The Star
ARTICLES OF LAW
By Bhag Singh
ARTICLES OF LAW
By Bhag Singh
Every individual who is involved in an accident is entitled to compensation if the accident is caused by the negligence of another.
A READER wants to know whether a pedestrian can cause or contribute to an accident. And does it make a difference if the person injured is a foreigner?
When an item is damaged, the cost of repairs or replacement can easily be worked out. However, for personal injuries suffered, decided cases try to quantify in money terms what would be acceptable compensation, for the pain and suffering, and loss of amenities.
It is the party at fault which will have to pay and this will be on the basis of negligence. Negligence is the failure to exercise due care when the circumstances so demand. When there is no duty to exercise care, negligence it is said, has no role to play.
Under the existing framework of law, if a person cannot identify whose negligence caused him to suffer damage or injury, there will be no recourse to anyone. He will have to bear his own loss unless there is a scheme for ex-gratia payments.
Important facts
In determining whether there is negligence, the facts in each case have to be carefully examined. Lord Dunedin aptly said in Fardon vs Harcourt: “What is negligence depends on the facts with which you have to deal. If the possibility of the danger emerging is reasonably apparent, then to take no precaution is negligence, but if the possibility of danger emerging is only a mere possibility which would never occur to the mind of a reasonable man, then there is no negligence in not having taken extraordinary precautions.”
In the light of the question posed earlier, can there be negligence on the part of a pedestrian who is merely walking on the road but at the side? One is inclined to think in terms of an accident caused by a vehicle. But can a pedestrian cause or contribute to an accident?
It is not beyond the individual who is a pedestrian, to cause an accident or at least contribute to it. One such case is that of Sukatno vs Lee Seng Kee where the plaintiff was an Indonesian worker. A van driven by the defendant collided into him. He was immediately knocked unconscious and became paralysed from the waist downwards.
The driver of the van was held liable for negligence but the individual did not get compensated in full. He was equally to be blamed for the accident. The court accepted the contention by the defendant that there was contributory negligence on the part of the injured individual.
The reason for this was that the plaintiff was, prior to the collision, walking on the side of the road and not off the road. As a result, the court held that there was contributory negligence and as such awarded him only 50% of what he would otherwise have obtained.
Contributory negligence
If a person is walking on the kerb or off the road or on the side table as it were, it could be said that such a person would generally be free of blame. However, where he were walking on the road even though not in the middle, he could end up being blamed to a certain extent as happened in this case.
Such a situation was explained in Caswell vs Powell Duffryn Associated Collieries Ltd where Lord Porter went on to say that “the injured party did not in his own interest take reasonable care of himself and contributed, by this want of care, to his own injury.”
This is because when contributory negligence is used as a shield against the obligation to satisfy the whole of a plaintiff’s claim, the principle involved is that, where a man is part author of his own injury, he cannot call on the other party to compensate him in full.
Generally when two parties are moving in relation to one another as to involve risk of collision, each owes to the other a duty to move with due care, and this is true whether they are both in control of their vehicles, or both proceeding on foot, or whether one is on foot and the other controlling a moving vehicle.
If it were not so, the individual on foot could never be sued by the owner of the vehicle for damage caused by his want of care in crossing a road, for he would owe to a plaintiff no duty to take care.
Thus, some judges have disagreed with Lord Denning’s statement in Davie’s case where he said “when a man steps onto the road, he owes a duty to himself to take care of his own safety, but he does not owe any duty to a motorist who is going at an excessive speed to avoid being run down”.
Effect on compensation
In the Sukatno case, it was contended that the injured person should not be entitled to an award for loss of earnings because he was a foreigner living in Malaysia illegally. The allegations were no doubt made without adequate and sufficient supporting evidence and so deserved little consideration.
However, even if it be otherwise, the question that arises is what “working illegally” means. Does it refer to a person being an illegal immigrant or a person who has come to the country legitimately but breaches a condition on which he is allowed in?
In this case, the court decided on the basis of there being no wrongdoing in that regard. It may not in all instances be enough to deny liability. This would be a more potent argument in a situation where rights under contract are being pursued and illegality is relied upon as a defence.
In the Singapore case of Ooi Han Sun & Anor vs Bee Hua May, the court took the view that despite evidence that the plaintiff had no work permit to come to Singapore, the maxim ex turpi causa non oritur actio (no cause of action arises out of a base cause) “had a limited application in tort and the fact that the plaintiff was involved in some wrongdoing did not of itself provide the defendant with a good defence in tort”.
However, the fact that the person has attributed some wrongdoing and the fact that the award he gets will have a substantially different value in his own country, may well be a consideration in deciding on the quantum.
Under the existing framework of law, if a person cannot identify whose negligence caused him to suffer damage or injury, there will be no recourse to anyone. He will have to bear his own loss unless there is a scheme for ex-gratia payments.
Important facts
In determining whether there is negligence, the facts in each case have to be carefully examined. Lord Dunedin aptly said in Fardon vs Harcourt: “What is negligence depends on the facts with which you have to deal. If the possibility of the danger emerging is reasonably apparent, then to take no precaution is negligence, but if the possibility of danger emerging is only a mere possibility which would never occur to the mind of a reasonable man, then there is no negligence in not having taken extraordinary precautions.”
In the light of the question posed earlier, can there be negligence on the part of a pedestrian who is merely walking on the road but at the side? One is inclined to think in terms of an accident caused by a vehicle. But can a pedestrian cause or contribute to an accident?
It is not beyond the individual who is a pedestrian, to cause an accident or at least contribute to it. One such case is that of Sukatno vs Lee Seng Kee where the plaintiff was an Indonesian worker. A van driven by the defendant collided into him. He was immediately knocked unconscious and became paralysed from the waist downwards.
The driver of the van was held liable for negligence but the individual did not get compensated in full. He was equally to be blamed for the accident. The court accepted the contention by the defendant that there was contributory negligence on the part of the injured individual.
The reason for this was that the plaintiff was, prior to the collision, walking on the side of the road and not off the road. As a result, the court held that there was contributory negligence and as such awarded him only 50% of what he would otherwise have obtained.
Contributory negligence
If a person is walking on the kerb or off the road or on the side table as it were, it could be said that such a person would generally be free of blame. However, where he were walking on the road even though not in the middle, he could end up being blamed to a certain extent as happened in this case.
Such a situation was explained in Caswell vs Powell Duffryn Associated Collieries Ltd where Lord Porter went on to say that “the injured party did not in his own interest take reasonable care of himself and contributed, by this want of care, to his own injury.”
This is because when contributory negligence is used as a shield against the obligation to satisfy the whole of a plaintiff’s claim, the principle involved is that, where a man is part author of his own injury, he cannot call on the other party to compensate him in full.
Generally when two parties are moving in relation to one another as to involve risk of collision, each owes to the other a duty to move with due care, and this is true whether they are both in control of their vehicles, or both proceeding on foot, or whether one is on foot and the other controlling a moving vehicle.
If it were not so, the individual on foot could never be sued by the owner of the vehicle for damage caused by his want of care in crossing a road, for he would owe to a plaintiff no duty to take care.
Thus, some judges have disagreed with Lord Denning’s statement in Davie’s case where he said “when a man steps onto the road, he owes a duty to himself to take care of his own safety, but he does not owe any duty to a motorist who is going at an excessive speed to avoid being run down”.
Effect on compensation
In the Sukatno case, it was contended that the injured person should not be entitled to an award for loss of earnings because he was a foreigner living in Malaysia illegally. The allegations were no doubt made without adequate and sufficient supporting evidence and so deserved little consideration.
However, even if it be otherwise, the question that arises is what “working illegally” means. Does it refer to a person being an illegal immigrant or a person who has come to the country legitimately but breaches a condition on which he is allowed in?
In this case, the court decided on the basis of there being no wrongdoing in that regard. It may not in all instances be enough to deny liability. This would be a more potent argument in a situation where rights under contract are being pursued and illegality is relied upon as a defence.
In the Singapore case of Ooi Han Sun & Anor vs Bee Hua May, the court took the view that despite evidence that the plaintiff had no work permit to come to Singapore, the maxim ex turpi causa non oritur actio (no cause of action arises out of a base cause) “had a limited application in tort and the fact that the plaintiff was involved in some wrongdoing did not of itself provide the defendant with a good defence in tort”.
However, the fact that the person has attributed some wrongdoing and the fact that the award he gets will have a substantially different value in his own country, may well be a consideration in deciding on the quantum.
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