Page 26 - Insurance Times May 2019

way to your own injury, you cannot collect damages. If 5. The defendant has the last clear chance to take
strictly applied such laws allow an injured person to recover reasonable action to avoid the accident, yet fails to do
damages even though he/she has contributed to the injury so.
and under this, if both the plaintiff/injured person and
defendant contribute to the plaintiff's injury, the financial General Defence:
burden of the injury is shared by both parties according to
A person is entitled to defend himself and members of his
the respective degree of faults.
family, in every instance of harm, which he is entitled to
cause in defence, must be reasonable in relation to the
Comparative Negligence - harm-he would have suffered.
In this type of defence technique if more than one negligent
party is found at fault, the liability amongst them will be Assumption of risk;
distributed according to the evidence percentage of their This doctrine is another defence that can be used to defeat
faults. The liability of defendant is reduced by the extent
a claim for damages and a person who understands and
to which the plaintiff was contributively negligent. If the recognises the danger inherent in a particular activity
plaintiff was 20 percent negligent, the defendant is liable cannot recover damages in the event of an injury. The
for only 80 percent of the plaintiff's damages.
assumption of risk bars recovery of damages even though
another person's negligence causes the injury. The person
Last but clear chance rule: could use the assumption of risk doctrine as a legal defence

The doctrine is an another statutory modification of the if you sue for damages. Assumption of Risk - Under this
contributory negligence doctrine and under this, the defence technique, the defendant can escape from the
plaintiff is endangered by his or her own negligence can still liability raised by the plaintiff for his negligence by
recover damages from the defendants if the defendant has establishing the fact that the plaintiff voluntarily agreed to
a last clear change to avoid the incident but fails to do so. accept the danger created by the defendant's negligence
In a comparative negligence system, the injured party may which was known to him/ her beforehand.
still recover some of his or her damages even if he or she
was partially to blame for causing the accident. Plaintiff's Assumption of risk can be of two types:
financial recovery may be reduced, or even prohibited, Y Express Assumption of Risk and
depending how plaintiff's actions caused or contributed to
Y Implied Assumption of Risk
the accident. In states using a comparative negligence
system, a jury or judge determines the proportion of fault
to be assigned to each responsible party and is a possible Express assumption of risk
defence against the contributory negligence rule. Under the It specifies that the plaintiff agrees in advance that he is
technique of defence, the plaintiff whose actions agreeing to assume the risk of the defendant's negligence
contributed to an accident may still succeed in his claim
against the defendant if he can prove that even though he Implied assumption of risk
might have been negligent by putting himself in a position
It is very similar to contributory negligence where the
of danger, the defendant was aware of the situation and defendant's conduct of negligence is very much clear and
failed to take steps to avoid the accident.
is seen in advance by the plaintiff and thereby agrees
voluntarily to accept the risk with a full understanding of
The required elements of this defence the possible harm to him
are:

1. The plaintiff negligently placed himself in danger. Imputed Negligence
2. The plaintiff is then physically unable to get himself out Under certain conditions the negligence of one person can
of the position of danger. be imputed to another (The negligent act of an employee
can be imputed to the employer)in certain situations, you
3. The defendant knows that the plaintiff is in a position may be held liable for an injury even if you are not directly
of danger. at fault. Liability for a negligent act may be imputed from
4. The defendant knows or should know that the plaintiff another person. Thus, you may be held liable not only for
cannot get himself out of the position of danger. your own act but also for the negligent acts of others.

26 The Insurance Times, May 2019