LC1003 LAW OF TORTS

NEGLIGENCE VII
DEFENCES

1 Introduction
1.1 Explanation
2 Illegality – ex turpi causa
2.1 Origins – the reliance test
 Holman v Johnson [1775]
2.2 Joint illegal enterprises (JIEs)
 Pitts v Hunt [1990]
 Gala v Preston [1991]
 Jackson v Harrison [1978]
2.3 Non-joint illegal enterprises (non-JIEs)
2.3.1 Inextricable link test
 Ooi Han Sun v Bee Hua Meng [1991]
 Vellino v Chief Constable of Manchester Police [2002]
2.3.2 Causation test
 Gray v Thames Trains Ltd [2009]
 Joyce v O’Brien [2014]
2.3.3 Multi-factorial approach
 Hounga v Allen [2014]
 Les Laboratoires Servier v Apotex Inc [2014]
 Patel v Mirza [2016]
 Gujra v Roath [2018]
2.3.4 ‘The very thing’ test
 Reeves v Commissioner of Police of the Metropolis [1998]
 United Project Consultants Pte Ltd v Leong Kwok [2005]
2.3.5 Singapore’s position on illegality
 Ting Siew May v Boon Lay Choo [2014]
 Md Shohel Md Khobir Uddin v Chen Yongbiao [2018]

3 Volenti non fit injuria

3.1 Elements

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 3.2 Statutory exclusions
 Motor Vehicles (Third Party Risks and Compensation) Act (Cap 189, 2000 Rev Ed)
 Unfair Contract Terms Act (Cap 396, 1994 Rev Ed)
3.3 Was the agreement to incur the risk real?
 Bowater v Rowley Regis Corporation [1944]
 Imperial Chemical Industries Ltd v Shatwell [1964]
 Baker v T.E. Hopkins & Sons Ltd [1959]
3.4 Did the plaintiff demonstrated agreement to incur the risk?
 Bennett v Tugwell [1971]
 Nettleship v Weston [1971]
 Dann v Hamilton [1939]
 Morris v Murray [1991]
3.5 Interaction between breach and volenti
 Wooldridge v Sumner [1962]

4 Contributory negligence
4.1 Explanation
4.2 Statutory approach
 Contributory Negligence and Personal Injuries Act (Cap 54, 2002 Rev Ed)
4.3 Establishing plaintiff’s fault
 Asnah bte Ab Rahman v Li Jianlin [2016]
 Pollman, Christian Joachim v Ye Xianrong [2017]
4.4 Apportionment
 Cheng William v Allister Lim & Thrumurgan [2015]
 Jackson v Murray [2015]
 Asnah bte Ab Rahman v Li Jianlin [2016] (see 4.3)
 Ng Weng Cheong v Soh Oh Loo & Anor [1993]
 Pritchard v Co-operative Group Ltd [2011]
4.5 Children and the mentally disabled
 Ang Eng Lee v Lim Lye Soon [1985-1986]
 Town of Port Headland v Reece William Hodder [No 2] [2012]

1 INTRODUCTION

1.1 Explanation
1. At this stage, a prima facie case of negligence has been established because:

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 (a) ∏ owes ∆ a duty of care
(b) ∆ was in breach of the requisite standard of care
(c) ∆’s conduct had in fact and in law caused the damage
(d) Damage was not too remote
2. It can be assumed that ∆ failed to counter ∏’s assertions at every one of these steps, and
therefore failed to undermine ∏’s claim.
3. Defences are arguments (“shields”) raised by the defendant to either partially or completely
eradicate his liability. The burden of proof lies on the ∆, some defences are interrelated and
the same set of facts can give rise to multiple defences. The specific defences covered are:
(a) Illegality (ex turpi causa)
(b) Volenti non fit injuria
(c) Contributory negligence

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2 ILLEGALITY – EX TURPI CAUSA

2.1 Origins – the reliance test

1. Holman v Johnson [1775] 1 Cowp 341 – formulated by Mansfield CJ
(a) Claimant who lived in Dunkirk sold tea to the ∆ while knowing it was intended to be
smuggled into England (though not concerned with the smuggling scheme), method
of payment was meant to be by bills of exchange drawn in England, claimant brought
an action for non-payment, ∆ contended that it could not be enforced because the
contract was unlawful
(b) Held not unlawful, Mansfield CJ mentions two requirements for making out defence
of ex turpi causa:
(i) ∏ did an illegal act
(ii) This illegal act must be relied on when ∏ sets out his cause of action,
“founded upon the ground of any immoral act or contract”

2.2 Joint illegal enterprises (JIEs)

1. JIEs are “crimes gone wrong”, and partners-in-crime sue each other for not taking care while
committing the crime together, usually fails at the earlier stages of duty or breach, illegality
doctrine generally not needed.
2. The question to ask is – can an appropriate standard of care be established?
(a) No, therefore impossible to set a duty of care (see Pitts and Gala)
(b) Yes, therefore a relevant duty can still be imposed (see Jackson)
3. Where an appropriate SOC cannot be determined
(a) Pitts v Hunt [1990] 3 WLR 542
(i) Hellraiser bikers – ∆ gave ∏ lift on the back of his motorbike (had no
license to ride the bike, no tax nor insurance), pair consumed alcohol at their
destination and ∆ was twice over the legal limit for driving
(ii) On the way home, ∆ was driving recklessly and erratically, zig-zagging down
the centre of a road at great speed, with both parties shouting and jeering (∏
was encouraging the dangerous driving), even scaring pedestrians, eventually
∆ died and ∏ was left permanently disabled
(iii) Held court cannot possibly impose a standard of care on ∆, defence of ex
turpi causa succeeds
(a) Public policy bars ∏’s from recovering compensation for the injuries
which he sustained in the course of the very serious offences in
which he was participating (at 555)

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 (b) Gala v Preston [1991] 100 ALR 29 (HCA)
(i) Drunk car thieves – ∏ and friends went drinking, and decided to steal a
vehicle to visit his brother (‘a joy ride’), ∏ drove first then ∆ took over,
crashed into a tree (due to ∆’s negligence), killing one of the friends and
caused ∏ to suffer injury
(ii) Held not feasible to determine SOC, insufficient proximity between the
parties to rely on the ordinary standard of care
(a) Brennan J opined that finding a DOC would condone illegal conduct
[49]
(b) Dawson J said that a DOC cannot be established as it will refer to
the crime (“require its modification by reference to the criminal
nature of their activity”), law refuses to set a standard of care in such
scenarios [56]
4. Where an appropriate SOC can be determined
(a) Jackson v Harrison [1978] 19 ALR 129 (HCA)
(i) Disqualified Adelaide drivers – both ∏ and ∆ had been disqualified from
driving and had licenses suspended, however agreed to took turns to drive, ∆
collided with other vehicles due to negligence
(ii) Courts held that a standard of care was indeed found, defence of ex turpi
causa failed
(a) Mason J, the denial of relief against a ∏ in a JIE should “be related
not to the illegal character of the activity but rather to the character
and incidents of the enterprise and to the hazards which are
necessarily inherent in its execution”, in this case a SOC was found –
driver with ‘experience or ability to drive carefully’ [142-143]
(b) Jacobs J, Aickin J opined that ∏’s injury unconnected with the
illegality of both parties, facts have no bearing of SOC expected
of ∆ - suspended license and car crash not related, SOC will still be
found as long as they were qualified drivers from the beginning [146]
(c) Murphy J, illegality is narrow, should deny claim only if that is
statutory policy (and not because the court for public policy declines
to find a DOC or SOC), in non-statutory cases recovery should be
denied only where there is a voluntary assumption of risk [150]

2.3 Non-joint illegal enterprises (non-JIEs)

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1. Multiple tests exist to determine whether the illegality claimed is sufficient to completely
nullify the liability
(a) Classic reliance test (Holman v Johnson, see 2.1)
(b) Inextricable link test (Ooi Han Sun; Vellino; Md Shovel)
(c) Causation test (Gray; Joyce)
(d) Multi-factorial approach (Hounga, Patel)
2. Other rules to consider:
(a) Tinsley v Milligan (overruled by Patel)
(b) “The very thing” test (Reeves; United Project)

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2.3.1 Inextricable link test

1. Ooi Han Sun v Bee Hua Meng [1991] 1 SLR(R) 922

(a) Illegal worker in overturned lorry – ∏ was a passenger at the back of the lorry,
overturned when mounting curb due to ∆’s negligence, ∏ suffered multiple injuries
and was unable to work, ∏ sued but ∆ contended that the fact that ∏ was a Malaysian
without a valid work permit meant that ex turpi causa should apply
(b) Held that ∏’s status as an illegal worker was not inextricably linked to ∆’s
negligence or to the claim
(i) Doctrine of ex turpi causa has very limited application in tort [15], the fact
that the ∏ was involved in some wrongdoing does not of itself provide the ∆
with a good defence
(ii) In line with statute – the Contributory Negligence and Personal Injuries
Act (Cap 54, 1989 Rev Ed) reflects that a claim will not be defeated by
reason of the fault of the person suffering the damage; Workmen’s
Compensation Act (Cap 354) sates that ∏ will not be prevented from suing
for recovery of compensation even under an illegal contract
2. Vellino v Chief Constable of Manchester Police [2002] 1 WLR 218
(a) Balcony-jumping criminal – Police arrived to effect an arrest warrant for ∏’s failure
to appear in court, ∏ jumped out of bedroom window, causing brain damage and
rendering him a tetraplegic
(b) Held ex turpi causa succeeded, police not liable for injuries caused
(i) Sir Murray-Stuart Smith, the requirements to invoke the defence under the
inextricable link test are that:
(a) ∏’s illegal act is inextricably linked to ∆’s carelessness
(b) ∏’s illegal act is sufficiently serious to merit application of the
principle (crime punishment with imprisonment could be expected to
qualify)
(ii) Schiemann LJ, there is no duty of a police officer to ensure that a prisoner
does not hurt himself in the course of escape, absurd for the court to impose
a duty

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2.3.2 Causation test

1. Gray v Thames Trains Ltd [2009] 3 WLR 167

(a) ∏ was a passenger in the Ladbroke Grove rail crash, developed PTSD afterwards and
fatally stabbed someone, subsequently sued the train company on negligence
(b) Held illegality defence succeeded, ∆ not liable for loss of income
(c) Lord Hoffman formulated 2 potential rules at [32]:
(i) A narrower rule that you cannot recover for damage which is the
consequence of a sentence imposed upon you for a criminal act – rationale is
that it is inconsistent for the court to punish ∏ and compensate him
afterwards (“left hand, right hand”) [38]
(ii) A wider rule is that you cannot recover for damage which is caused by his
own actions
(a) Justification on grounds that it is offensive to public notions of the
fair distribution of resources
(b) What “cause” means is unclear, but it is different from but-for
causation, more based on legal causation and the concept of NAIs
(no one knows what Hoffman is saying here)
(a) Better to avoid metaphors like ‘inextricably linked’
2. Joyce v O’Brien [2014] 1 WLR 70
(a) Ladder thieves – both were stealing ladders, ∏ fell from the getaway vehicle as they
were fleeing the scene and sustained serious injuries
(b) Held illegality defence succeeded, ∆ not liable for ∏’s injuries
(c) Causation test applied even for JIE cases – denied recovery not merely where the
injury results directly from his own criminal conduct, but also where it results from
the action of a “joint participator carried on in furtherance of the joint enterprise” [27]
(i) Rationale: is it foreseeable that a party “may be subject to unusual or
increased risks of harm as a consequence of the activities of the parties in
pursuance of their criminal objectives, and the risk materialises”
(ii) Due to Joyce, the application of ex turpi in JIE cases was no longer about ‘no
duty’ or ‘impossibility of setting a standard of care’ but about causation, but
does not define what ‘causation’ is in non-JIE cases
(iii) Quickly replaced in Hounga anyway
2.3.3 Multi-factorial approach

1. Hounga v Allen [2014] 1 WLR 2889

(a) Discriminated illegal immigrant – ∏ brought to UK at the age of 14 and overstayed
her visa, employed by ∆ to take care of her children, dismissed afterwards which ∏

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 contended was discrimination on racial grounds as she had treated ∏ worse than she
treated others, ∆ brought illegality claim (∏’s entry and employment in the UK)
(b) Held illegality defence did not apply, ∆ liable to ∏ for discrimination
(c) Lord Wilson (majority), applied a multi-factorial approach
(i) Public policy considerations are central to whether illegality applies,
allowing defence in this cause could encourage employers into illegal
employment contracts
(ii) Rejected causation test [36], “not convinced that the alternative inquiry
suggested by Lord Hoffmann is any more likely to secure consistency of
decision-making”
(d) Lord Hughes (concurring), applied the inextricable link test that ∏’s illegal act was
not closely connected with the tort committed by ∆ as to bar ∏’s claim, “merely
provided the setting or context in which that tort was committed”
(e) Evaluation – causation test rejected by Lord Wilson, adopted new test based on public
policy instead, but inextricable link test brought back by minority
2. Les Laboratoires Servier v Apotex Inc [2014] 3 WLR 1257
(a) Patent breach case, facts actually irrelevant
(b) Held illegality defence failed, illegality requires an act that triggers the public
interest (not public policy)
(i) Criminal acts – includes everything you know about crimes
(ii) Quasi-criminal acts
(a) Corrupt/dishonest acts
(b) Anomalous categories of misconduct like prostitution
(c) Breach of statutory rules enacted for the protection of public
interest (in conflict with Lord Wilson in Hounga)
(c) Illegality a rule of law, not a discretionary power (in obiter)
(i) Should not have had any regard to the culpability of the illegality, the
proportionality of applying the illegality defence, or the general merits of the
case
3. Patel v Mirza [2016] 3 WLR 399 – 9-member bench to settle the illegality mess
(a) ∏ paid money to ∆ pursuant to an agreement under which ∆ agreed to use the money
to bet on the movement of shares using insider information (a crime), was not carried
out so ∏ wanted his money back, ∆ cited illegality
(b) Held illegality defence failed (actually an unjust enrichment claim)
(c) Lord Toulson (majority), overarching policy concern is to maintain integrity of legal
system, court must ensure that:
(i) There is no inconsistency in the law (“left hand, right hand”)

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 (ii) People do not profit from their own wrongdoing
(d) In assessing whether to allow the claim (whether public interest would be harmed),
three cardinal matters need to be addressed:
(i) Considering the underlying purpose of the prohibition which has been
transgressed
(ii) Considering conversely any other relevant public policies which may be
rendered ineffective by denial of the claim
(iii) Keeping in mind the possibility of overkill unless the law is applied with a
due sense of proportionality (no definitive list of factors, but include)
(a) Seriousness of conduct
(b) Centrality to the claim
(c) Disparity in the parties’ respective culpability
4. Gujra v Roath [2018] 1 WLR 3208 – JIE case
(a) Burnt arsonist – ∆s paid ∏ to burn their cars for insurance fraud, ∏ was charged and
prosecuted for arson (although eventually acquitted), sued for time in custody for
breach of duty to disclose the scheme (JIE case)
(b) Held illegality defence succeeded, but court applid Joyce (causation test)
(i) Joyce was the appropriate test for “deciding whether or not the defence of
illegality in the case of joint enterprise is met”
(ii) ∏ had ‘caused’ his own harm (of being remanded) as the risk of
imprisonment was foreseen and discussed [32]

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2.3.4 ‘The very thing’ test

1. Reeves v Commissioner of Police of the Metropolis [1998] 2 WLR 401

(a) ∏ was prisoner in custody with known suicide risk, hung himself when ∆ was
negligent, Police contended ex turpi causa because ∏ had committed an immoral act
in committed suicide
(b) Held defence failed, it was the police’s very duty to protect ∏ against his own self-
harm, liable for ∏’s death
(i) [411] “it is simply artificial to contend that a defence to liability can rest upon
the performance by the deceased of the very act that the ∆ was under a duty to
take reasonable steps to prevent”
(ii) Duty must have been to prevent a specific event from happening, and that
specific event must have happened
2. United Project Consultants Pte Ltd v Leong Kwok [2005] 4 SLR 214
(a) Shady tax auditor – ∏ committed statutory offence under the Income Tax Act of
making incorrect tax returns, ∆ raised this as their defence
(b) Held that the ∏’s act was not criminal in nature, “reprehensible” or “grossly
immoral” and thus did not constitute an illegal act, defence failed
(i) Economic loss suffered by the ∏ was the same loss – the very thing – that
the auditors were engaged to avoid, auditors not allowed to rely from a
consequence of their own failure in the first place

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2.3.5 Singapore’s position on illegality

1. Ting Siew May v Boon Lay Choo [2014] 3 SLR 609 (SGCA) – contract case
(a) Contract back-dater – contractual illegality meant ∏ could not enforce contract to
buy land (contract was backdated to avoid MAS’ borrowing restrictions)
(b) Held illegality defence failed, Option to Purchase contract still binding
(c) Primary principle for illegality should be proportionality, factors include:
(i) Whether allowing the claim would undermine the purpose of the prohibiting
rule;
(ii) The seriousness of the offence;
(iii) The causal connection between the claim and the illegal conduct;
(iv) The conduct of the parties; and
(v) The proportionality of denying the claim
(d) Test functionally identical to Patel, appears to favour a multi-factorial approach for
illegality
2. Md Shohel Md Khobir Uddin v Chen Yongbiao [2018] 3 SLR 160
(a) ∏ was working for a non-approved employer (moonlighting), got injured by falling
into a hole, ∆ claimed they had no duty because of the moonlighting
(b) Held duty owed to moonlighting worker, illegality defence failed
(c) Endorsed Hounga – public policy considerations
(i) Moonlighting worker merely provided the context for the ∆’s negligence
(ii) Finding that public policy militated against the imposition of a duty of care
might engender a belief among employers that they can discriminate
against such employees whom they choose to hire despite knowing that is
illegal

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3 VOLENTI NON FIT INJURIA

3.1 Elements
1. The voluntary assumption of risk is premised on the ∏’s consent to the risk of harm from ∆’s
negligence. If the ∏ is aware and agrees to the risk, ∆’s scope of duty will inevitably be
smaller, and therefore owing no duty or only a very limited duty
2. Elements of the volenti defence are:
(a) ∏’s knowledge of the risk of harm
(i) Knowledge is subjective (Morris)
(b) ∏’s consent or agreement to incur the risk
(i) Agreement is objectively ascertained (Bennett)
(ii) Agreement may be inferred by conduct (Morris)
(iii) ∏ must waive any and all claims for negligence, though unlikely (Nettleship)
(c) The risk materialises

3.2 Statutory exclusions

1. Motor Vehicles (Third Party Risks and Compensation) Act, §5
(a) Volenti defence precluded in motor vehicle accidents as long as the vehicle is required
to be with third party insurance (whether it has insurance or not, covers about
everyone)
2. Unfair Contract Terms Act, §2
(a) States where a contract term purports to exclude liability for negligence, a person’s
agreement to or awareness of it is not itself to be taken as indicating his voluntary
acceptance of any risk (does not cover financial loss; restricted to business liability)

3.3 Was the agreement to incur the risk ‘real’?

1. Bowater v Rowley Regis Corporation [1944] 1 All Er 465
(a) ∏ was cleaning the streets with a horse drawn carriage, protested as the horse
provided was unruly; employer did not care and made him use horse, ∏ sued when
horse threw him from his cart and injured, ∆ claimed volenti
(b) Held that in employer-employee situations, is doubtful as to whether the employee
freely and voluntarily assumed the risk – compliance with order is not consent
(i) If ∏ had negotiated for higher pay, this conduct would evince agreement and
volenti would apply (at 466)
2. Imperial Chemical Industries Ltd v Shatwell [1964] 2 All Er 999

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 (a) Two brothers who were qualified shot-firers sustained injuries at their employer’s
quarries; brothers had been short of wire to test a circuit for firing explosives from a
sheltered distance, disobeyed employer’s instructions and statutory regulations and
tested it anyway
(b) Held volenti defence succeeded, brothers knew of the risk of harm (as certified and
experienced shotfirers), yet voluntarily assumed the risk for convenience’s sake
(c) Distinguished from Bowater – the former did not have a choice regarding how to
discharge his work
3. Baker v T.E. Hopkins & Sons Ltd [1959] 3 All ER 225 – rescuers’ consent?
(a) Two employees of the ∆ company were overcome by carbon monoxide fumes in a
well they were attempting to decontaminate, ∏ (a doctor) went in to try to rescue
them even though he was warned of the fumes (∆’s negligence) and told that the
fire brigade was on the way, all three men died
(b) Held volenti failed, rescuer’s decision to rescue was made in an emergency, no
free consent given
(i) Danger invites rescue, therefore there is never true consent
(ii) Jerzy pointers:
(a) Volenti requires VAR, but in this case ∆’s negligence precedes ∏’s
act of assisting (policy reasons), therefore rescuer typically does not
know the exact extent of danger he is undertaking, and does not know
the negligent ∆

3.4 Did the plaintiff demonstrated agreement to incur the risk?

1. Bennett v Tugwell [1971] 2 WLR 847 – balance of probabilities
(a) ∆ drove his father’s car (covered by insurance), thought that the car was merely
insured to be on the road, when in actual fact it insured passengers whom he drove in
his car were insured against his negligent driving, decided to protect his father from
any liability arising from his driving by placing a notice on the car saying “warning:
passengers travelling in the vehicle do so at their own risk”
(b) ∏ accepted the notice, but sued ∆ nonetheless when the accident occurred
(c) Held volenti defence successful, as volenti is not about the agreement to be injured,
but the assumption of the risk of injury
(i) Test is objective, evinced from his conduct or words
(ii) No requirement of contract for ∏ to have assumed risk of harm, proven
simply on a balance of probabilities (df. Nettleship express waiver)
(iii) Would not work today – Motor Vehicles Act precludes volenti

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2. Nettleship v Weston [1971] 3 WLR 370 – express waiver
(a) ∏, an experienced driver, agreed to give a friend’s wife, ∆, driving lessons in her
husband’s car, after satisfying himself that the car was insured against risk of injury to
a passenger. They got into an accident, ∏ suffered injuries including a broken knee-
cap
(b) Held volenti defence failed, ∆ liable for negligence
(c) Lord Denning MR opined that:
(i) Mere knowledge of the risk of injury per se (scienti non fit injuria) is
insufficient to raise the volenti defence
(ii) For volenti to apply, ∏ has to expressly or impliedly waive his claim for
any injury that may befall him due to ∆’s negligence
(d) Express waiver sets high bar for volenti defence
(i) Not applied as strictly today – who would agree to be injured by another
party? The defence would be rendered so narrow as to be useless
3. Dann v Hamilton [1939] 1 KB 509 – agreement via conduct
(a) ∏ knowing ∆ was drunk, still entered his car, accident (∆ died, ∏ injured)
(b) Held volenti failed as ∆ was not so drunk that taking a lift from him was engaging in
an intrinsically dangerous activity
(c) Only in extreme scenarios where the inherent danger of the activity is so high that
the mere participation in it is sufficient to evince an implied assumption of the
risk of harm, can volenti be established
(i) Intermeddling with an unexploded bomb
(ii) Walking on the edge of an unfenced cliff

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4. Morris v Murray [1991] 2 WLR 195 – agreement by conduct
(a) Drunk pilots – ∏ and ∆ decided to fly a light aircraft drunk (and in really bad stormy
weather), ∏ drove to the car to the airfield, ∆ flew the plane, crash killed ∆ and
severely injured ∏
(b) Held volenti defence succeeded by conduct
(i) Element 1 – ∏ had to know of the risk, held he was not drunk enough that he
did not know what he was doing
(ii) Element 2 – ∏ had to implicitly waive his right to damages by going on a
joyride, joyride in this case was an intrinsically and obviously dangerous
operation (cf. Dann)

3.5 Interaction between breach and volenti

1. Wooldridge v Sumner [1962] 3 WLR 616 – sporting events
(a) ∏, a photographer at a horse race, was injured by the horse belonging to ∆, which was
ridden in a competition by a separate skilled and experienced horseman
(b) Found no breach in sporting situations, where spectators are close to potentially
hazardous activities
(i) No breach means no analysis of volenti in the first place
(c) If competitor was acting within the rules of the sport (adequate skill and
performance), volenti will be available
(d) Volenti cannot be available when the conduct is unreasonable
(i) The participants’ conduct is such as to evince a reckless disregard of the
spectator’s safety

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4 CONTRIBUTORY NEGLIGENCE

4.1 Explanation
1. In contributory negligence, the ∆ argues that ∏’s own careless is partially responsible for the
harm ∏ suffered, thereby reducing ∆’s liability but does not extinguish it entirely.
2. Two steps when looking at contributory negligence: (burden of proof on ∆)
(a) Establishing ∏’s fault (he did not take care of himself, a factual issue)
(b) Apportionment – how much to reduce ∏’s damages by?

4.2 Statutory approach

1. Contributory Negligence and Personal Injuries Act
(a) §2 (Interpretation) – “fault” means negligence, breach of statutory duty or other act or
omission which gives rise to a liability in tort or would, apart from this Act, give rise
to the defence of contributory negligence
(b) §3(1) (Apportionment of liability in case of contributory negligence) – where any
person suffers damage as the result partly of his own fault…damages recoverable in
respect thereof shall be reduced to such extent as the court thinks just and equitable
having regard to the claimant’s share in the responsibility for the damage
(i) Framing of s 3(1) of CNPIA precludes a finding of 100% contributory
negligence, simply because it’s illogical
(a) Pitts v Hunt [1990] 3 WLR 542 at 560, “logically unsupportable and
to use his own words, ‘defies common sense.’ Such a finding is
equivalent to saying that the plaintiff was solely responsible for his
own injuries, which he clearly was not”
(b) One of the elements is likely undermined anyway (such as causation)

4.3 Establishing plaintiff’s fault

1. Asnah bte Ab Rahman v Li Jianlin [2016] 2 SLR 944 (SGCA)
(a) ∏ pedestrian was knocked down by the ∆ taxi driver on a pedestrian crossing
although the signal was in his favour, ∆ raised partial defence of CN on the ground
that ∏ could avoid the accident by remaining attentive during the crossing
(b) Held 15% CN (Menon CJ dissenting)
(i) CN is premised on ∏’s foreseeability of the risk of harm befalling him if
failed to take reasonable steps to guard against the foreseeable harm (∏
breaching a duty owed to himself)
(ii) Standard of care that ∏ is adjudged by is the reasonable person standard

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2. Pollman, Christian Joachim v Ye Xianrong [2017] SGHC 229
(a) Cyclist got hit by a car and was injured, driver conceded negligence but contested
CN, held driver 100% at fault
(b) Clarified that assessment of fault is a fact-specific exercise; cases hold little
precedential value, each case ∆ must prove on a balance of probabilities that ∏ was
contributory negligent (that he breached a duty owed to himself)

4.4 Apportionment
1. Cheng William v Allister Lim & Thrumurgan [2015] 3 SLR 201
(a) ∆1 is fraudulent seller, businessman ∏ paid for a shophouse thinking it had a
remaining lease of 62 years to the seller, with solicitor ∆2 brokering the deal. ∏ later
discovered the shophouse had a remaining lease of only 17 years, sued solicitor, who
then brought third-party proceedings against the seller and property agent
(b) Held ∏ 15% CN (first determined the damages to be awarded to the claimant),
while 85% was split among ∆1 seller (65%), ∆2 solicitor (30%), ∆3 property agent
(5%), apportionment exercise took into account:
(i) Relative moral blameworthiness
(a) [46] “The term “blameworthiness” is broad and it gives the court the
flexibility to take into account a wide range of conduct to arrive
at a just and equitable result in a myriad of situations…
necessitates a value judgment and, as rightly pointed out by the
Judge, there are cases which demonstrate that the courts will take
fraud and dishonesty into account”

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 (ii) Relative causal potency
(a) [45] “The court should have regard to both the culpability of the
various parties and to the extent to which each party’s conduct
‘caused’ the damage in question”
2. Jackson v Murray [2015] 2 All ER 805 (UKSC)
(a) 13 y.o. girl gets off a school bus and crosses the road without checking for cars, ∆
going too fast and collides the girl, held 50% CN
(b) Used the same 2 factors seen in Cheng William – moral blameworthiness and
causative potency of parties’ conduct
3. Asnah bte Ab Rahman v Li Jianlin [2016] 2 SLR 944 (SGCA)
(a) For facts, see 4.3.1; held 15% CN
(b) Affirmed Cheng William and Jackson in setting out the principles of apportionment
based on the two factors
(i) [118] “Apportionment is finding upon a question, ‘not of principle or of
positive findings of fact or law, but of proportion, of balance and relative
emphasis and of weighing different considerations’... amongst the many
considerations that may fall to guide the exercise of the court’s discretion,
two aspects stand out…”
(ii) [120] “To reflect the greater causative potency and blameworthiness of the
Appellant’s atrocious driving, we reduce the respondent’s damages by a
modest 15%”
(c) Drivers easier to be held liable
(i) [119] “Drivers, unlike pedestrians, are in a position to cause harm. In cases of
motor accidents, courts tend to hold motorist as the more culpable party
having regard to the “destructive disparity” between a driver and a
pedestrian”
(d) No hard and fast rule when it comes to apportionment – it is at core a highly fact-
sensitive exercise [119]
4. Ng Weng Cheong v Soh Oh Loo & Anor [1993] 2 SLR 336
(a) Crossed the road when the “red man” had come on, knocked down by bus, held ∏’s
negligence contributed to the accident happening (counter-factual – would not have
happened if not for his negligence), ∆ only 30% liable

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5. Pritchard v Co-operative Group Ltd [2011] 3 WLR 1272
(a) Fight between store manager and an employee (∏), ∏ subsequently sued the store,
store claimed CN as ∏ was also involved in the fight
(b) CN cannot apply to intentional torts – battery and assault cannot apply

4.5 Children and the mentally disabled

1. Ang Eng Lee v Lim Lye Soon [1985-1986] SLR(R) 931 (SGCA)
(a) Boy crossing road gets hit by car, ∆ held 66% responsible
(b) SGCA decided that an 8 y.o. boy could be CN for not exercising reasonable care
when crossing the road, but the standard of care is that of a person of ordinary
prudence at the same age as the ∏
2. Town of Port Headland v Reece William Hodder [No 2] [2012] WASCA 212
(a) Diving block was place at the shallow end of a pool, mentally disabled ∏ jumped in
and hit his head on the floor, becoming paralysed
(b) Held SOC not lowered for the mentally disabled, but there was no CN on the facts
anyway (a reasonable person would have done the same thing)

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