CONTRIBUTORY NEGLIGENCE- A DEFENCE
Authored By- Ankita Roy
Keywords: Contributory Negligence; Damages; Alternative Danger; Liability;
Negligence is a tort which is the breach of duty of care that one person has against another. It is an act of ignorance and carelessness on the part of the defendant and the plaintiff has also contributed to the damage. This article discusses the defence of contributory negligenceunder law of torts, the pre-requisites for the use of this defence, related judgements and case laws.
Definition: Contributory negligence means ignorance on the part of both the parties involved. When it is proved thatplaintiff has with his own duty of care has contributed in the damages caused to the negligence of the defendant, he is held liable for contributory negligence. Any accident is a 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 defence of duty on the part of the plaintiff has conjoined with the other party’s negligence.”
Contributory Negligence as defence:
The plaintiff gets dis-entitled from any recovery against the defendant if he is proved to have been a contributor in the damage caused by the defendant. Contributory negligence requires everyone to take reasonable care so as to avoid danger. The plaintiff’s negligence does not mean the breach of duty rather duty of due care on plaintiff’s part for own safety. The rule of law is that in the case where both the parties are to be blamed of the damage caused, however small negligence was on the part of one party, the loss lies where it fails.
Rule of Last Opportunity:
Contributory negligence has been a harsh since old times as even a slight negligence on the part of the plaintiff made them lose the action against the defendant. This led to the modification of the laws relating to contributory negligence and introduction of the rule of last opportunity.
According to this rule, when two people are negligent, the one who had the last opportunity to avoid the accident by observing ordinary care and fails to do so, should be held liable or the damage caused. This rule applies on both the parties. In case where the plaintiff had the last opportunity but he failed to take ordinary care, he cannot hold the defendant accountable for the damage. Similarly, in case where defendant had the last opportunity and failed to take ordinary care, the plaintiff will not be held liable.
Burden of Proof:
The burden to prove contributory negligence lies on the defendant. In case, the defendant does not plea this defence, plaintiff is not bound to prove contributory negligence. In case of inability of the court to decide the extent of negligence committed by the parties involved, the defendant is benefitted.
Rule of Determination of Contributory Negligence:
1.Negligence on the part of plaintiff in relation to contributory negligence does not have the same meaning as is assigned to it as a tort of negligence. For the establishment of contributory negligence it is necessary to satisfactorily prove the jury that the plaintiff did not in his own interest take reasonable care and by his own want contributed to the damage caused.
2.If the defendant’s negligence would have caused the damage, where the plaintiff had been careful and plaintiff’s negligence is not the operative clause of the damage, there is no defence of contributory negligence. Thus, it is important to prove that the lack of care on the part of plaintiff contributed to the resulting damage.
The Doctrine of Alternative Danger:
Although the plaintiff is supposed to be careful in spite of the defendant’s negligence, yet under certain circumstances the plaintiff is justified in taking certain risks where a dangerous situation has been created by the defendant. In such situations, due to perplexity and to save any person or property the plaintiff can take an alternative risk.
The doctrine of alternative danger is justifiable under law, which means that law permits the plaintiff to take such risks so as to prevent severe damages. If in such risk the plaintiff harms himself, the action against the defendant will not fail. In Shyam Sundar v. State of Rajasthan, a similar situation arose where the plaintiff jumped off a truck which was on fire, his head hit a stone and he died instantaneously. The judgement was based on the doctrine of alternative danger and defendants were held liable.
In a case where there is a presumption by the plaintiff that the defendant will be careful, the plaintiff has no duty to guard the unforeseen negligence of the defendant. Thus, when there is a lack of duty, the defendant cannot blame the plaintiff.
The Doctrine of Apportionment of Damages:
Sec.1(1) of the Law Reform (Contributory Negligence) Act, 1945 states that, when a person suffers damage as the result of partly hi own fault and partly defendant’s fault, a claim on the basis of the person’s fault shall not be defeated rather the damage recoverable shall be made just and equitable as the court deems fit. Thus, in case where plaintiff and defendant are equally at fault, the compensation to which he is entitled to reduces by 50%.
Doctrine of Identification:
The defence of contributory negligence is applicable not only when the negligence of the plaintiff is proved but also when the servant or agent of the plaintiff has been negligence. Thus, vicarious liability is covered under the doctrine of contributory negligence.
In cases involving independent contractor, the plaintiffcould identify himself with the independent contractor and the defence can be pleaded by the defendant on the negligence on the part of the independent contractor, to the action brought by the plaintiff. This is the doctrine of identification. It was overruled in the case of Berina Milla v. Armstrong.
It can be concluded that contributory negligence is the defence available to the defendant which restricts the compensation for the damage occurred. In the case of contributory negligence the burden of proof lies on the defendant. There are certain conditions where the doctrine of contributory negligence cannot be pleaded. Thus, contributory negligence is one of the defences under torts.
 Municipal Corporation of Greater Bombay v. Laxman Iyer, AIR 2003 SC 4182;
 Cayzer, Irvine & Co. v. Carron Co., (1884) 9 A.C. 873;
 Hansraj v. Tram Co., 35 Bom. 478;
 Shyam Sunder v. State of Rajasthan, AIR 1974 SC 890;
 (1881) 13 AC 1;