CONTRIBUTORY

NEGLIGENCE
Dr. Sonny Zulhuda
OUTLINE
 Definition
 Statutory Provision
 Elements
 Agony of the Moment
 C.N. by children
DEFINITION OF CONTRIBUTORY
NEGLIGENCE

CN is an
expression
which means
D must show P negligence
did not, on his materially
own interest, contributing to
take reasonable the injury…
care of himself ‘Negligence’
and contributed here is not used
Also defined in by that want of in its usual
s. 12(1) Civil care to his own meaning, not to
Law Act 1956 injury. mean a breach
Ong Ah Long v of duty…
 ONG AH LONG V DR. S. UNDERWOOD
[1983] 2 MLJ 324
 SYED AGIL BARAKBAH FJ

 that there is no question of contributory

negligence on the part of the respondent, that
the appellant was wholly to blame for failing to
pay attention to the presence of other road
users and in consequence thereof failed to allow
sufficient space between his van to enable the
respondent to pass safely.
 The learned Judge applied the correct test in
that the appellant had failed to prove that the
respondent did not… take reasonable care of
himself and contributed by that want of care to
the appellant of a van grazed
his own injury.
against the respondent's left
 The test for contributory negligence in the case
arm while he was walking
beside his car in a street in of a pedestrian is not whether he is under a duty
Ipoh. App argued CN because of care towards the defendant, but whether he
Resp had raised his elbow prior was acting as a reasonable man and with
to accident. reasonable care.
 KEK KEE LENG V TERESA BONG NGUK
CHIN [1978] 1 MLJ 61
 D’s car turned from a side road, which is the exit road
from the new General Hospital in Kuching, into the main
Jalan Tun Haji Openg along which P (the motor-
scooterist) was approaching when the latter was only 60
feet from the junction, there could be no circumstances
in which P could be held to be blamed, even partially, for
the accident. The distance was too short for the P to
stop

 D is an adult, licensed to drive and therefore presumably

he has acquired a knowledge not only of the Highway
Code but also of the ordinary precautions to be taken by
him for his own safety as well as for the safety of others.

 If he obtrudes himself on to the main road in

circumstances which make it impossible for traffic
coming behind him to avoid a collision, then I do not…
think there can be any doubt as to his entire
responsibility for the accident
 S. 12(1) CIVIL LAW ACT 1956 ON
APPORTIONMENT OF LIABILITY
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ELEMENTS OF CONTRIBUTORY
NEGLIGENCE
Two requirements:

 Foreseeability – case of Jones v Livox

Quarries Ltd [1952]
 CNrequires the foreseeability of harm to
oneself. A person is guilty of CN if he ought
reasonably to have foreseen that, if he did not
act as a reasonable, prudent man, he might be
hurt himself; and he must take into account the
possibility of others being careless.

 Causation – section 12(1) CLA 1956

SOME CASES OF CONTRIBUTORY
NEGLIGENCE
 Foo Kok Foo v Yap Hai Chwee [1972] 1 MLJ 153
P did CN for extending his left arm outside the window
(Held 25-75%).

 Siti Rohani bte Mohd Shah v Haji Zainal bin Saifiee

[2001] 5 MLJ 8
 NoCN even though the P rode motorcycle without a
helmet and no valid license…

 Low Kwan Moi v Ramli bin Jamil & Govt of

Malaysia [1984] 1 MLJ 46
 Police
was liable for Negligence, but deceased also for
CN for jumping into the river. (Held 25%-75%).
FOO KOK FOO V YAP HAI CHWEE [1972] 1 MLJ 153

Mohamed Azmi J:
“When traveling in a motor
car along a road where
traffic is heavy, whether as
a driver or a passenger, a
person ought to be
conscious that it is
extremely dangerous even
to rest his arm on the door
window with or without
the elbow protruding.

 The various follies of road users in a city… are so common

nowadays that they ought to be foreseeable and a prudent
man should, when traveling in such a place, keep both his
hands well inside his vehicle.”
AGONY IN THE MOMENT

 D cannot escape liability if the plaintiff, in the agony of

the moment tries to save himself by choosing a course of
conduct that proves to be the wrong one.

 P does not contribute CN if he acted in a reasonable

apprehension of danger and the method by which he tried
to avoid it was a reasonable one

 Case of Govinda Raju v. Laws [1966]

 Court: “what was done or not done in the agony of the moment
cannot be fairly treated as negligence.”

 Case of Choh Nyee Ngah v Syarikat Beruntong S/B [1989]

3 MLJ 112
 Deceased was not in CN for he was In the agony between
remaining in the lorry driver’s seat or jumping outside the lorry.
AGONY OF THE MOMENT:
GOVINDA RAJU V LAWS [1966] 1 MLJ 188

 D turns right at a junction while P on

motorbike was oncoming from an opposite
direction. P tried to avoid and swerved
right but finally knocked the rear side of
D’s car.

 Court: D was negligent, what P did could

not amount to a contributory negligence

“What was done or not done in the agony of the moment cannot
be fairly treated as negligence”

When a plaintiff is perplexed or agitated when exposed to danger by

the wrongful act of defendant, it is sufficient if he shows such
judgment and control in attempting to avoid the accident as may
reasonably be expected of him in the circumstances.
SYARIZAN BIN SUDIRMIN & ORS V ABDUL RAHMAN
BIN BUKIT & ANOR [2010] 8 MLJ 530
VT Singham J:

 “… in attempting to escape
apprehension in this police
pursuit… the first plaintiff took
a serious risk to himself and
other road users in riding his
motorcycle at such fast speed.

“Therefore, this court finds the first plaintiff had also

contributed to the damage he had suffered. Accordingly, the
damages have to be reduced as this court finds having regard
to the first plaintiff ’s share in the responsibility for the damage
(see s 12(1) of the Civil Law Act 1956).”
SYARIZAN BIN SUDIRMIN & ORS V ABDUL RAHMAN
BIN BUKIT & ANOR [2010] 8 MLJ 530

VT Singham J:

 As for not wearing crash helmet, a reasonable prudent

motorist in the position of the first plaintiff ’s position
would have foreseen that the wearing of crash helmet
might result is less harm or injury being caused to his
head if he is involved in a collision.. Accordingly, there
should be a deduction on the damages to be awarded for
his head injury.”

 Accordingly, liability should be apportioned at 75% against

the first defendant and 25% contributory on the part of
the first plaintiff for his want of reasonable care for his
own safety and failure to wear a crash helmet that had
contributed to his head injuries.
CN INVOLVING CHILDREN
 The court takes into account the age of the Plaintiff
in considering whether he is liable for CN,
depending on the circumstances.

 The standard of care of an older child is the degree

of care that may reasonably be expected from a
person in the plaintiff’s situation.

 Lembaga Letrik Negara, Malaysia v. Ramakrishnan

[1982]
 Court:
the test is whether an ordinary child of the
respondent’s age and experience – neither a “paragon of
prudence” nor a “scatterbrain” – would have taken any
more than did the respondent.
REVISE!
 Define Contributory Negligence from both
statutory and common law principles
 What does the word “Negligence” indicate
here?
 How does the court determine the amount of
contribution by the plaintiff?
 What is the test for plaintiff’s act in agony of
the moment?
 Can a child be liable of contributory
negligence?