i have a coursework on contributory negligence+insolvency. can you write that for me
'nyway keep it up the good work.
Yes I can help you on this
I assume that you know what the negligence means and how its connected with the contributory negligence. Contributory negligence is one of the defences to the negeligence. Other main defence is voluntary assumption of risk which is a separate topic under the law of delict.
First of all I will discuss the statute law regarding the contributory negligence. contributory negligence in English law and sri lankan law is now governed by the
law reform(contributory negligence) act of 1945 and the law reform (contributory negligence and joint wrongdoers) act no 12 of 1968 respectivly. The relevant setions of these acts are almost identical.
Part 1of the sri lankan act provided provision for the contributory negligence.
Section 3(1)(a) of part 1 of the act states that,
“Where any person suffers damage which is caused partly by his own fault and partly by the fault of any other person, a claim in respect of that damage shall not be defeated by reason only of the fault of the claimant, but the damages recoverable in respect thereof shall be reduced by the court to such extent as the court may deem just and equitable having regard to the degree in which the claimant was at fault in relation to the damage.”
And
section 3(1)(b) states that
“Damage shall, for the purpose of paragraph (a) of this sub-section, be regarded as having been caused by a person's fault, notwithstanding the fact that any other person had an opportunity of avoiding the consequences thereof and negligently failed to do so.”
It must be noted that statute law now governs the consequences of contributory negligence and is irrelevant to the question whether the pliantif was infact guilty of such negligence, which question continues to be decided according to the rules of common law.
Now it is important to consider what constitutes contributory negligence. It shoul be noted that contributory negligence of a plaintiff isn’t synonymous with the negligence of the defendant. In establishing the negligence of the defendant it is essential to show that he wes in breach of a duty of care towards the plaintiff. In providing contributory negligence, the question of duty of care dose not arise and all that is required is that the pliantif failed to take reasonable care of himself.
While in many instances the plaintiff’s negligence may have contributed to the accident which took place, this is nota an essential element of contributory negligence. It is necceray to prove that his conduct contributed to the damage which he sufferd.ex: a motor cyclist riding without a helmat maybe involved in an accident through not fault of his own. But if it can be proved that his lack of helmet contributed to the injuries he suffred, the compensation awreded him will be reduced accordingly.
On the other hand it must also established that the negligent conduct of the plaintiff, exposed him to the pariculer injury which was infact caused to him.in the case of aforementioned motor cyclist, if he has sufferd broken limbs rather than head injuries, his lack of helmet would be immaterial and the question of contributory negligence wouldnot arise.(see also dictum of
Krester Judge in the case of
Fernando vs
Rode -41 N.L.R 8 at P.11)
Assuming now that negligence on the part of the plaintiff has been proved, tha next thing the defendant has to prove is that negligence contributed to the accident. For that purpose read the
Jones vs Livox Quarries ltd-(1952) 2 Q.B 608.
The satndered of care expected of a plaintiff is an objective one and is generally the same as that required of the defendant when assessing his negligence(read the
Lord denings dictum of
Jones vs
Livox Quarries ltd)
As with other areas of negligence the standered of care required of the plaintiff will depend on the circumstances and there are certain recognized situations in which the plaintiff will not be held to have acted unreasonably
1. Pliatiff’s right to assume absence of danger-in the firstplace a plaintiff is entitled to assume that other s will act with due regard for his safty and need not take precautions against remort possibilities of danger.(
gee vs
metropolitan railway-L.R 8 Q.B 161)
2. The dilemma principle- where the plaintiff has been frighthend or agitated by danger caused by the defendants conduct he will not be penalized for error of judgment made in the circumstances.see
Jones vs
Boyce
3. Children and Disabled persons
And finally burden of proving contributory negligence on the part of the plaintiff is always on the defendant.(read the dictum of
Kanakarathna J in
perera vs
Charles-49 N.L.R 39)
this is short brief of contributory negligence.i think this will help you to do your course work. if you need anthing more don't hesitate to ask.and about insolvency ,tell me the perview of the insolvency that you need to know