Contributory Negligence: A Fiji Law Case Study & Legal Opinion

This case study provides a legal opinion on a personal injury case in Fiji, focusing on contributory negligence. It analyzes the elements of negligence, including duty of care, breach, causation, and damages, referencing relevant Fiji case laws and the Law Reform (Contributory and Tortfeasors) Act. The opinion assesses whether the injured party's actions contributed to the accident and determines the percentage of negligence attributable to each party. It also considers the statutory limitation period and identifies the strengths and weaknesses of the case, along with potential witnesses. The analysis concludes that the case involves contributory negligence, where the defendant is liable only for their share of the negligence, with the plaintiff bearing the remaining responsibility due to their failure to exercise reasonable care. The claim was made within the statutory limitation period.

Running Head: CONTRIBUTORY NEGLIGENCE
CASE STUDY (CONTRIBUTORY NEGLIGENCE)
Name of the Student
Name of the University
Author’s Note

1CONTRIBUTORY NEGLIGENCE
The issue in the case is whether the act of Caroline has amounted to contributory
negligence.
Negligence: when the duty of care as owed to the defendant towards the plaintiff is
breached by the defendant and such breach has caused harm or damage to the plaintiff, then the
tort of negligence arises. The core idea of the negligence is that the people should exercise
minimum standard of care which acting upon in any circumstances and any failure exercising
such care shall amount to potential harm or damage to the plaintiff. The most important aspect in
this scenario is that harm should be predictable in nature. This means that the reasonable care
should be taken against the harm which, is foreseen by the person in all circumstances. Thus, it
can be inferred that the negligence is the failure to exercise care against one party and such
breach of duty of care has amounted to the harm or damage to the plaintiff. The landmark case
law in this topic was the Donoghue vs. Stevenson1. It was further applied to the Caparo
Industries Plc vs. Dickman2 and these were used to persuade the decision followed in Grant vs.
Australian Knitting mills3. In Fiji, the law of negligence is treated as the contributory negligence
where the defendant shall be liable only for the percent of damage being caused by his or her
negligence4.
1 [1832] UKHL 100
2 [1990] UKHL 2
3 [1935] AC 85
4 Takiveikata v State [2008] FJHC 315

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Elements of Negligence: the core elements for the determination of negligence are5: Duty
of Care: it means that the defendant owes the duty of care towards the plaintiff. This duty of care
should be reasonable in nature6. The determination of reasonability in the context means that the
care should be reasonable and in quantum to the harm being predicted by the party7.
Breach of Duty of care: this means that the duty of care being obliged by the plaintiff to the
defendant has been breached by the defendants act or omission of an act8. This means that the
duty of care has not been exercised by the defendant and hence, the plaintiff is exposed to the
harm been caused due to the failure to exercise care in the regard9.
Damages: this means that the failure to exercise such duty has caused harm to the plaintiff.
Damages mean the harm being caused to the plaintiff10. However, the claim can be made only for
the actual cost of the harm being caused. This means that the damages or the claim for the
damages can only be made for the recovery of the actual loss being caused to the person11.
Causation: this is the most important element which means that the cause of harm should be
the breach of duty. In other words, the proximity of harm should be in quantum with the breach
5 Owen, David G. "The five elements of negligence." Hofstra L. Rev. 35 (2006): 1671.
6 Alipate Karikari vs. The State [1999] 45 FLR 310
7 Symmons, C. R. "The Duty of Care in Negligence: Recently Expressed Policy Elements-Part I." Mod. L.
Rev. 34 (1971): 394.
8 Anthony Steven v. R - 17 F.L.R. 48
9 Winfield, Percy H. "Duty in Tortious Negligence." Colum. L. Rev. 34 (1934): 41.
10 Shailed Shandil and Another vs. Air Fiji Limited [2005] FJCA 25 (15 July 2005).
11 Warren, Charles. "Volenti Non Fit Injuria in Actions of Negligence." Harv. L. Rev. 8 (1894): 457.

3CONTRIBUTORY NEGLIGENCE
of duty12. The harm should be the proximate outcome of the failure to exercise the duty of care
towards the plaintiff13.
Contributory Negligence: this is the defense been provided against the claim of
negligence meaning that the defendant states that plaintiff has also breached the duty of care that
a reasonable man should have exercised in any circumstances14. Thus, the theory of contributory
negligence means that the plaintiff himself or herself is at fault and hence the harm caused to the
plaintiff is not the lone outcome of the negligence of the defendant and therefore, the act of
contributory negligence is the waiving off the liability arising from the negligence of the
defendant. The plaintiff is equally at fault against the harm being caused to him or her. However,
the modern law has developed the idea of comparative negligence meaning that the defendant
shall be liable only for the part of negligence being caused by him or her. In Common Law, the
accepted strategy is that the defense of contributory negligence if proved shall waive the
defendant from the complete liability of the harm caused to the plaintiff. However, the
comparative negligence states that the defendant shall not be entitled to the complete immunity
but to the part of the negligence caused by the plaintiff only.
Law Reform (Contributory and Tortfeasors Act) of 1946 of Fiji, Section 2-5: this is the
codified legislation of the Fiji Islands relating to the idea of the contributory negligence. Section
2 of the Act states the definition of the related terms whereas the section 3 specifically states the
acceptability of the idea of the comparative negligence meaning that the defendant shall be liable
only for the part of the negligence being caused by him or her. However, the provision also lays
12 Naushad Ali vs. State Criminal Appeal No. HAA 0083 of 2001
13 Hylton, Keith N., and Haizhen Lin. "Negligence, causation, and incentives for care." International
Review of Law and Economics 35 (2013): 80-89.
14 Froom vs. Butcher [1976] 1 QB 286

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down that the contractual remedies shall also continue to operate even if the provisions of this
Act has been implied to then concerned facts and circumstances of the case. The provision of law
is based on the doctrine of the volunti non fit injuria15 meaning that the plaintiff is voluntarily at
fault for the injury caused. Further the Collision Convention of 1910 has stated that in case of
collision between the two vehicles, the liability shall be distributed between the two parties16.
Statutory Limitation period: Section 16 of the Limitation Act 1971 states that if the
decisive character of the plaintiff has been lost and have been out of knowledge until for the
period of three years related to the cause of action or the period of 12 months until the date of the
expiry of three years , or in another case, the date was more than the period of 12 months from
the arising of the cause of action, such damages can be claimed.
In the given scenario, it can be explained that Caroline and Shubha were friends and that
Caroline had lent her bicycle to Shubha on one fine day for cycling. Caroline had exercised her
duty of care towards Shubha when she provided her with the tip for the safe cycling. Therefore,
it can be inferred that the duty of care was exercised by Caroline and thus, she cannot be held
liable for the tort of negligence.
In the next scenario, it can be noted that the weather was rainy just before the accident.
The rainy season implies that the roads become very slippery and hence, Shubha was negligent
on her part to assess the dangers of cycling after the rain on a wet road. It can be argued that the
car was in a rush but it has already been witnessed in a statement that the car was not in a rush as
such and therefore, the liability cannot be imposed on either the car driver.
15 Priestly v Fowler (1837) 3 Mees & Wels 1
16 The Oropesa [1943] 1 All ER 211

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Caroline can plea for the defense of contributory negligence against Shubha stating that
as any treasonable person, Shubha should have been careful while assessing the dangers of
cycling on a wet road, that too on a hill where the downslopes become very slippery after the
downpour. This is the defense been provided against the claim of negligence meaning that the
defendant states that plaintiff has also breached the duty of care that a reasonable man should
have exercised in any circumstances.
Therefore, it can be said that Shubha was equally at fault when it came to the
reasonability of the assessment of the situation and analyze the dangers related to the same. Any
reasonable man would not have cycled in the wet roads that too the down slope of the hill which
becomes quite slippery after the rain. Therefore, her unreasonable assessment of the dangers
related to the situation has led to the accident and hence the injury caused is due to the
application of the doctrine of volunti non-fit injuria. This means that the injury caused to the
person is due to their voluntary actions that may have unreasonably analyzed the dangers of the
situation.
In other words, the strength of the case against Caroline is that she was the owner of
the cycle and she should have ensured the safety of the borrower and the damage caused to
the borrower is the liability of the owner of the vehicle. However, it has been established that
the borrower and the owner of the vehicle has no relationship to that of the agent and the
principle or that of the employer and the employee and hence, the liability cannot be imposed on
the owner of the vehicle. Therefore, the strength of the case against Caroline has been
defeated by the fact that there was no relationship to that of the agent and the principle
between the borrower and the owner of the vehicle. Mere borrowing of the things does not
establish the relationship of the agent and the principal or that of the employer and the employee

6CONTRIBUTORY NEGLIGENCE
between the parties. Thus, no liability can be imposed upon Caroline. The strength of the case
against the car driver is that the driver should have established care while driving.
The weakness of the case against Caroline is that the weather was rainy and hence
the roads were wet. It has already been established in an alibi that it had rained before the
accident took place and hence, the roads were already wet. It can be said that it was the duty of
the car driver to ensure that the person would have been cycling on the other side. In this case, it
can be said that since the alibi of the woman states that the car was not in a rush or speed,
thus, the car driver had already established his duty of care towards the other fellow riders
by ensuring that his speed was in control. However, applying the doctrine of the
contributory negligence, it can be explained that Shubha as a reasonable person should
have been careful about the circumstance following the weather and rainfall and hence, as
any other reasonable person, she should have refrained from cycling in the rain. But she
chose to cycle and knowing that the downhills of the slopes become more slippery after rain, she
did not exercise care over her action towards the riding of the bicycle and hence, leading to the
consequences of accident. Therefore, weakness of the case against Caroline is actually the
strength of the defense of Caroline against the allegations claimed by Shubha against
Caroline amounting to the analysis of liability. It can thus be said that analyzing the actions of
the parties, it can be stated that it was a case of contributory negligence and hence, Caroline shall
be liable only for the percent of negligent behavior caused by her and the car driver owes no
liability because he was not negligent.
Thus, implying the doctrine of Contributory Negligence, the defendant shall be liable
only for the percent of negligence being caused by him or her and remaining shall be borne by
the plaintiff himself or herself due to the failure to exercise the duty of care by one’s own-self

7CONTRIBUTORY NEGLIGENCE
and hence amounting to harm or damages. In this case, Caroline was the owner of the bicycle
and hence, she should have been careful about lending her things to others. However, Shubha
also owed the duty to be reasonably careful to not ride the bicycle after the downpour as any
other reasonable person would have been in that circumstances.
It has been explained that in contributory negligent cases, the liability is waived off
to the percent contributed by the plaintiff, if such plaintiff has contributed to the damages
and the negligent behavior to more than 50% or 51%. However, if such negligence falls
below 50% or 49%, then the plaintiff is not considered for the negligent behavior and
hence, the defendant is liable for the damages caused to the plaintiff. In the given scenario,
Shubha is liable for more than 50% or 51% of the negligent behavior. Caroline is not liable
because she contributed only 49% or less negligent behavior17.
The claim has been made within the period of 12 months from the date of the accident
and hence, no statutory limitation period shall be applicable in the given scenario.
Rajesh Singh is the owner and driver of the car with whom the accident was caused.
Wanda Chan was the witness to the accident. She was walking down the street when the accident
took place.
It can be concluded that the act of Shubha has amounted to contributory negligence.
Caroline and the Rajesh Singh has been waived off all the liability with respect to the accident
caused to Shubha.
17 Saumur vs. Antonaik [2016] ONCA 851

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BIBLIOGRAPHY:
Case laws:
Froom vs. Butcher [1976] 1 QB 286
Priestly v Fowler (1837) 3 Mees & Wels 1
Alipate Karikari vs. The State [1999] 45 FLR 310
Anthony Steven v. R - 17 F.L.R. 48
Shailed Shandil and Another vs. Air Fiji Limited [2005] FJCA 25 (15 July 2005).
Naushad Ali vs. State Criminal Appeal No. HAA 0083 of 2001
Takiveikata v State [2008] FJHC 315
The Oropesa [1943] 1 All ER 211
Donoghue vs. Stevenson [1832] UKHL 100
Caparo Industries Plc vs. Dickman [1990] UKHL 2
Grant vs. Australian Knitting mills [1935] AC 85
Saumur vs. Antonaik [2016] ONCA 851
Journals and Articles:
Owen, David G. "The five elements of negligence." Hofstra L. Rev. 35 (2006): 1671.
Symmons, C. R. "The Duty of Care in Negligence: Recently Expressed Policy Elements-Part
I." Mod. L. Rev. 34 (1971): 394.

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Winfield, Percy H. "Duty in Tortious Negligence." Colum. L. Rev. 34 (1934): 41.
Hylton, Keith N., and Haizhen Lin. "Negligence, causation, and incentives for
care." International Review of Law and Economics 35 (2013): 80-89.
Warren, Charles. "Volenti Non Fit Injuria in Actions of Negligence." Harv. L. Rev. 8 (1894):
457.