Law of Torts - Contributory Negligence II

Elements of Contributory

Foresee ability

P is liable for contributory negligence if he reasonably foresee that if he did not act as a reasonable man, he might hurt himself.

Jones v Livox Quarries - - P rid at the back of a traxcavator which is against the instruction. A dumber travelling behind the trax collided it and P injured. P was held contributory negligence.

P’s Conduct which is Contributory Negligence

Act against order/instruction

1. Jones v Livox Quarries - - riding at back of traxcavator.

2. Stapley v Gypsum - - Dcd knew the roof of the mine was dummy yet went on work against the instruction.

Driver Drunken

Oewn v Brimmell - - if P a passenger knew the driver was drunk with such quantity which might danger P is contributory negligence.

Low Kwan Moi v Ramli & Ors & Govt of Malaysia - - jump into river police raiding gamble (contributory negligence)

Not Wearing Crash Helmet

1. O’Connell v Jackson - - although D negligence for accident but P was contributory negligence to his injury for not wearing helmet.

2. Wong Ah Gan v Chan Swei Yueh & Anor - - P is not contributory negligence because not wearing helmet unless P foresee it might cause injury.

Chan Loo Khee v Lai Siew San & Anor - - parking car with light on at highway not contributory negligence.

Yeo Lian Hwa v The Hock Lee Amalgamated Bus Co. - - boarding into moving bus is contributory negligence.

Wong Mun Kong v pacific & Oriental Underwriter (M) Sdn Bhd - - making U turn after giving signal light makes P contributory negligence


The word ‘result’ in the section refers to causation.

Jones v Livox Quarries - - What was the cause of the damage was P contributed partly to his damage.

Stapley v Gypsum Mines - - The question of causation to be determined by applying common sense to the fact of each case.

Froom v Butcher - - the question is not what was the cause of accident but what was the cause of damage.

Conduct in the Agony of the Moment

If D’s negligence put P in dilemma and P choose a course of conduct which prove to be wrong, D cannot escape liability provided

i. P acted in reasonable apprehension of danger.

ii. Method used must be reasonable one.

Jones v Boyce - - due to D’s negligence a coach break and uncontrolled. P jumped to escape but injured. It was not contributory negligence.

British School of Motoring Ltd v Simms & Anor - - the act of stopping a test car by examiner was held reasonable under such circumstances because leaner makes a mistakes.

Act of Infant/Children

If the child is very young no contributory negligence but if older child then there is a contributory negligence if he fails to exercise below the standard of care of a child of his own age.

Lynch v Nurdin - - 7 years old child who climb on the unattended and cart no contributory negligence.

Gough v Thorne - - 13 ½ years old girl together with her brothers cross the road after the lorry driver signal to do so. A car came from behind the lorry and knocks her. P did no contributory negligence because if a child at that age persuaded to cross, will do so.

Symes v Ling Ngan Ngien - - a child left in the car by her mother. The child then came out and cross the road and knocked. There was no contributory negligence.

Jag Singh v Tong Fong Omnibus Co - - 7 years old infant while waiting for bus surged into the roadway and knock by the bus. It was contributory negligence liable.

Tan Siew Goh v Tan Tien Soo - - 12 years old girl alighted from bus quickly cross without looking. It was contributory negligence liable.

Tan Guan Khen & Anor v KL Klang Port Swettenham Omnibus Co. - - 8 years old school boy attempt board bus and the bus moved. He was injured. It was not contributory negligence because he was too young.

Workman Contributory Negligence
Flower v Ebbw Vale Steel, Iron & Coal Co. - - the test is what an ordinary workman in the circumstances could have done.

Caswell v Powerll Duffryn Associated Collieries Ltd - - If there is any statutory provision which is to protect a worker then it must be complied. Failure to do so is contributory negligence.

Jayes v Imi (Kynoch) Ltd - - a workman put his hand inside machine and cut his finger. It was held that 100 % contributory negligence and he gets nothing.

Malaysia’s Section 12(1) Civil Law Act - - court cant held P 100 % contributory negligence.

Apportionment of Damages

Section 12(1) of Civil Law Act states that court must apportioned damages on the basis of just and equitable. It is a question of fact.

i. the gravity of risk assumed by the claimant is an important factor.

Helson v Mckenzies Ltd - - P lost her handbag contained huge money. A sales assistant handed over to P and found something missing. It was held that P contributed more to the negligence.

Fitzegarld v Lane - - The issue of contributory negligence on the part of P should be kept separate from the determination of contribution between joint tortfeasor.

For example if D contributed 70% and P contributed 30% then D must only pay $70,000.00 if the claim is $100,000.00.

If D1 contributed 70% and D2 contribute 30% and P contributed 30% = 100% - 30% = 70%. That 70% divide between D1 70% and D2 30%.

See further Helson's and Fitzegarld's case
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