Essay Example on Based on the facts given by Mr Boyle you could plead the Defence

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Based on the facts given by Mr Boyle you could plead the defence of contributory negligence of the plaintiff In order to plead this defence you should fulfilled the elements of the this contributory negligence defence The first element is the plaintiff is not required to have a duty of care to you The duty of care is upon himself to act reasonably so as to avoid damage to himself According to the case of Jones v Livox Quarries Ltd it was held that the plaintiff does not need to have a duty of care towards the defendant as the duty carried out by the plaintiff should practiced correctly to avoid any damages against himself 3 The second element of contributory negligence would be the plaintiff has failed to make reasonable care of himself by behaving unreasonably This is where the plaintiff failed to take reasonable steps to take care of himself or avoid himself from getting injured In the case of Foong Nan v Sagadevan The Chief Justice Malaya H T Ong said that contributing negligence means the failure by a person to use reasonable care for the safety of himself contributing by his way of care to his own injury In the case of Lai Yew Seong v Chan Kim Sang the Supreme Court in holding the plaintiff 100 contributorily negligence means the failure by a person to use reasonable care for the safety of himself or his property so that he becomes the author of his own wrong 4 The third element is the act or omission must be the cause of plaintiff injury which must be of a type reasonably foreseeable from his act or omission

Therefore the main element of contributory negligence is unreasonable behavior of the plaintiff This is because his unreasonable behavior in his own safety which results in foreseeable damage to himself In the case of Govinda Raja Anor v Laws it was held that what was done or omitted to be done by the plaintiff in the agony of the moment cannot be fairly treated as negligence and therefore there was no contributory negligence on the part of the plaintiff What amounts to contributory negligence is stated expressly by Bucknill J in his judgement in Davis Swan Motor Company He said at the page 308 when one is considering the question of contributory negligence it is not necessary to show that the negligence constituted a breach of duty to the defendant It is sufficient to show lack of reasonable care by the plaintiff for his own safety In the case of Lim Kar Bee v Abdul Latif Bin Ismail the judge stated that in order to plead contributory negligence the plaintiff s act must be the reason for injured plaintiff himself suffered In another case of Choh Nyee Ngah Anor v Syarikat Beruntong Sdn Bhd the defendant pleaded contributory negligence on the part of the deceased It was alleged that the deceased had jumped out of the lorry came to a stop and that had he remained in the driver's cabin he might not have suffered injuries or died So the defence failed here 5 In considering all those elements here the boy named Alvin you hit becomes reason for his own injuries This is because on your side you have been take the sufficient precautionary steps by not driving the car at an excessive speed but in fact comparatively slower than the average speed of other vehicles in the area You just cannot avoid from hitting 



Alvin because he suddenly appeared in front you Therefore Alvin does not require to have a duty of care to you But he failed to take reasonable steps to take care of himself by behaving unreasonably and also his act is the cause of his injury 6 Moreover any damages that occurs must be caused or contributed by the plaintiff In the case of Sundram A L Ramasamy v Arujunan A L Arumugam Anor on the defence of contributory negligence it was found that the plaintiff was not in a position to get up and run to the side of the road to avoid being run over by the car and so the defendant failed to prove that the plaintiff s act of lying in the middle of the road caused or contributed to his injury So that here we have to prove that you are not able to stop your even though you drove your car in slower pace because of his sudden appearance And we also need to prove that the boy Alvin s act is a sudden act Therefore we can ensure that the damage is caused or contributed by the plaintiff Alvin 7 However since the plaintiff is 8 years old we still could bring the defence of contributory negligence of children

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