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Contributory Negligence


Authored by Smarth Arora


Keywords: Contributory Negligence, Damages Awarded, Guilty, Course of Safety, Last Opportunity, Alternative Danger, Liability of Children.


Abstract

The following article discusses the defence of contributory negligence, pre-requisites for the use of this defence and the related case laws and judgements.


Introduction

Definition:-

1. When the plaintiff by his own want of care contributes to the damage caused by the negligence or wrongful conduct of the defendant, he is considered to be guilty of contributory negligence.

2. An accident would be said to be the result of contributory negligence if “the proximate cause of the accident is the act or omission amounting to the want of ordinary care or in defiance of duty or obligation on the part of the complaining party (the plaintiff) has conjoined with the other party’s negligence.” [1]


Contributory Negligence as a defence

1. The plaintiff’s own negligence dis-entitled him to bring any action against the negligent defendant. Here the plaintiff’s negligence does not mean breach of duty towards the other party but it means absence of due care on plaintiff’s part for his own safety.”The rule of law is that if there is a blame causing the accident on both the sides, however small that blame may be on one side, the loss lies where it fails.”[2]

2. However, a lot of hardships were faced by plaintiff on the ground that a slight mistake on their part will make them lose the action against the defendant. As result, the courts modified the law relating to contributory negligence by introducing the so- called rule of ‘last opportunity’ or ‘last chance’.


The Last Opportunity Rule

1. According to this rule, when two persons are negligent, that one of them, who had the later opportunity of avoiding the accident by taking ordinary care, should be liable for the loss. It implies that if the defendant is negligent and therefore the plaintiff having the later opportunity to avoid the implications of the negligence of the defendant doesn’t observe ordinary care; he cannot make the defendant accountable for that.

2. Similarly, if the last opportunity to avoid the accident is with the defendant, he will be liable for the whole of the loss to the plaintiff.


Rules To Determine Contributory Negligence

1. Negligence of the plaintiff in relation to the defence of contributory negligence does not have the same meaning as is assigned to it as a tort of negligence. “All that is necessary to establish contributory negligence is to prove to the satisfaction of the jury that the injured party did not in his own interest take reasonable care of himself and contributed, by his own want of care, to his own injury”.[3]

2. It is not enough to show that the plaintiff did not take due course of his own safety. It is also to be proved that it is his lack of care which contributed to the resulting damage. If the defendant’s negligence would have caused the same damage even if the plaintiff had been careful and the plaintiff’s negligence is not the operative clause of the accident, the defence of contributory negligence cannot be pleaded.


Doctrine of Alternative Danger

1. Although the plaintiff is supposed to be careful in spite of the defendant’s negligence, there may be certain circumstances where the plaintiff is justified in taking some risk where some dangerous situation has been created by the defendant.

2. The plaintiff might become perplexed or nervous by a dangerous situation created by the defendant and to save the property, person, or sometimes a third party from such danger, he may take an alternative risk.

3. The law therefore permits the plaintiff to encounter an alternative danger to save him from the danger created by the defendant. If the course adopted by him ends up in some harm to him, his action against the defendant won’t fail. For example- due to the negligence on the part of the defendants, the state of Rajasthan, a truck belonging to them caught fire hardly after it had covered a distance of four miles on a particular day. One of the occupants, Navneetlal, jumped out to save himself from the fire; he struck against a stone lying by the road side and died instantaneously. The defendants were held liable for the demise on the grounds of doctrine of alternative danger. [4]

4. In cases where there is a presumption that others are careful, i.e. when the plaintiff can take for granted that the defendant will be careful. Then in such a case, he has no duty to guard against the negligence of the defendant, which is unforeseen. This is based on the fact that when the duty to take care does not exist, the defendant cannot blame the plaintiff for not having guarded against the accident.


Contributory Negligence of Children

1. What amounts to contributory negligence in the case of a mature person may not be so in the case of a child because a child cannot be expected to be as careful as a grown up person. Age of an individual, therefore needs to be taken into consideration to establish whether an individual is guilty of contributory negligence or not. “There cannot be a case of contributory negligence on the part of children because a child cannot be expected to be as careful for his own safety as an adult and in such a case, a plea of contributory negligence cannot be availed”.[5]

2. Similarly, in DTC vs. Lalita, the Delhi High Court explained the position of children for the purpose of contributory negligence as under:

3. “Infants must, it seems, be treated by a category apart .....In case of a child of tender age, conduct on the part of such child contributing to an accident may not preclude it from recovering in circumstances in which similar conduct would preclude a grown up person doing so.”

Doctrine of Identification

1. The defence of contributory negligence can be taken away not only when the plaintiff himself has been negligent but also when there is negligence on the part of the plaintiff’s servant or agent: provided that the master himself would have been liable for such negligence if some harm had ensued out of that.

2. But in the cases involving independent contractors like, a plaintiff hires a taxi and due to the negligence of the defendant and also the taxi driver, there is an accident by which the plaintiff is injured. Then in such cases the plaintiff could identify himself with such an independent contractor and negligence of the independent contractor could be pleaded as a defence to an action brought by the plaintiff. This is the doctrine of identification.

3. However, this doctrine was expressly overruled by the House of Lords in Berina Mills vs. Armstrong[6].


Conclusion

1. It can be concluded that contributory negligence is the defence available to the defendant that restricts or prevents the plaintiff to get damages or compensation. It is the omission of an act or ignorance to take due diligence for avoiding the negligence of others.

2. In the case of contributory negligence burden of proof lies over the defendant. There are certain conditions to which the defence of contributory negligence doesn’t apply as mentioned above.


References

Books

1. Law of Torts by Dr. R.K. Bangia

2. Principles of Tort Law by Rachael Mulheron

Websites

1. https://www.scconline.com/

2. https://home.heinonline.org/

3. https://www.manupatrafast.com/

Blogs

1. https://blog.ipleaders.in/contributory-negligence/

2. https://www.justia.com/injury/negligence-theory/comparative-contributory-negligence/

3. https://lawshelf.com/shortvideoscontentview/negligence-defenses-contributory-negligence-and-assumption-of-risk/

Foot Notes:- [1] Municipal corporation of greater Bombay vs. laxman iyer, AIR 2003 SC 4182 [2] Cayzer, Irvine & Co. v. Carron Co., (1884) 9 A.C. 873, 881, per Lord Blackburn. [3] Nance vs. British Columbia Electric Rail Co., (1951) A.C. 601, 611 : (1951) 2 All E.R. 448, 450, per Viscount Simon. [4] Shyam Sunder vs. State of Rajasthan, A.I.R. 1974 S.C. 890. [5] Gee vs. Metropolitan Ry. Co. (1873) 8 Q.B. 161; General Cleaning Contractors vs. Christmas, (1952) 2 All E.R. 1110; Grant vs. Sun Shipping, (1938) A.C. 549. [6](1881) 13 A.C. 1.

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