JUDGMENTBY: BUHAGIAR J, THOMSON CJ

BUHAGIAR J This is a claim for damages in respect of personal injuries sustained by the plaintiff in a car accident. The facts are as follows:--

On the 4th September, 1955, the plaintiff who was then a representative of the Manufacturers Life Assurance Company, went to see the defendant at North Mummock Estate, Klang, about insurance matters; he went there in his own car; they arrived at the Estate about 12.30. The plaintiff was accompanied by Capt. Billett. After having discussed insurance business the plaintiff and Capt. Billett proceeded to Port Swettenham to see a friend off; they went in the defendants car, a new Jaguar; the defendant was driving. All three went on board the ship which sailed about 3.30 p.m. After leaving the ship they went to the Seaview Hotel, about three quarters of a mile from the docks; by this time they were joined by a Miss Setter; there they had some refreshments. At about 4.15 p.m. the party of four left in the defendants car towards the Estate. The defendant was driving, the plaintiff was occupying the seat next to the driver and the other two passengers were at the back. Along the Port Swettenham -- Klang Road, the defendant starting picking up speed and for about two miles he was driving at from 90 to 100 m.p.h. The stretch from Port Swettenham to Klang is straight and the road is good. On either side there are houses away from the road but some have gardens abutting on the road. There was not much traffic on the road; the defendant had good control of the car; but the plaintiff told the defendant to slow down and to be careful. The defendant did in fact slow down on approaching Klang; he drove through Klang slowly, about 20 to 25 m.p.h. At about a quarter of a mile after leaving Klang, however, the defendant started picking up speed and was in fact travelling at about 50 m.p.h. on Meru Road in a 30 mile limit area. On approaching a corner the plaintiff again told the defendant to slow down and to be careful as he thought that the defendant was going too fast for the safety of the public on the road. This warning, however, came too late as a cyclist appeared on the road, the defendant lost control of the car and the accident took place as a result of which the plaintiff sustained the injuries.

It may be added that from the time the plaintiff met the defendant at his Estate until the partaking of refreshments at the Seaview Hotel the plaintiff had had three or four glasses of beer, but there is no suggestion that either he or the defendant was drunk. Up to the time of the accident the defendant had control of the car and the plaintiff knew the defendant to be a good driver.

The particulars of negligence are given in paragraph 2 of the statement of claim and it is admitted by the defendant that the plaintiff suffered injuries and damage through an accident which was caused by the careless driving of the defendant. Liability is, however, denied and the defence pleaded consists in,

(1) a denial of negligence in that in the circumstances the defendant

owed no duty to the plaintiff;

(2) the application of the maxim volenti non fit injuria; and

(3) contributory negligence on the part of the plaintiff.

These three defences are not mutually exclusive and the same evidence may establish a defence under each heading.

With regard to the first heading it is a well established principle of law that there is no liability for negligence unless there is in the particular case a legal duty to take care and this duty must be one which is owed to the plaintiff himself and not merely to others. As Bowen L.J. said in Thomas v Quartermaine (1887) 18 QBD 685 at p 694:--

The ideas of negligence and duty are strictly corelative and there is

no such thing as negligence in the abstract; negligence is simply

neglect of some care which we are bound to exercise towards somebody."

Now care is a matter of degree and it is necessary to

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