1. INEXISTENCE OF DUTY OF CARE
There is a Latin maxim that says ‘nemo dat quod non habeat’ which means, you cannot give what you do not have. Now tell me, can a Medical Doctor owe a duty to passengers on an aircraft to get them to their destination? The answer is NO, owing to the fact that he has no business flying an aircraft.
Now, who owes those passengers on that aircraft a duty of care? the answer is; The Pilot of that aircraft the passengers boarded.
If one can prove that he owes no duty of care to a Defendant in a claim for negligence using the above scenario of a Medical Doctor and a pilot, it can completely exonerate him.
2. VOLENTI NON FIT INJURIA (CONSENT)
The implication of this defence is that the Plaintiff consented to the action or inaction that amounted to the damage suffered by him, this defence goes to completely exonerate the Defendant from liability of the injury caused. Due to pressure from the economy, some people take on risky employment. Such a person will not succeed in an action when the Defendant raises the defence of volenti non fit injuria as a consequence of their employment.
In Morris v. Murray, the Plaintiff went for a ride in a private plane piloted by the Defendant, despite the fact that he knew that the Defendant was drunk. The plane crashed and the Plaintiff was injured. It was held that the pilot’s drunkenness was so extreme and obvious that participating in the flight was like engaging in a dangerous occupation. Defence of volenti non fit injuria succeeded.
Nevertheless, this does not completely alienate the duty an employer owes to an employee notwithstanding the risks attached to the job.
In the words of Lord Wrights in the case of North-western Utilities Ltd v London Guarantee and Accident Co. Ltd:
The degree of care which the duty involves must be proportioned to the degree of risk involved if the duty of care should not be fulfilled.
In the classic case of Paris V. Stepney Borough Council the Court simplified the extent to which an employer owes a duty of care to his employee:
In this case, a Company employed a man as a Mechanic in their maintenance department. Although they knew that he had only one good eye, they did not provide him with goggles for his work. While he was attempting to remove a part from underneath a vehicle, a piece of metal flew into his good eye and he was blinded. The Court agreed with the Mechanic that the company had been negligent in not providing this particular workman with goggles, since they must have been aware of the gravity of the consequences if he were to suffer an injury to his one good eye.
Though the defence of Volenti non fit injuria (Consent) ordinarily can go all the way to exonerate the Company from liability of negligence, the Company must also have been able to prove that they provided all the necessary work accessories to protect the mechanic from impending harm.
On the other hand, Contributory negligence can go to exonerate a Defendant partly but not wholly from a claim of negligence on his part.
3. CONTRIBUTORY NEGLIGENCE
This can occasion in a circumstance where the Defendant falls below the expected duty of care to his neighbor, but the neighbor as well has failed to take measures to protect himself from accidents that may occur. In the case of Evans v. S.B. Bakare, According to the trial judge’s findings and acceptance of the evidence, the victim was riding his motorbike carelessly when it veered into the road and struck the other party’s car. The trial judge incorrectly applied the contributory negligence rule despite the fact that the victim was solely to blame for the mishap. Nevertheless, the Court of appeal overturned this.