Question

One night Johnny accepts a lift to work from one of his chefs, Sam, who has had his driving licence for only two weeks. On the way to work it starts raining heavily and Sam appears to have trouble keeping his vehicle on the road. Johnny asks Sam to slow down, but he continues driving at the speed limit. Shortly afterwards, Sam loses control of the vehicle and hits a telegraph pole. Both Johnny and Sam are injured.

If Johnny were to sue Sam in the tort of negligence, would he be likely to succeed? In your answer focus on whether or not Sam could rely upon the defence of contributory negligence?

Answer 1

Voluntary assumption of Risk:

If it could be established that the plaintiff can be fully aware of the risk at the time of accident and if they voluntarily assumed the risk, then the defendant is relieved from the liabilities.

It must be proved that the

1) the plaintiff has the full knowledge and appreciation of risk

2) the plaintiff is freely and willingly accepted to the risk

In the given situation, Johnny does not have any prior knowledge of the accident because it rained and the vehicle troubled only on their way to work but not prior to their start to work and he didn't freely and willingly accepted the risk of car accident

Hence, Sam the defendant cannot rely upon the defence of voluntary assumption of risk.

Contributory Negligence:

If it can be proved that the plaintiff has contributed in some or the other way to their own loss or injury, then there will be a partial defence to the defendant. The liability will be apportioned between the plaintiff and defendant. To be determined if there is neliglince on the part of plaintiff, whether standard care has been taken by the plaintiff if a person in place of plaintiff position.

Johnny did not contribute the loss or injury caused to him and he also take standard care to avoid the loss asking Sam to slow down the car.

Hence, Sam could not rely upon the defence of contributory negligence