Specific defences available to you when facing a claim in negligence

The purpose of this article is to bring you, a road user, to attention of the common defences available in a motor accident claim. It should be noted that the common defences stated in this article are not exhaustive and that it is of extreme importance that you as a road user seek proper legal advice if you are unsure whether a particular defence applies to the facts at hand in your situation.


Contributory Negligence

You have to prove that the claimant did not in his own interest take reasonable care of himself and contributed, by his want of care, to his own injury. A person may also be guilty of contributory negligence if he ought to objectively foreseen that his failure to act prudently could result in hurting himself.

Burden of Proof – The onus is on you to prove contributory negligence on the part of the claimant.

Once contributory negligence has been proved, the question in the spotlight would be that of the extent to which it would be just and fair to reduce the claimant’s damages having regard to the contribution by the claimant to his own injury/death.

Example: – In an accident where the claimant’s car had collided with your car while you were turning onto a major road from a minor road and assuming the Court finds that you had failed to give way to the claimant who was coming from his right, the Court would find that you were far more at fault and ought to bear a greater share of responsibility for the accident. However, the Court could also find that the claimant was contributorily negligent in failing to keep a proper lookout and apportion 80% of the liability to you and 20% against the claimant.


Agony of the moment [Doctrine of alternative danger]

If the claimant is placed in a situation of imminent danger through your fault, the claimant who acts reasonably to extricate himself from danger is not guilty of contributory negligence even if, through his evasive actions, he unintentionally aggravated the situation or caused more harm. All that is required of the claimant’s conduct is that it should not have been unreasonable, taking into account the exigencies of that particular situation.

Example: – In an accident where you drove a bus and stopped at the side of the left lane to alight a passenger and you go on to shift into the right lane from a stationary position after alighting the said passenger, the swerving and collision of the claimant’s motorcycle into your bus (in attempt to perform an evasive manoeuvre to avoid collision) could leave you 100% liable for the accident. You had placed the claimant in a dangerous situation and his actions to avoid a collision with you were that of a reasonably prudent man. Therefore, there would have been no negligence on the claimant’s part in the accident.


Inevitable accident

In order for you to establish this defence, you have to show that you could not, by exercising ordinary care, caution and skill, have prevented the accident. In consideration of whether you have made out your defence, the claimant’s allegation of negligence also has to be considered in the same light.

Example: – While you were driving your vehicle, your right rear tyre bursts and you lightly step on the brakes and your vehicle veered to the right. You then corrected your vehicle’s alignment and stepped hard on the brakes with a view to bring the vehicle to a complete stop but instead, it veered right and went off the road to cause an accident. Your actions after the bursting of the tyre would not be negligent and the Court would find the accident to be inevitable as there is no basis for holding that your reactions were different from those of an ordinary and careful driver placed in the same situation.


Involuntary act

This defence is established when you are able to prove that you were in a state of ‘automatism’ and that you suffered a complete loss of consciousness. You will escape liability only if your actions at the relevant time were wholly beyond your control. It should also be noted that this defence is very rarely used in practice.

The burden of proof is on you to prove that due to your medical condition, your actions at the time of accident were wholly beyond your control.

Example: – You are driving a lorry and you fail to negotiate a left-hand bend and crash into the claimant’s premises causing extensive damage. At the time of the accident, your consciousness was impaired by a malfunction in your brain caused by a deficiency of glucose, a condition known as malignant insulinoma. There would be no reason in principle as to why you should not be allowed to escape liability when you were unaware of your own actions.


Agreement to run the risk: Volenti non fit injuria

In order to succeed with this defence, you must prove that the claimant had agreed, whether expressly or impliedly, to run the risk of any harm or injury that may be inflicted on him due to your negligence. In the context of motor accident cases, the claimant would usually be a pillion on a motorcycle or a passenger in a motorcar.

Example: – In some cases, if you were the driver of a motorcar and you were very clearly drink driving and even if it was held that the claimant was fully aware of your intoxicated condition, it could be held that the claimant did not impliedly consent to run the risk of injury or absolve you from liability for any negligence on your part. Conversely, there may also be cases where the drunkenness of the driver at the material time is so extreme and so glaring that to accept a lift from him would be akin to engaging in an intrinsically and obviously dangerous act. In this particular scenario, the Court could hold that the defence of volenti non fit injuria would apply.