In the world of business and civil liability, the ability to manage legal risks is as important as managing financial or operational ones. In this write up, we talk about how businesses can lawfully and practically manage the legal risk of negligence as well as protect their interests.
When sued for negligence, businesses are not always left defenceless. Two key legal shields — contributory negligence and volenti non fit injuria — offer pathways to reduce or escape liability where the person suing is partly to blame for or has knowingly accepted the risk. Understanding these defences is essential not only for legal compliance but also for strategic risk management.
- Contributory Negligence: When the Plaintiff Shares the Blame
For businesses, not every injury claim means they are fully to blame. If the injured person partly caused the harm by not being careful, this is called contributory negligence. In the past, under common law, this meant the business didn’t have to pay anything—even if it was mostly at fault.
But Ghana’s Civil Liability Act, 1963 (Act 176) changed that. Now, the court shares the blame based on how much each side was at fault and reduces the amount of money to be paid, instead of canceling it completely. This matters a lot for businesses. Keeping records like safety warnings, briefings, or rules can help show that a customer or employee was partly careless if they ignored those instructions.
Case law further guides businesses in risk management. Courts look at foreseeability, that is, whether the injured person failed to avoid a visible danger. In Jones v. Livox Quarries, an employee who rode on a towbar against rules had his compensation cut by 20%. In O’Connell v. Jackson, not wearing a crash helmet led to a 15% reduction in the compensation to be paid. In Owens v. Brimmell, a passenger’s choice to ride with a drunk driver, reduced his claim.
Even though these cases come from England, they still carry a lot of weight in Ghana. That’s because Ghana’s legal system is built on the common law tradition, which we adopted during colonial times. The 1992 Constitution (Article 11(1)(c)) says that English common law and equity are part of Ghana’s laws, as long as they don’t conflict with our own laws or local conditions.
So, when there’s no clear Ghanaian case to follow, our courts often look to English cases for guidance. These examples remind business owners that courts assess each party’s role in the incident. By keeping clear records of training, signage, or risk disclosures, businesses position themselves to argue for fair sharing of legal responsibility.
- Voluntary Assumption of Risk: Volenti Non Fit Injuria
Businesses can also use the defence called voluntary assumption of risk (or volenti non fit injuria). This means if someone willingly and knowingly accepts a risk, the business might not be held responsible if something goes wrong. This is especially helpful in risky areas like construction, sports, manufacturing, or hospitality, where dangers are more obvious.
Businesses can prove this by using things like signed forms, spoken warnings, or clear signs saying “enter at your own risk.” But the law demands that consent must be real. It must be freely given, informed, and not be pressured or forced into it.
Legal decisions show where this defence applies and where it doesn’t. In Gyasi v. State Gold Mining Corp., the passenger being transported was riding with a company driver when the accident happened. The company argued that the passenger had accepted the risk by choosing to ride along. But the court disagreed, saying the passenger didn’t freely accept the risk of careless driving because they had no control over how the driver acted and didn’t clearly agree to that risk. This case reminds businesses that just being present doesn’t mean someone has accepted the risk, especially if they couldn’t do anything to avoid the danger.
In Bowater v. Rowley Regis Corp., a local council ordered a worker to take a horse and cart on his usual route, despite the worker expressing concerns that the horse was dangerous. He followed instructions and was later injured when the horse bolted. The court held that an employee cannot be said to have consented to risk simply by complying with orders, especially where economic pressure or fear of job loss influences the decision.
For businesses, this highlights that in employer-employee relationships, accepting risk must be real and voluntary. It can’t be forced or assumed just because the employee followed orders.
These cases show that the defence of voluntary assumption of risk won’t work if there’s no clear proof that the person fully understood the risk and agreed to it willingly.
For businesses, the lesson is simple: give clear warnings in risky situations, get proper consent, and make sure no one is forced or tricked into accepting danger. When used the right way, this defence isn’t just about avoiding legal trouble. It’s also a reminder to create a safe and honest environment where everyone knows the risks and agrees to them.
Both contributory negligence and voluntary assumption of risk remind us that responsibility in negligence is not always one-sided. The law recognises that injured parties or those making a claim must also act reasonably, and that no one should profit from a risk they knowingly and freely undertook.
For businesses, these defenses are not just courtroom tools, they are signals to develop clear safety protocols, educate employees and customers, and document consent and warnings properly. By doing so, businesses can create an environment where risk is fairly allocated, liability is minimised, and justice is balanced.
David Amaara Adaawin on behalf of OSD and Partners. [email protected]
