Chapter 14. General Defences

• Pages: 407-426

The two main general defences to actions in tort are contributory negligence and

volenti non t injuria.

CONTRIBUTORY NEGLIGENCE

Contributory negligence is basically carelessness on the part of the claimant which

combines with the defendant’s negligence or breach of duty in bringing about the

claimant’s damage. In many cases, the claimant’s negligence will have been a con-

tributing cause of the accident which led to the damage; for example, where he steps

into the road without keeping a proper lookout and is struck by a car being negli-

gently driven by the defendant; or where the claimant’s and the defendant’s vehicles

collide head-on as a result of both drivers’ careless overtaking of other vehicles.

But the essence of contributory negligence in law is not that the claima nt’s careless-

ness was a cause of the accident; rather, it is that it contributed to his damage.1 Thus, for

example, where a car driver carelessly rests his arm on the outside of his vehicle as

he is driving, and another motorist negligently collides with t he car and injures the

driver’s arm,2 or where a motorcyclist is knocked down by a negligent truck driver

and suffers head injuries, owing to the fact that he is not wearing a crash helmet,3

the carelessness of each claim ant is not a cause of the accident but it does contribute

to his damage. In Denni ng LJ’s words:4

A person is guilt y of contributory negligence if he ought reasonably to have foreseen

that, if he did not act as a reasonable, prudent man, he m ight be hurt himself; and i n his

reckonings he must ta ke into account the possibility of others bei ng careless.

Contributory negligence does not involve any breach of duty owed by the claimant

to the defendant, for ‘it does not necessarily connote activity fraught with undue risk

to others, but rather failure on the part of the person injured to take reasonable care

of himself in h is own in ter es t’. 5

1 This is con rmed by the wording of the statutes which provide for apport ionment of damages (p

393): see Ramdath v Telecommunication Services of Trinidad and Tobago (2009) Court of Appeal, Trinidad

and Tobago, Civ App No 126 of 2006 (unreported), per Mendonca JA, at paras 34, 35 [Carilaw TT

2009 CA 48].

2 Khan v Bhairoo (1970) 17 WIR 192 (Court of Appeal, Guyana) (see pp 390–92); Premsagar v Rajkumar

(1978) High Court, Trinidad and Tobago, No 244 of 1974 (unreported) [Carilaw TT 1978 HC 110] (see

below, p 392).

3 O’Connell v Jackson [1972] 1 QB 270. But see Green v Colebrook, n 16.

4 Jones v Livox Quarries Ltd [1952] 2 QB 608, at 615.

5 Fleming, The Law of Torts, 6th edn, 1983, Sydney: LBC Information Se rvices, p 241. Italics supplied.

CHAPTER 14

GENERAL DEFENCES

DOI: 10.4 324/9781351065108 -14

10.4324/97813 5106 5108 -14

408 Commonwealth Caribbean Tort Law

A person is thus contributorily negligent if, for example, he takes a lift in a vehi-

cle driven by a person whom he knows to be under the inuence of alcohol,6 or in a

car which he knows to have defective brakes.7

In a Trinidadian case, Gunness v Ramdeo,8 the claimant and the defendant had

indulged in a three-hour beer-drinking session, and some time later set off in the

defendant’s car, with the defendant at the wheel. The defendant lost control of the

vehicle, which crashed into a wall, causing injuries to the claimant. Marcus J held

that the claimant had been contr ibutorily negligent in remaining in the car when he

knew the defendant was unt to drive, and he reduced the claimant’s damages by

20%. He said:

In the insta nt case the [claimant] was not acti ng under the pressure of any lega l or

social duty in rema ining in t he car with the defendant … T he risk of injury to t he

[claimant’s] person by the defendant’s perilous drivi ng far outweighed the difculties

he probably would have encountered in obtaini ng alternative tran sportation and …

dictated that the [claim ant] should not have remained in the defendant’s vehicle.

In Webb v Rambally,9 a pedal cyclist was held to have been contributorily negligent in

failing to move out of the path of an oncoming vehicle which was being driven reck-

lessly by the defendant, when he had ample time in which to do so. As Theobalds J,

in the Jamaican Supreme Court, explained:

Although it is clear from my ndi ngs that this defendant was primari ly at fault, still,

the [claimant], by his own fault, was one of the causes of t he injury suffered by him.

Fault is used in the wider sen se of an omission or failure. He failed to move out of the

path of the oncoming vehicle when he had a mple time in which to do so. His damages

must be reduced accordingly. A clear message should be sent to peda l cyclists and

pedestrians (the most vu lnerable sector of the road users) that callous indif ference to

their own safet y will not be condoned or encouraged by a full award of damages. Of

course, a timely remi nder is that a motorist should also exercise reas onable considera-

tion for pedestrian s and cyclists. Total lack of consideration for other road users is fa st

becoming endemic i n our society. This [claimant’s] damages are accordingly reduced

by 30%. Where a man was part author of hi s own injury, he could not call on the other

party to compensate h im in full: per Denni ng LJ in Davies v Swan Motor Co Ltd.10

Seat belts

It was established in Froom v Butcher11 that a driver or front seat passenger in a car

who failed to wear a seat belt and was injured in an accident was guilty of contribu-

tory negligence if his injuries could have been avoided or minimised by wearing

a seat belt, even though at that time in the UK there was no statutory regulation

6 Owens v Brimmell [1976] 3 All ER 765. See Symmons, CR (1977) 40 MLR 350; Gravells, NP (1977) 93

LQR 581.

7 Gregory v Kelly (1978) Th e Times, 15 March. See also D awrant v Nutt [1960] 3 All ER 681 (passenger

contributorily neglige nt in riding in the side-car of a motor cycle without a head light).

8 (2001) High Court, Trinidad and Tobago, No S 1606 of 1995 (unreported) [Carilaw TT 2001 HC 84].

9 (1994) Supreme Court, Jamaica, No W 101 of 1990 (unreported).

10 [1949] 1 All ER 620.

11 [1975] 3 All ER 520.