TYPES OF NEGLIGENCE
TYPES OF NEGLIGENCE
1. CONTRIBUTORY
NEGLIGENCE
o See
section 12 (1) of the Civil Law Act
o Where
the plaintiff failed to take reasonable care of himself which contributes to
his injury along with the defendant’s negligence.
o Contributory
negligence is a partial defense- the damages will be apportioned / reduced
depending upon the extent of the plaintiff share in the cause of injury
o See
:
n Jones
v Livox Quarries
JONES
v LIVOX QUARIES [1952] 2 QB 608 CA
The plaintiff was riding down a slope on the back of the
defendant’s vehicle, contrary to the defendant’s orders. Another vehicle
belonging to the defendant was negligently driven and this vehicle hit the back
of the first vehicle.
Held – The plaintiff was guilty of contributory
negligence as he had exposed himself to the risk of falling off the vehicle.
n Sundram
Ramasamy v. Arujunan Arumugam
2. RES IPSA LOQUITOR
o Where
the thing speaks for itself
o When
the plaintiff raises the maxim, he is asserting that based on the evidence
given, he has proven, prima facie, that the defendant is negligent
o The
main purpose is to prevent injustice as otherwise the plaintiff would be
required to prove details of the cause of the incident, which he may not know
o Nevertheless
- the accident wouldn’t have happened if not for some negligence on the
defendant’s part.
o Originated
from the rule in Byrne V. Boadle
BYRNE v BOADLE (1863) 2 A&C 722
A barrel of flour fell on the plaintiff as he was passing
underneath the defendant’s upstairs window.
Held – defendant liable.
o Three
requirements:
·
The thing that cause the damage
must be under the defendant’s control
·
The damage is something that
will not happen if the defendant takes adequate precaution
·
The cause of the accident is
not known
o See
also – Gee v. Metropolitan Railway and Cassidy v. Ministry of Health
GEE
v METROPOLITAN RAILWAY (1873) LR8QB161
The plaintiff had learned against the door of an
underground train shortly after it had left the station. The door suddenly flew
open and the plaintiff fell out of the train, suffering serious injury.
Held – That since the train had just left the station,
the door had until recently been under the control of the defendants, the
defendants therefore liable.
CASSIDY
v MINISTRY OF HEALTH [1951] 1 All ER 574
The
plaintiff lost the use of his left hand and had severe pain and suffering as a
result of negligent treatment following an operation on his hand. The evidence
showed a prima facie case of negligence and on the part persons in whose care
the plaintiff was, although it was not clear whether this was to be imputed to
Dr. Fahrni, the full time assistant medical officer or to the house of surgeon
or to one of the nurses.
Ct
of Appeal held that the hospital authority was liable.
3. NERVOUS SHOCK
o A
positive psychiatric illness or physical damage as a result of physiological trauma
experienced by the plaintiff due to the defendant's negligent act
o There
must be a relationship of love and affection between the plaintiff and the
victim, proximity btw plaintiff and accident in time and space and perceives by
the plaintiff own senses
ZAINAB
ISMAIL v MARIMUTHU & ANOR. [1955] MLJ 22
The plaintiff saw the accident in which her daughter was
knocked down by the defendant’s lorry.
Held
– She could recover for her nervous shock although she was nowhere in the area
of physical impact.
BOARDMAN
v SANDERSON [1964] 1 WLR 1317
The father was within earshot of the accident to his
child and was likely to come on to the scene, he did so soon after and suffered
shock from what he saw.
Held
– he could recover damages from the accident.
BOURHILL
v YOUNG [1943] AC 92
A pregnant housewife failed in her action for nervous
shock on two grounds – First, because she was considered by the House of Lords
as a mere “casual Spectator” since she did not have a close relationship with
the victim, and secondly, because three judges of the House of Lords applied
the “impact theory” and held that she was nowhere in the area of foreseeable
danger.
At the time of accident, the Plaintiff was standing about
50 feet away from the place of impact, her view of the accident prevented by a
tramcar. In short, she merely heard , but did not see the accident.
The
House of Lords also held that the defendant motor-cyclist oqwed no duty of care
to the plaintiff.
TYPES OF NEGLIGENCE
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