the plaintiff] was so foolhardy as to
amount to a wholly unreasonable disregard for his own safety... [the plaintiff] is entitled to be judged in the
light of the situation as it appeared to him at the time, ie. in a context of immediate and pressing emergency...'
 C's conduct will only amount to contributory negligence if it demonstrates 'wholly unreasonable
disregard for his own safety'
E. Dilemma cases
Dilemma situations arise when C placed in imminent danger by D's negligence
Case: JONES V BOYCE (1816) 1 STARK 493

FACTS:
• P broke leg after jumping from D's coach
P jumped after realising coupling mechanism had broken & anticipated coach crash, in fact it did not
HELD: Contributory negligence defence failed: P acted reasonably in perilous situation.
Lord Ellenborough: '.. I place a man in such a situation that he must adopt a perilous alternative, I am
responsible for the consequences...'
Case: ADAMS V LANCASHIRE & YORKSHIRE RAILWAY CO (1869) 4 LR CP 739

FACTS: P injured by falling from D's moving train. P was attempting to close the door, but he had room to sit
away from open door & train due at next stop shortly
HELD:
• contributory negligence defence succeeded: P taken unnecessary risk
• distinguished from Jones v Boyce (1816) as P not in immediate danger
• courts will determine whether degree of inconvenience or danger justified the action C takes to avoid risk
F. Employee (Workers)
An employee undertaking activity in the course of his employment owes a duty of care to himself and will be
20

lOMoARcPSD|15943327
liable to a reduction of any award if found to be in breach. If injury at work, caused partly by C's carelessness &
partly due to employer's fault: circumstances of work & employer's statutory responsibilities considered.
(1) The level of skills and experience the employee has attained: the higher the level of his skills and
experience, the more he is liable to look after himself
(2) The degree of pressure imposed upon an employee by his employer to maintain or increase output at the
expense of caution; obviously the greater the pressure, the less the employee is to blame
(3) The degree of familiarity the employee has with that activity which puts his own safety at risk
(4) The effect of allowing the defense of contributory negligence on the safety of employees at a workplace.
A worker who consents to work or continue to work in an unsafe working place should not normally be held
contributorily negligent. Otherwise, it might encourage employers to be less careful and their insurers to be
less eager to insist on compliance with industrial safety.
Breach of statutory duty by employer

 Where the defendant employer is in breach of a statutory duty, the plaintiff’s standard of care for his own
safety is usually not high.
 Where the employer’s liability incudes a breach of statutory obligations intended to safeguard his
employees, the level of care which the employee owned to himself is generally reduced.
It is difficult for an employer to plead contributory negligence to an action by an employee because of the
stringent and meticulous duties imposed on the employer by statutory law to take care to ensure that the health
and safety of employees is not endangered. The allowance of defense of contributory negligence might
undermine the intention of the legislation sometimes and thus it is strictly controlled.
Case: CASWELL V POWELL DUFFRYN ASSOCIATED COLLIERIES LTD [1939] 3 ALL ER 722
Lord Atkin: '.. the care to be expected of the plaintiff in the circumstances will vary with the circumstances;
and that a different degree of care may well be expected from a workman in a factory or a mine from that
which might be taken by an ordinary man not exposed continually to the noise, strain and manifold risks of
factory or mine...'
General Cleaning Contractors Ltd v Christmas

Even the risk is obvious that the employee should be able to notice that  Employer is still liable
‘Where a practice of ignoring an obvious danger has grown up, I do not think that it is reasonable to
expect an individual workman to take the initiative in devising and using precautions’
Leung Lai Yin v Yeung Kei Chi

 low standard of care is applied to employees
 the fact that the employee contributed casually to the accident by his own momentary ( 短暫的 )
inadvertence ( 疏忽 ) or lack of care may in the context of a repitive, distracting or fatiguing work
21

lOMoARcPSD|15943327
environment be regarded as an ‘exclusable lapse’

 Not contributorily negligent at all
*Where the employer has been in breach of a statutory duty and the employee alleged to have contributed
to his own injuries, the employee’s contributory negligence must be determined by taking into account the
policy of the statue
Chow Cheung Ching v Right Base Construction & Engineering Co Ltd & Anor
 The defendants were in breach of their statutory duty in that they asked the plaintiff to cut some
wooden strips with an unguarded electrical circular saw
 The plaintiff got injured when he lost his balance and leaned forward
 At the time of the accident, the plaintiff was quite tired by the long hours of work
 The court held that the slip of the foot of the plaintiff was at most a momentary inadvertence and he
should not be liable for any CN
i) Breach of statutory duty

Case: CHOW CHEUNG CHING V RIGHT BASE CONSTRUCTION & EINGINEERING CO LTD &
ANOR [2002]
FACTS: Ds were in breach of their statutory duty (Factories and Industrial Undertaking (Woodworking
Machinery) Regulation) in that they asked P to cut some wooden strips with an unguarded electrical circular
saw. P lost his balance and leaned forward. The glove on his left hand was caught by the moving saw and his
left index and middle fingers were cut by the saw. P was quite tired by the long hour of work. He was not in
the carpentry trade, but had learnt how to use the saw by observation and experience and he had not been
given any instructions as to the saw’s operation and safety.
HELD: The slip of the foot of P was at most a momentary inadvertence and he should not be liable for any
contributory negligence.
Similar reasoning:
Case: MAK WOON KING & ANOR V WONG CHIU [2000]
HELD: a breach of statutory duty by an employer is a substantial cause of injury to an employee, the fact that
the employee contributed causally to the accident by his own momentary inadvertence, or lack of care may in
the context of a repetitive, distracting or fatiguing work environment be regarded as an ‘excusable lapse’ and
not as contributory negligence at all”
Where the employer has breached a statutory duty and the employee alleged to have contributed to his own
injuries, the employee’s contributory negligence must be determined by taking into account the policy of the
statute.
Case: CHEUNG HEI KWONG V KWONG KEY CONSTRUCTION & ENGINEERING LTD [2003]
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FACTS: P employee slipped on the leather straps and injured himself. D employer, in breach of the statutory
Construction Sites (Safety) Regulations (Cap 59I), had failed to ensure that the ground was clear of leather
straps.
HELD: Even if P did not pay full attention to what he was doing, this did not absolve D from liability.
Case: KWAN SHEK SANG V CHAN KAM WAH [2003]

FACTS: D employer was sued for breach of reg 5 of the Factories and Industrial Undertaking (Protection of
Eyes) Regulations. P was using a portable metal grinder to cut iron bars without wearing googles, when a
piece of metal fragment flew into his right eye and seriously injured it. D had not provided any formal eye
protection despite a request from P. P brought some goggles for himself, but after 2 days’ use, the lens of the
goggled became scratched by metal fragments and the goggles then went missing. P therefore was not using
any form of protection when the accident happened.
ISSUE: whether P was contributorily negligent.
HELD: No. Quite apart from the breach of its statutory duty, D was also in breach of its common law duty to
P which was to ensure that not only goggles were provided but also that they were used, and if necessary, by
strict orders followed by resoanble supervision.” No goggles having been provided, P cannot be said to have
been negligent in not using non-existing goggles.
However, it must not be supposed that an employee can never be liable for his own negligence where
there is a breach of statutory duty by employers.
Case: CHAN YU CHAU V FONG ON CONSTRUCTION & ENGINEERING CO LTD & PRS [2002]
FACTS: P was a master formworker using a bench-type circular saw to cut a piece of wooden board,
when he slipped on a discarded plastic tube end, fell forward and his right hand came into contact with
the blade. P sustained serious injuries. The accident would not have occurred but for the breach of
statutory duty under reg 10(4)(b) of the Factories and Industrial Undertakings (Woodworking
Machinery) Regulations (Cap 59G), that is, failure to provide an easily adjustable guard for the cutting
edge of the saw, and reg 6, that is, allowing the floor to become slippery. P’s damage were reduced by
15 % due to contributory negligence- continuing to work with debris present on the floor and failing
to clear it away.
ii) Fallen below the reasonable standard of his professions

P’s conduct was a cause of the accident leading to the injuries and/or a cause of the worsening of the
injuries
Case: Jones v Livox Quarries [1952] 2 QB 608
Legal reasoning – P contributed his own injuries: reasonably foreseeable his carelessness exposed him to
risk of injury - Negligence of driver meant C had to jump from coach - he broke his leg.
Lord Ellenborough - If I place a man in a situation that he must adopt a perilous alternative, I am responsible
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for the consequences.

The court held that the foreseeability of the precise manner of injury was not necessary to prove causation
FACTS: P, in breach of Ds’ instruction, was riding on the back of a ‘traxcavator’. Another vehicle of D
negligently ploughed into the ‘traxcavator’. P was crushed and suffered injury.
HELD: Trial judge: the risk to which the P had exposed himself was that of being thrown off and no other
risks.
CA: Being crushed in collision was also one of the risks to which P had exposed himself, namely, that the
injury was within the scope of the risk created by the P’s own negligence. The damages P could have got had
he not been acting carelessly would be reduced under the 1945 Act. (The result would have been otherwise if P
had been hit in the eye by a shot from a negligent marksman or burnt by the vehicle set on fire by D. )
Denning LJ: "A person is guilty of contributory negligence if he ought reasonably to have foreseen that,
if he did not act as a reasonable, prudent man, he might be hurt himself; and in his reckonings he must
take into account the possibility of others being careless."
Staples v Gypsum Mines Ltd

 The deceased was a miner
 The roof of the mine was in a dangerous state
 The defendant advised the deceased and a fellow employee, Dale, to bring the roof down
 The deceased and Dale were unsuccessful in doing so and despite the potential danger of the roof
collapsing, they commenced work
 The deceased was killed when the roof of the mine was in a dangerous state
 The house of Lords agreed that it was and that the deceased would not have gone ahead with the work
without Dale
 The deceased was held to be 80% liable for the accident
Lau Tak Lung v Ngan Guen Ming & Anor

In a fatal road accident, the deceased was hit by a bus after he had crossed two-thirds of a four-lane road
-The court held that since the deceased must have been aware if the oncoming traffic, he had contributed to
the accident and his conduct had a causative effect on his injury
*Caswell v Powell: If the plaintiff were negligent but his negligence was not a cause operating to produce the
damage, there would be no defence
 20% contributory negligence: P decided to ride dangerously on vehicle, despite warnings
Case: CHAN KING WAN & ANOR V HONEST SCAFFOLD GENERAL CONTRACTOR CO LTD & ANOR (NO 2)
FACTS: 2 scaffolders died when a partly constructed scaffold outside a bay window came apart and fell onto the street.
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The cause for the detachment was the fracturing of the wire coils that attached the scaffold to the bay window
anchorage points. Neither of the deceased was wearing a safety belt. Yet, there was no place to which a safety belt
could be safely anchored. The deceased’s estate claimed against the 1 st D(subcontracted to erect the scaffolding) and 2 nd
D (principal contractor responsible for the construction site) on the grounds of breach of statutory duty (Construction
Sites (Safety) Regulations).
HELD: 2nd D was liable and the deceased was contributorily negligent. (40%)
There was substantial contributory negligence by the deceased. They were mature men of very considerable previous
experience in scaffolding. It was their specialization and had been for many years. They were not lowly employees in
the company constrained by their position not to complain or to ask the principal contractor to erect life lines. They
could have done so and there was no reason to suppose that such a request would have prejudiced the continued use by
2nd D of their company’s services.
Case: WHEELER V COPAS [1981]

FACTS: P, a bricklayer, borrowed a ladder from a farmer. While he was carrying some heavy equipment, the ladder
gave way and P fell, injuring himself.
HELD: As he was a bricklayer, he ought to have realized that such a ladder was not safe enough for carrying heavy
things. Thus, his damages were reduced by 50% due to contributory negligence.
Case: MA KAM YEUNG V FU HAY KIN & ORS [1998]

FACTS: P was injured while working with a bench-mounted circular saw which was not fitted with a guard and which
was larger than necessary for the work required.
HELD: P had a wealth of experience which he brought to the job and was alive to this. The timber was knotty but this
was not uncommon. By his experience, P would have been conscious of the potential and the actual difficulty of sawing
it. D was negligent but P was also responsible for the accident.
G. Occupiers
Case: Hsu Li Yun v Incorporated Owners of Yuen Fat Building [2000]
FACTS: The P’s husband had designed and installed an unsafe plumbing system on D’s premises. While he was
repairing the system, he was electrocuted. D owner of the premises was also negligent in that D had failed to
check whether the work was done properly.
HELD: The deceased and D jointly caused the deceased’s death and reduced P’s damages by 75%.
H. Apportionment and reduction of damages
In LARCO, it enables the court to reduce the amount of the damages payable to the plaintiff by taking into
account the degree of the plaintiff’s own culpability, to such extent as the court thinks just and equitable.
Apportionment: LARCO 21 (2): It requires the court to first find the total amount of awardable damages
regardless of the plaintiff’s fault, and then proceed to apportion the damages according to the degree of fault of
the respective parties.
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LAW AMENDMENT AND REFORM (CONSOLIDATION) ORDINANCE

Section 21 of the LARCO
(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
(4) Where any person dies as the result partly of his own fault and partly of the fault of any other person or
persons, and accordingly if an action were brought for the benefit of the estate under section 20 the
damages recoverable would be reduced under subsection (1), any damages recoverable in an action under
the Fatal Accidents Ordinance (Cap 22) shall be reduced to a proportionate extent. (Amended 40 of 1986
s. 4)
(4A) Where an action is brought under section 20C for the loss of the society of another in circumstances
where any damages recoverable by that other in proceedings brought by him would be reduced under
subsection (1) of this section, any damages awarded for such loss shall be reduced to a proportionate extent.
 It requires the court to first find the total amount of awardable damages regardless of the plaintiff’s fault,
and then proceed to apportion the damages according to the degree of fault of the respective parties.
 It makes it necessary for the courts to reduce the plaintiff’s damage for his contributory negligence by
some proportion. (The damages ‘shall be reduced’). HOWEVER, Hong Kong courts have taken the view
that they will not apportion the amount of damages unless one of the parties is at least responsible
for 10% of the damage.
Case: Stapley v Gypsum Mines [1953] AC 66

P and X were mine workers and tried to fix a dodgy roof and were told not to do any work under it until it
was fixed by the owner, D. When they couldn't fix it, they jointly decided (neither was in charge of the other)
to continue their work, which meant P (but not X) going back under it, and it collapsed, killing P. X's actions
made the company liable. The HL held that P was 80% responsible and D was 20% responsible. Therefore P's
award was reduced by 80%.
Lord Oaksey: It was uncertain whether P would still have worked under the roof had X not concurred in the
joint decision and therefore it is too speculative to reach the conclusion that he would not, which would raise
the percentage for which D would be liable (Surely therefore it is also too speculative to conclude that he
would not. What is the justification for erring on the side of D?).
Lord Reid: To establish causation we should ask "was D's fault so much mixed up with the state of things
brought about by P that in the ordinary plain common sense of this business it must be regarded as having
contributed to the accident." Here it was, there being no "sufficient separation of time, place or circumstance
between them to justify its being excluded".
Lord Tucker: Only P returned to work under the roof and therefore he is more at fault than X
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Case: JOHNSON V TENNANT BROS LTD 1954, UNREPORTED

Small percentages of apportionment ought not to be made & contribution of less than 10% should be
disregarded.
Policy consideration
So Chung Kwong v Ho Kuen & Anor
 The defendant employer did not provide a safe system of work.
 The plaintiff employee, however, was also negligent
 The plaintiff, without any pressure or forced by the defendant, carried heavy wooden boards without
assistance, and in that process suffered serious back injuries
 Given that the plaintiff was an experienced person in the field, he should have assessed the board’s
weight, and the risk of carrying them single handedly in a confined space
 The court found him contributorily negligent to the extent of 30%
 The plaintiff must have been aware of the risks and must share the blame for the consequences
Lilley v Hong Kong and Kowloon Ferry Ltd

The court held that the deceased was 50% to blame as he had failed to take adequate and reasonable care
for his own safety
For professionals,
Hondon Development Ltd v Powerise Investments Ltd
Public policy requires that such a professional’s claim of contributory negligence by the client may only
be successfully raised in very limited circumstances
*P’s contributory negligence is assessed comparatively against D’s negligence to decide an appropriate level of
apportionment
I. Burden
• D must prove C failed to take reasonable care of himself & this contributed to C's loss
If the plaintiff were negligent but his negligence was not a cause operating to produce the damage, there would
be no defense.
Case: SMITHWICK V HALL & UPSON CO (1890) American case

FACTS: P was warned against going to the east end of a platform because it was covered with ice and there
were no protective railings. P disobeyed the warning. While he was standing in that part of the platform, a
wall collapsed on him causing him injury.
HELD: The defense of contributory negligence should fail. P’s injury resulted not from the hazard caused by
the presence of ice (resulting in P’s slipping) or the absence of protective railings (resulting in P falling). Any
person who happened to be there would have been injured.
Case: ST GEORGE V HOME OFFICE [2008] EWCA CIV 1068
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FACTS: C suffered permanent severe injury after falling from bed in D's prison, on first night, after epileptic
seizure. D knew C prone to epilepsy as result of drug & alcohol withdrawal, but allocated C high bunk bed
HELD: contributory negligence defence failed: C's addictions not the cause of his injury
Dyson LJ: '.. claimant's fault in becoming addicted to drugs and alcohol... was too remote in time, place and
circumstance and was not sufficiently connected with the negligence of the prison staff... to be properly
regarded as a cause of the injury...'
(P’s addiction was not a cause of his injury. His addiction was part of his past medical history and was too
remote)
Road traffic accidents

• causal link must be established between C's careless conduct & his loss
• C may be passenger who did not contribute to accident but through carelessness did contribute to his
injuries
i) Seat belts
passenger's deciding not to wear seat belt may amount to contributory negligence, even prior to regulations
making it compulsory
Case: Froom v Butcher [1976] QB 286

Legal reasoning - C was injured when car struck by D's. Injuries exacerbated by C choosing not to wear a
seatbelt. Lord Denning MR - C is guilty of contributory negligence if he ought reasonably have foreseen that
if he didn't act as a reasonable, prudent man he might be hurt.
FACTS: P injured in car accident, caused by D's negligence, but P not wearing a seat belt
HELD:
Court of Appeal: general rules for apportioning responsibility where C did not wear seat belt:
if wearing a seat belt would have made no difference: 0% reduction in damages
if wearing a seat belt would have made the injuries less severe: 15% reduction in damages
if wearing a seat belt would have avoided injury: 25% reduction in damages
• courts reluctant to hear arguments about potential worse injuries (if seat belt worn)
Case: STANTON V COLLINSON [2010] EWCA CIV 81

• D must show C not wearing seat belt made 'difference' to loss suffered contributory negligence unlikely to
apply to people exempt from wearing seat belts (taxi drivers, reversing drivers & medically certified)
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Case: CHAN WING KIN & ANOR V FONNIE CO LTD & ANOR [1983] Hong Kong case
FACTS: P was a pregnant woman travelling in the front seat of a car. She was injured in an accident caused
by the negligence of the defendant. At the time of the accident, she was not wearing a seat belt.
HELD: There was no fault on her part because she was pregnant and could have been injured even if she
chose to wear a seat belt. Although the Road Traffic Regulation reg 5A makes it compulsory for passengers in
the front seat to wear a seat belt and does not recognize any exceptions in favor of pregnant women, the mere
failure to wear a seat belt cannot be regarded as evidence of contributory negligence unless such failure
on the part of the plaintiff has a causal link with the injury.
The CA decided in favour of the plaintiff holding that there was no fault on her part because she was pregnant
and could have been injured even if she chose to wear a seat-belt.
CASE: Leung Nai-wing v Hsing Kieng-shing [1985]

FACTS: P was travelling in D’s car when the car met with an accident. P was not wearing a seat belt. P was
thrown on to the windscreen and was injured.
HELD: the court did not allow the defense of contributory negligence because the defendant did not prove
that the car was fitted with seat belts or shown that the injuries would have been less severe had P worn a seat
belt.
Fitzgerald (1989)
Legal Reasoning - F crossed road on red light. He was struck by L's car and thrown into the path of P's car,
both had been negligent. Court - must split damages that would have been awarded to a non-negligent C
between the defendant and the contributory claimant.
Case: PATIENCE V ANDREWS [1983] RTR 447

Croom-Johnson J: '.. one cannot reduce the appropriate percentage of contributory negligence - that is to say -
the degree of blameworthiness - by investigating what injuries might have been, but were not, caused in
circumstances which did not arise. That is pure speculation...'
Ho Wing Cheung v Liu Siu Fun

 The first respondent suffered substanial facial injuries in a motorcar accident
 She was sitting in the front passenger seat but not wearing a seat belt
 The car was owned by her but driven by the second respondent
 It collided with the car driven by the appellant
 The court found the appellant negligent and the first respondent contributorily negligent and thus
reduced her damages by 20%
*A man of ordinary prudence travelling in a motorcar would take the precaution of wearing a seat belt
where one is available. Failure to do so might amount to CN
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Mc Ghee v Francis Shaw & Co Ltd

 In exceptional cases, where the passenger, knowing full well the bad driving habits of the defendant,
still deliberately refused to wear a seat belt
 The damages payable by the defendant could be reduced by 33%
ii) Crash helmets

• D must establish causal link between C's failure to wear crash helmet & his injuries
Case: O'CONNELL V JACKSON [1972] 1 QB 270

FACTS: P suffered head injuries in motorcycle accident, caused by D's negligence, but P not wearing crash
helmet
HELD: 15% reduction in P's damages for contributory negligence
Case: CAPPS V MILLER [1989] 2 ALL ER 333

Court of Appeal adopted same tariff for failure to wear crash helmet as laid down in Froom v Butcher [1976]
for seat belts.
iii) Intoxicated drivers

if C decides to travel as passenger in vehicle with driver he knows has been drinking, damages likely to be
reduced if he is injured in accident caused, at least partly, by driver's intoxication
Cs own drunkenness is not sufficient excuse for failing to take reasonable care of himself
iv) No lights or brakes

if C decides to travel as passenger in vehicle he knows has no lights or brakes, damages likely to be reduced
if he is injured in accident caused, at least partly, by lack of lights or brakes
In this case, the claimant failed to take care of his own safety in a way that at least partially caused the
damage that he suffered as he (negligent act). (Type of injury) is a foreseeable consequence of his own
behavior in (claimant’s behavior) which indicates that he would put himself at risk of suffering this injury or
would have increased the seriousness of this injury. He failed to recognize that he was jeopardizing his own
safety which fallen below the standard of care of an ordinary person.
The extent to which the claimant’s own behavior contributed to (his injury) and the relative blameworthiness
of both claimant and defendant for the injury sustained by the claimant are both high which therefore the
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lOMoARcPSD|15943327
scale of damage reduction should be in (proportion).
v) Crossing road dangerously
Case: LAU TAK LUNG V NGAN GUEN MING & ANOR [1998]
FACTS: There was a fatal road accident. The deceased was hit by a bus after he had crossed 2/3 of a four-lane
road.
HELD: since the deceased must have been aware of the oncoming traffic, he had contributed to the accident
and his conduct had a causative effect on his injury. (The conclusion will be the same where the P deliberately
runs across the road where other vehicles having a right of way are going on the road.)
Case: LEE CHAN WING V LEE WING PING [1990]

FACTS: P was pushing an unladen metal trolley on the road adjacent to the kerb. The road in question was single-track
but open to a two-way traffic. There was a lay-by or passing place to facilitate the passage of traffic but P went beyond
the passing place and was struck by D’s van from the opposite side. At the time of the accident, it was 6 o’clock in the
morning, the first streaks of dawn, the street light and the van’s headlamps were sufficient for D to see the trolley and P
from a reasonable distance and to prevent the accident.
HELD: Taking into account these factors, it was held that P did not contribute to this accident at all and D was to be
blamed 100%.
vi) Other cases
Case: HUSSAIN V LAM WAH CHAU & ANOR [2003]

FACTS: P was hit by a medium goods vehicle driven by the 1 st D when he was walking along a service road. The 1 st D
stopped his vehicle on the service road but the engine was still running. As P was walking between the gap of the two
vehicles, the 1st D drove his vehicle, injuring P.
1st D argued: he was negligent but P was contributorily negligent as he knew that the engine of D’s vehicle was on and
should have anticipated that 1st D would drive it off at any time. Yet, he chose to pass the narrow gap between the
vehicles and did not take alternative routes.
HELD: The gap between the two cars was about 3 ft to 4 ft wide. In all the circumstances, I find that the plaintiff acted
reasonably in walking where he did. I do not find him contributorily negligent. The 1 st D’s negligence, consisting
essentially of his failure to keep a proper lookout, was the sole cause of the accident. I hold D 100% liable.
4. EXCLUSION OR LIMITATION OF LIABILITY
… don wanna do
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Negligence Defense - This is specifically made for exam

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TORT LAW – NEGLIGENCE - DEFENSE

1. VOLENTI NON FIT INJURIA

A. Claimant's knowledge of the risk

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Case: MORRIS V MURRAY [1991] 2 QB 6

Case: BARRETT V MINISTRY OF HEALTH [1995]

Case: KIRKHAM V CHIEF CONSTABLE OF THE GREATER MANCHESTER POLICE [1990]

Case: REEVES V COMISSIONER OF POLICE OF THE METROPOLIS [2000]

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Case: GEARY V J D WETHERSPOON PLC [2011]

Case: TOMLINSON V CONGLETON BC [1990]

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Case: NETTLESHIP V WESTON [1971]

Case: DANN V HAMILTON [1939]

CASE: PITTS V HUNT [1990] 3 ALL ER 344

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ISSUE: Could consent be used as a defence?

Case: HAYNES V HARWOOD [1935] 1 KB 146

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ISSUE: Could consent be used as a defence?

Case: CUTLER V UNITED DAIRIES [1933] 2 KB 297

Case: BAKER V TE HOPKINS [1959] 1 WLR 966

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Case: WOODLEY V METROPOLITAN DISTRICT RAILWAY CO (1877) 2 EXD 384

Case: BOWATER V BOROUGH OF ROWLEY REGIS [1944] KB 476

Case: CORR V IBC VEHICLES [2008] UKHL 13

Case: IMPERIAL CHEMICAL INDUSTRIES LTD V SHATWELL [1965]

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Case: SMITH V BAKER & SONS [1891]

Case: SMOLDON V WHITWORTH [1997] PIQR 133

C. It must be consent given prior to the negligence of D causing injury

Case: SLATER V CLAY CROSS CO [1956]

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Section 7 of the Control of Exemption Clauses Ordinance (Cap 71) provides

However, CECO can only be used against a defendant who is in business.

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2. ILLEGALITY – EX TURPI CAUSA NON ORITUR ACTIO

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Economic loss suffered as a consequence of his own criminal act

Case: GRAY V THAMES TRAINS LTD [2009]

Case: TINSLEY V MILLIGAN [1994]

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(4) The possibility of determining the standard of care.

CASE: Pitts V Hunt [1990] 3 ALL ER 344

CASE: Revell V Newbery [1996] QB 567

CASE: Gray V Thames Trains [2009] UKHL 33

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Principles in establishing Contributory negligence

Jones v Livox Quarries Ltd

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 The plaintiff was crushed and suffered injury

Sayers v Harlow UDC

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Reeves v Commissioner of Metropolitan Police [2000] 1 AC 360

Standard of care of certain classes of persons

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