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.