There some possible defenses in tort of negligence where someone can rise before the court in
order to exonerate him or her from liability. On the views that defendant can raise the following
defenses in order to be successfully exonerate him from liability of negligence.
Inevitable accidents, Are those accidents as evident from the name, which could not have been
prevented by the parties through the exercise of ordinary care, caution and skill, in this defense
defendant should prove that, there was no intention on the part of defendant and the collision
could not have been avoided with reasonable care. Something complained of happened without
his control over it and the greatest care and skill could not have avoidance the result. Here is
means that even though defendant tries his best to stop the thing to happen still it was out of his
power to prevent it. In the case of Msuri Muhhidin v. Nazzor Bin Seif. The plaintiff in this
sustained an injury as a result of an accident arising from a bus driven by the second respond
overturning. The plaintiff claimed damages and alleged that the accident was due to over
speeding and without keeping a proper look out. The trial judge rejected this argument and
accepted the argument of the appellant that the accident was due to tyre burst caused by rough
solid stone under the road notwithstanding the fact that tyres were good and had thread still on
them these circumstances were explained as being beyond the plaintiff’s control. Also in the case
of Hidasi v. Hidasi, the defense of an inevitable accident was accepted by the court because the
accident was occurred due to the mechanical failure which was totally out of the scope of
defendant. So in this it is noted to be that pleading inevitable accident is the same as saying that
no negligence which means that the likelihood of harm was not reasonably foreseeable or if
foreseeable it was un avoided.
A Contributory negligence defense, is quite simply an argument that the claimant, through
some action or omission of their own, contributed manifestly to their own, injuries and that this
fact should be reflected in the awarded damages. Since it affects the damages rather than the
verdict of the case itself, it is a partial defense. This is also a revolution embodied in the doctrine
of the law of negligence on the fact that when it arise that the plaintiff has suffered damage
through the negligence of the defendant but has contributed to that damage by his or her own
negligence, it follows that the plaintiff’s negligence will not have caused the damage but only
contributed to its which made the damage worse.
Voluntary assumption of risk (Volenti non fit injuria), this means that there can be no damage
suffered by a person willing to take the risk. In other words this defense states that the plaintiff
consented to the tort. If a person agrees to undergo intentional act, for instance physical battery
in the course of wrestling match he or she cannot later sue the opponent in tort. This was
evidenced in the case of Khimji v Tanga Mombasa Transport Co.Ltd, an action of negligence
failed both in the trial court and on appeal because the courts were satisfied that the deceased
consented to the risk. The material facts of the case were as follows; the deceased was a
passenger in a bus which was held up by a swollen river, which he was unwilling to do. After
some persuasion he agreed to try. The bus met some obstacles and got stuck. The driver,
conductor, some other passengers managed to cross and reached the opposite bank. The body of
the deceased was found next day some four miles downstream. It could be gleaned from the
above case that for ‘volenti’ to operate two condition must be fulfilled that (a) the plaintiff was
aware of the risk, and took it with full knowledge (e.g. by choosing to walk under falling
masonry where there is a warning notice), (b) the plaintiff must have been free to choose whether
or not to accept the risk. If she has no alternative but to run the risk e.g. when there is no other
way out, the defense will fail. Knowledge of the existence of the risk is insufficient; there must
be evidence of positive consent to run the risk. It is because of this requirement that a plea of
volenti by an employee will rarely succeed. The employee has no choice but to run the risk, if
she does not she may lose her job. Therefore, the degree of economic compulsion prevents there
being true consent.
