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Defenses in Negligence

Step 1: Defense of Contributory Negligence damages are apportioned


Where [P] suffers damage partly as a result of his own fault & partly due
to the Ds fault, claim in respect of the damages is not defeated by reason
of the Ps fault but damages recoverable are reduced to such an extent as
court thinks just and equitable, (LARCO CAP 23 s.21 (1))
#1
#2

D
Standard of Care for P: A person is guilty of CN if he ought reasonably
to foresee that, if he did not act as a reasonable prudent man, he migt hurt
himself; and in his reckonings he must take into account the possibility of
others being careless (Jones v Luvox Quarries Ltd [1952])
I.

Professionals P must conform to standard of an average man

of his profession.
Wheeler v Copas
P (bricklayer) borrowed ladder from farmer fell while
[1981]
carrying heavy things on it
50% reduction: professional bricklayer should
know ladder not safe for carrying heavy things
Chan King Wan &
2 scaffolder died when partly constructed scaffold outside
Anor v Honest
a bay window detached danger faced was too obvious Scaffold General
court held P (deceased) liable for contributory
Contractor Co Ltd &
40% reduction for joint liability (Ps), D2 liable for
Anor (No 2) [2000]
60%
Hondon
P (purchaser) failed to alert Ds (solicitors) about
Development Ltd &
difference between provisional sale & purchased &
Anor v Powerwise
formal agreement. P bought land of lesser value & sued
investments Ltd &
D. Solicitors pleaded contributory negligence for D not
Ors [2006]
telling them.
CN failed because even if D alerted P, no
difference either way.
II. Children where child P is concerned, the degree of care
reasonably expected of him is that of child in his situation (Lynch v
Nurdin (1841))
Wong Shek Hung v
Ps figure was injured when she tried to slow the speed of
Pentecostal Lam Hon the spring door by slipping her finger on the edge
Kwong School [2001] spring door malfunctioned & closed rapidly
No CN because childs young age
Malfunction door: does not cost much to avoid
injury
Ho Kwai Loy v Leung P (6 years old boy) ran in response of a call from her
Tin Hong & Anor
sister - ran out behind a parked car got knocked down by
[1978]
oncoming vehicle
No CN because it depends on whether in that

situation, Appellant (P) could take precauti


Moorales v Eccleston 11 year old girl injured while crossing the road
[1991]
75% CN older children held to higher standard of
care
Liu Tat- chor v Liu
12 year old boy held 2/3 responsible for road accident.
Fook-tim
(unreported, 1974;)
III. The infirm allowance to age & physical condition
i)
Degree of CN of a pedestrian who is old & infirm may be judged
by taking into consideration factors such as he cannot move
fast/make quick judgment on the spot (Doly v Liverpool Corp
[1939])
ii)
Higher duty is owed to blind pedestrians (Haley v London
Electricity Board [1965]
iii)
Higher duty to feeble minded persons whose disabilities are
known or ought to have been known to D (Latham v R Johnson
and Nephew [1913])
IV. Employee: employee undertaking an activity in course of his
employment owes a duty of care to himself & will be liable to a
reduction of any award if found in breach. Depends on
(1) Level of skills & experience of the employee
(2) Degree of pressure imposed upon an employee by his employer
to maintain orincrease output at the expense of caution and
(3) Degree of familiarity the employee has with the activity that
caused the injury
***Worker who consents to keep working in unsafe enviro.
usually not CN
Chow Cheung Ching D asked P to cut wooden strips with unguarded electrical
v Right Base
circular saw P lost balance & slipped figure cut P
Construction &
not given instruction & not skilled in carpentry & was tired
Engineering Co Ltd & D argued 50% CN
Anor [2002]
CN for P not found because slip of foot was
momentary inadvertence.
Mak Woon King &
Employee contributing to accident by his own
Anor v Wong Chiu
momentarily inadvertence in the context of repetitive
[2000]
fatiguing work can not be considered CN at all
Cheung Hei Kwong v On construction site P slipped on leather straps scattered
Kwong Key
carelessly - D (employer) was in breach of safety
Construction &
regulations under the Construction Sites (Safely)
Engineering Ltd,
Regulations (Cap 59 Sub Leg), reg 38 A.
[2003] 2 HKLRD
Even if P did not pay full attention of what he was
E14, CFI
doing, still did not absolve Ds duty, NO CN
Mohammad Waheed P carried two bags of 25kg rice on his shoulder to the
Khan v Rising Sun
kitchen of a restaurant. The risk of overloading oneself
Transportation
was obvious & P again carried heavy weight despite
Company Ltd [2012] being injured due to overloading one day before.

HKCU 2524
P should bear 30% of liability.
V. Car Passenger: act of not wearing a seatbelt or a helmet is
unreasonable, hence, considered as acting below the reasonable
standard of care
#3 Causation `