CAUSATION

(PART II)
Prepared by Ms. Julia Farhana Binti Rosemadi
Proof of Negligence
Two stages:
1.Question of law
2. Question of fact

Qualcast (Wolverhampto) Ltd v Haynes [1959] 2 All ER 38

Even though all issues of law and fact must be taken into consideration in
determining defendant’s liability in negligence, in the end the
reasonableness or otherwise of defendant’s act depends on the facts of
each case.
Burden of proof
Section 101 Evidence Act 1950
The burden of proof lies on the plaintiff.
Case: Krishna Murthey & Anor v Law Lye Chua [1992] 1 CLJ 684
The burden of proof lies on the shoulder who makes the claim.
Standard of proof

United Asian Bank Bhd v Tai Soon Heng Construction Sdn Bhd
[1993] 1 MLJ 182
Standard of proof is on the balance of probabilities.
If the plaintiff fail the reach the standard, the plaintiff’s claim
would fail.
If the evidence against the defendant is equally balanced, then
the plaintiff would still be considered as failing to establish his
case.
Case: Miller v Minister of Pensions [1947] 2 All ER 372
Per Lord Denning;
The plaintiff’s evidence must prove that it is more probable than
not, that the accident occurred due to lack of care on the part
of the defendant.
Res ipsa loquitor
•“the thing speaks for itself”
•Purpose of maxim: to avoid injustice to the plaintiff as
otherwise the plaintiff would be required to prove the details of
the cause of accident, which he may not know.
•The court may draw inference of negligence even though there
is no outright evidence as to defendant’s act or omission.
•Presumption of negligence where defendant is to rebut the
presumption, give evidence that his act was reasonable in the
circumstances.
How and when is the maxim applicable?
•The damage or injury that has occurred must give rise to the
presumption that the defendant has been negligent.
•This presumption must be clear and non-contradictory.
•Scott v London and St Katherine Docks Co [1865] 3 H & C 596 per Erle CJ
(at 601):
There must be reasonable evidence of negligence. But where the thing is
shown to be under the management of the defendant or his servants, and
the accident was such as in the ordinary course of things would not have
happened if those who had the management had used proper care, it
affords reasonable evidence, in the absence of explanation by the
defendants, that the accident arose from want of care.
Three requirements for the application of the maxim:
(a) the thing that causes the damage must be under the
control of the defendant;
(b) the damage is something that will not ordinarily happen if
the defendant takes adequate precaution; and
(c) the cause of accident is not known.
a) Control
Just a mere control or actual control of the events leading to the
injury is sufficient
Case: Gee v Metropolitan Ry Co [1873] LR 8 QB 161
The plaintiff fell out of the train when the door that he was
leaning on suddenly opened when the train moved.
Held: Liable
Easson v LNE Ry Co [1994] KB 421
The maxim was raised when a four year old girl fell off a train
when the doors suddenly opened seven miles after the last stop.
Held: It was unreasonable to expect that the train had to be
under the control of the defendant for the whole journey as it
might be caused by the defendant or other passengers on the
train.
Ward v Tesco Stores Ltd [1976] 1 All ER 219
The plaintiff slipped on some spilt yoghurt at defendant’s
supermarket.
Held: maxim applied even though there was no evidence as to
how long the yoghurt had been on the floor.
b) The damage is of a kind that would not
ordinarily happen if the defendant had taken
adequate precaution
Case: Chaproniere v Mason [1905] 21 TLR 633
Defendants were held liable where a stone was found in a bun.
Case: Byrne v Boadle [1863] 2 H & C 722
A bag of flour fell from a factory window injuring the plaintiff.
Held: This would not have happened without any negligence on the part
of the defendant.
c) The cause of the accident is not known
Case: Barkway v South Wales Transport Co Ltd [1950] 1 All ER
392
The plaintiff who was a passenger on the defendant’s bus was
killed when the bus was involved in an accident. However, the
cause of the accident was a faulty tyre which might have been
discovered if the defendant had frequently required the drivers
to make relevant reports.

House of Lords: Res ipsa loquitor does not apply.

Case: Noor Famiza bte Zabri & Anor v Awang bin Muda & Anor
[1994] 1 AMR 679
Abdul Malik Ishak JC quoted the dictum of Ong CJ in Lai Kuit
Seong v PP
“… the doctrine does not apply where the cause of the accident
is known… the res speaks because … where the accident stands
unexplained, the known facts and circumstances, however
meagre, may be such that want of reasonable care is safe
attributable to the person but for whose negligence the accident
could not have happened … conversely res ipsa loquitor cannot
be relied on where the res is ambivalent.
Teoh Guat Looi v Ng Hong Guan [1998] 4 AMR 3815 CA citing Megaw LJ
in Lloyde v West Midlands Gas Board [1971] 2 All ER 1240 at 1246
NH Chan JCA (at 3821):
… res ipsa loquitur was in essence no more than a common sense
approach to the effect of the evidence in certain circumstances. It means
that a plaintiff prima facie establishes negligence where
(i) it is not possible for him to prove precisely how the accident
happened, but
(ii) on the evidence as it stands, he manages to show that the accident
could not have happened without negligence on the part of the
defendant.
What is the effect of its application?
•If plaintiff has successfully raised the maxim, it means that the
plaintiff had proven prima facie that the defendant had been
negligent.
•Thus the onus will shift to the defendant.
•If the defendant is able to give evidence or gives reasonable
explanation which is equally consistent with the accident
happening without his negligence, the onus shifts back to the
plaintiff who has to prove negligence.
Case: Henderson v Henry E Jenkin & Sons [1970] AC 282, HL
The plaintiff’s husband was killed in an accident due to the
dysfunctional brake of a lorry when descending a hill. The failure
to brake the lorry was probably due to the dysfunction in the
hydraulic brakes of the defendant’s lorry.
The defendant claimed that the damage was latent and would
not have been discovered even if reasonable inspection had
been made.
House of Lords: Liable because the defendants failed to rebut
the interference of negligence raised against them and the
defendants had failed to show that they had made reasonable
inspection of the heavy lorry, which was regularly sent on a
journey of steep hills.
DEFENCES TO NEGLIGENCE
1. Volenti non fit injuria
Case: Lee Geok Theng v Ngee Tai Hoo & Anor [2000] 4 MLJ 42 at
44 per KN Segara J
Volenti non fit injuria simply means that to which a man
consents cannot be considered an injury. No act is actionable as
a tort at the suit of any person who has expressly or impliedly
assented to it. No one can enforce a right which he has
voluntarily waived or abandoned. Consent must be real and
given without force, fear or fraud. Mere knowledge of a risk does
not amount to consent.
WHAT DO THE DEFENDANT MUST PLEAD?

a) the facts of which the plaintiff was fully appraised, gave rise to
the injury; and
b) The plaintiff understood the risk of injury; and
c) The plaintiff voluntarily undertook to be responsible for the
risk
SITUATIONS OF VOLENTI NON FIT INJURIA
1. The plaintiff has consented to the act which cause his injury.
2. The plaintiff consented to run the risk of an injury.
VOLENTI NON FIT INJURIA, A COMPLETE DEFENCE?

•Complete/absolute defence.
•Requirements:
i. the plaintiff had full knowledge of the risk
ii. Consent must be freely and voluntarily given
iii. The defendant must show that the plaintiff had agreed to
take the risk (consent/assumption of risk)
FULL KNOWLEDGE OF RISK
Case: Lee Geok Theng v Ngee Tai Soo [2000] 4 MLJ 42
A motorcyclist is not entitled to raise the defence of volenti
merely on the ground that his pillion knew of the risk and is
willing to run the same risk.
CONSENT MUST BE FREELY AND VOLUNTARILY
GIVEN

Case: Bowater v Rowley Regis Corporation [1944] KB 476

Free consent implies that the claimant have a choice as to
whether or not to accept the risk. The claimant must not be
subject to any restrictions, coercions or duress.
CONSENT/ASSUMPTION OF RISK
There must be an agreement which shows that the plaintiff had
consented to the risk of injury.
Case: Smith v Baker
Can an employer raise the defence of volenti non fit injuria in
construction cases?
Morris v Murray (1990)
Defence of volenti non fit injuria was raised by the defendant in
a situation where the claimant knew that the pilot was drunk.
2. CONTRIBUTORY NEGLIGENCE
The plaintiff had breached a duty of care for his own safety, in
that he has failed to take reasonable care for himself or his
property which consequently resulted in his injury.
HISTORY OF CONTRIBUTORY NEGLIGENCE
•A complete defence.
•Case: Butterfield v Forrester (1809) 103 E.R. 926
Held: The plaintiff would not have met with the accident, if he
had exercised ordinary care and the plaintiff’s claim failed as the
accident was said to have been caused by his own negligence.
DEVELOPMENT OF THE LAW
Case: Davies v Mann [1842] 10 M & W 546.
Rule: The last opportunity rule.
The last person to be negligent and thus the person who had the
last opportunity to avoid the accident would be fully liable.
Weakness: Difficult to determine in accident cases.
THE CURRENT LAW
England: Law Reform (Contributory Negligence) Act 1945
Section 1(1) provides that;
Whenever a person suffers injuries due to his own fault as well
as others, his claim will not fail, but the amount of
compensation he receives will be reduced to an amount that is
considered just and reasonable, taking into consideration his
contribution to the final damage.
CURRENT LAW
Malaysia: Civil Law Act 1956
Section 12(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 Courts thinks just and equitable having regard to the
claimant’s share in the responsibility for the damage.
Elements of contributory negligence
i. The plaintiff is not required to have a duty of care to the
defendant. The duty of care is upon himself to act reasonably
so as to avoid damage to himself; and
ii. The plaintiff has ‘breached’ this duty of care by behaving
unreasonably; and
iii. The act or omission must be the cause of his injury, which
must be of a type reasonably foreseeable from his act or
omission.
Case: Froom v Butcher (1976)
The plaintiff’s car was in collision with the defendant’s car. At
the time of the accident, the plaintiff was not wearing any seat
belt.
Held: The damages should be reduced by 20% as a prudent man
would wear a seat belt unless there was exceptional
circumstances.
Jones v Livox Quarries Ltd [1952] 2 QB 608
Since the plaintiff disobeyed his employer by riding on the back
of traxcavator, which later resulted in the plaintiff’s injury, the
plaintiff was held to be contributory negligent.
Wong Fook & Anor v Abdul Shukur bin Abdul
Hakim
The reduction of liability on a defendant driver where the
plaintiff does not wear seat belt will be considered if the
plaintiff is the driver of the other vehicle. However, if the
plaintiff is a mere passenger thus he is entitled to be fully
compensated.
Fitzgerald v Lane [1988] 3 W.L.R. 356

Since the plaintiff had contributed to contributory negligence

by 50%, the remaining 50% was divided between the other two
defendants.
Sundram a/l Ramasamy v Arjunan a/l Arumugam
& Anor
The defendant failed to prove that the act of the plaintiff lying in
the middle of the road caused or contributed to contributory
negligence.
Contributory negligence of children

Case: Gough v Thorne [1966] 3 All ER 398

Per Lord Denning:
A very young child cannot be guilty of contributory negligence. An older
child may be; but it depends on the circumstances. 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 precautions for his or her own safety.
He or she is not to be found guilty unless he or she is blameworthy.
Mohamad Safuan bin Wasidin & Anor v Mohd
Ridhuan bin Ahmad (an infant) [1994] 2 MLJ 187
Per Abdul Malik Ishak JC
… the degree of care attached to a child should be different from that of
an adult. That degree… must be proportionate to the age of the child. The
younger the child is, the lesser the lesser the degree of the care
attributable to the child. This must however be dependent on the facts of
each case.
Compare with the case of Santhanaletchumy a/p Subramaniam v Zainal
bin Saad & Anor
3. Illegality

•Ex turpi causa non oritur action

•An action cannot be founded on a bad cause
•Case: Pitts v Hunt (1990)
Since the plaintiff encouraged the defendant to do an illegal act,
his claim was defeated by the maxim ex turpi.
Other defences (Trespass)
1. Self defense.
•Must be a reasonable self defence.
•Elements
i. It must be reasonable to use force
ii. The amount of force used must be reasonable in the
circumstances.
 2. Necessity.
Interference with another person may sometimes be necessary
to protect them from greater evil.
Elements:
i. The defendant acted under the reasonable belief that the
steps taken were necessary to protect a person or property
from imminent danger
ii. The steps themselves were reasonable steps to take.
3. Defence of another.
The use of force must be reasonable and proportionate.

4. Unsoundness of mind.

5. Discipline or parental authority.

However it may amount to battery if the amount of force is
disproportionate to the child’s behaviour or the child does not
understand the purpose of the punishment.