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LABOUR LAW II

EMPLOYEES COMPENSATION ACT 1923

DOCTRINE OF CONTRIBUTORYNEGLIGENCE










Name: Sanjana.R
Class: 3
rd
yr B.A.B.L(Hons)
Date of Submission:
Facultys Signature:
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Contents
1. INTRODUCTION.3
2. OBJECT OF THE STUDY.4
3. HYPOTHESIS4
4. DOCTRINE OF CONTRIBUTORY NEGLIGENCE ..5
5. DOCTRINE OF CONTRIBUTORY NEGLIGENCE IN COMMON LAW6
6. LEADING CASE LAWS..6
7. GENERAL PRINCIPLES OF CONTRIBUTORY NEGLIGENCE IN LABOUR LAW
8. THE DOCTRINE OF CONTRIBUTORY NEGLIGENCE MAY BE SUMMARIZED IN
THE FOLLOWING PROPOSITIONS
9. LIMITATIONS OF CONTRIBUTORY NEGLIGENCE AS A DEFENCE
10. DOCTRINE OF APPORTIONMENT OF DAMAGES IN INDIA
11. DEFENCE AVAILABLE TO EMPLOYERS BEFORE PASSING OF THE
EMPLOYEES COMPENSATION ACT 1923
12. TWO WAYS OF CLAIMING COMPENSATION.
13. APPORTIONMENT OF LIABILITY IN CASES OF CONTRIBUTORY
NEGLIGENCE
14. EMPLOYEES COMPENSATION AND CONTRIBUTORY NEGLIGENCE
15. CONCLUSION and SUGGESTIONS






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INTRODUCTION:
In my assignment I have dealt with the DOCTRINE OF CONTRIBUTORY NEGLIGENCE.
Contributory negligence in common-law jurisdictions is defense to a claim based on negligence.
It applies to cases where petitioners have, through their own negligence, contributed to the harm
they suffered.
Origins of Contributory Negligence: The United States used the doctrine extensively in the
19th and 20th centuries. However, contributory negligence, like so much American law, has its
roots in England. In the first known case, Butterfield vs. Forrester, Butterfield put up a pole in
order to repair his home. Forrester, who was riding a horse, hit the pole. He sued Butterfield for
personal injury damages. Although it was dusk, a witness said the visibility was 100 yards, so the
court ruled that Forrester failed to use common caution and denied him damages.
Contributory negligence is negligent conduct by the injured party that is a contributing cause of
her injuries, and that falls below the legal standard for protecting oneself from an unreasonable
risk of harm.
At common law, the defense of contributory negligence was an absolute defense and served as a
complete bar to recovery. Most jurisdictions today have adopted the doctrine of comparative
negligence, whereby the amount of the petitioners award is reduced by the extent to which
petitioners conduct contributed to the harm.
Contributory negligence is a bar to recovery only when it is a proximate cause of the injury. If
the damage is not the necessary or ordinary or likely result of contributory negligence, but is due
to some other unlikely event which could not reasonably have been anticipated or regarded as
likely to occur, the petitioners negligence is too remote to act as a bar to recovery.




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OBJECT OF THE STUDY:
In many cases the doctrine of contributory negligence has been found to be misused by the
employer in order to reduce the compensation that is to be paid to he employee. Here we are
going to study various cases where this doctrine has been applied and the study the variations
from each case and conclude with a solution to overcome such partiality thats been eluding the
society.

HYPOTHESIS:
After the enactment of the employees compensation Act 1923, this defense is applied
only to a certain extent.
The doctrine of contributory negligence in Common Law is regarded unfair, explained
with case laws and comparisons between various countries.












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DOCTRINE OF CONTRIBUTORY NEGLIGENCE:
Contributory negligence is the oldest doctrine, and it originates from common law in England.
The doctrine first arose in the context of the employment situation in which employers tried to
defend themselves from workers' injury lawsuits. The intent behind the doctrine was to cut down
on careless conduct and fraudulent claims. The term refers to the premise that a party who
negligently harms another party is not deemed responsible if the injured party was himself
negligent in his actions to any extent. The doctrine is a total bar to recovery of any damages on
the part of petitioner in jurisdictions where contributory negligence is the rule.
Because contributory negligence is perceived as such a harsh rule, some states have moved away
from the concept and adopted a system of modified contributory negligence. However, the
majority of states have adopted an alternative concept of negligence, that of comparative
negligence. This system is used to allocate recovery for injuries. An injured party's compensation
award is founded upon a comparison of defendant's negligent conduct with that of the petitioner.
The formulas for making the allocations can be complex and challenging.
Contributory negligence is a total bar to any damage award to the petitioner. In this instance, the
petitioner's negligence must be proved by the defendant. The petitioner's ultimate recovery (if
any) is impacted by the petitioner's own negligence
Standard of Care
The standard of care in contributory negligence is the same as in ordinary negligence; i.e., that
which a reasonable person would have done under the same or similar circumstances. The act or
omission of an injured party which amounts to contributory negligence must be a negligent act or
omission, and it must serve as a proximate cause of the injury and not merely as a condition. An
act or omission that merely increases or adds to the extent of the loss or injury will generally not
preclude recovery. It may however reduce the amount of damages.
If petitioner voluntarily disregards warnings and assumes the risk of certain dangers, but is
injured through the negligence of the defendant from an entirely different source of danger, of
which she was not and could not have been aware, and of whose existence it was the duty of the
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defendant to warn, then the petitioners failure to heed the warning does not constitute
contributory negligence.
Rescue Doctrine
The majority rule is that if a person is injured while attempting to rescue another person or
property from danger, the rescuer is not contributory negligent unless the conduct is reckless.

DOCTRINE OF CONTRIBUTORY NEGLIGENCE IN COMMON LAW:
Contributory negligence in common law, for example, a pedestrian crosses a road negligently
and is hit by a driver who was driving negligently. Since the pedestrian has contributed to the
accident, they cannot sue the driver for damages because the accident would not have occurred if
it weren't for the pedestrian's own negligence. Another example of contributory negligence is
where a petitioner voluntarily disregards warnings and assumes a certain level of risk, although
accepting reasonable risk while attempting to rescue another person is not considered
contributory negligence.
Contributory negligence is sometimes regarded as unfair because under the doctrine a victim
who is at fault to any degree, including only 1% at fault, may be denied compensation entirely,
which is known as pure contributory negligence. In the United States, the pure contributory
negligence only applies in Alabama, the District of Columbia, Maryland, North Carolina, and
Virginia. Indiana applies pure contributory negligence to malpractice cases.
In England and Wales, it is not possible to defeat a claim under contributory negligence and
therefore completely deny the victim compensation. It does however allow for a reduction in
damages recoverable to the extent that the court sees fit.
LEADING CASE LAWS
a) Butterfield v. Forrester
1
Forrester laid a pole across a road. Butterfield was riding at
high speed at twilight and did not see the pole. He hit the pole and suffered personal

1
11 East 60, 103 Eng. Rep. 926 (1809)
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injuries. The court held that Butterfield was contributory negligent because if he had
been using ordinary care he would have been able to see and avoid the obstruction.


b) Alexander v. Kramer Bros. Freight Lines, Inc.
2
Alexander sued Kramer Brothers
after he suffered personal injuries in an accident with the defendants truck and Kramer
Brothers asserted contributory negligence as a defense. The court held that the petitioner
has the burden of proof to show that he or she was not contributory negligent.


c) Baltimore & Ohio R. Co. v. Goodman
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Goodman was struck and killed by a train
while driving over a railroad crossing. His view was obstructed and he did not get out
looking for an approaching train. The court ordered a directed verdict that Goodman was
contributory negligent on the grounds that no reasonable jury could have found in favor
of the petitioner under the facts of the case.

d) Brown v. Kendall
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Kendall injured Brown while trying to separate their dogs and stop
them from fighting. Brown was standing behind Kendall and he was struck in the eye
with a stick. The court held that the injured party cannot recover if both parties were not
negligent, or if both parties were negligent, or if the injured party was negligent but the
defendant was not.


e) Smithwick v. Hall & Upson Co.
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Smithwick was told not to work on a platform but
was not told that the wall was about to collapse. He worked on platform despite the
warning because he believed the risk of falling was the only danger. The court held that
the failure to heed a warning is not contributory negligence if the injury was the result of

2
273 F.2d 373 (2d Cir. 1959).
3
275 US 66 (1927).
4
(6 Cush.) 292 (1850).
5
59 Conn. 261, 21 A. 924, 12 L.R.A. 279 (1890).
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a different source of risk caused by the defendant, and the injured party was unaware of
that risk.

GENERAL PRINCIPLES OF CONTRIBUTORY NEGLIGENCE IN
LABOUR LAW
In trying claim arising out of death or injury caused by negligence, the court may be faced with a
situation where both the parties were negligent in some respect. The court is then to decide as to
whose negligence caused the death or injury .There are three possible answers to such an query
depending upon the circumstances of the case:

a) The defendants negligence alone caused the death or injury
b) The deceaseds or the petitioners negligence was solely responsible the death
c) or injury
d) The negligence of both the parties caused the death or injury
e) It is obvious that if the finding is that the defendants negligence alone caused the death
or injury, then the petitioner would succeed even if the petitioner or the deceased was
negligent in some respect.

THE DOCTRINE OF CONTRIBUTORY NEGLIGENCE MAY BE
SUMMARIZED IN THE FOLLOWING PROPOSITIONS:-
a) where the petitioner himself so far contributes to the misfortune by his own negligence
or want of ordinary and common care and caution, that, but for such negligence or want
of

b) Ordinary care and caution on his part, the misfortune would not have happened, he is not
entitled to recover.
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c) mere negligence or want of ordinary care and caution would not, however, disentitle the
petitioner to recover unless it is shown

d) that he might by the exercise of ordinary care have avoided the consequences of the
defendants negligence or

e) That the defendant could not by the exercise of care on his part have avoided the
consequences of the neglect or carelessness of the petitioner.

f) Although the petitioner is guilty of negligence, yet if the defendant could in the result, by
the use of ordinary care and diligence, have avoided the mischief which happened, the
petitioners negligence will not excuse him. Where the direct and immediate cause of
damage is clearly proved to be the fault of the defendant, contributory negligence by the
petitioner cannot be established merely by showing that if the petitioner had acted in a
certain way, a different situation would have resulted, in which the same mischief might
not have occurred.

g) If there has been as much want of reasonable care on the petitioners part as on the
defendants part, the petitioner cannot sue the defendant.

LIMITATIONS OF CONTRIBUTORY NEGLIGENCE AS A DEFENCE:
At common law, contributory negligence on the part of the petitioner was considered to be a
good defence and the petitioner lost his action. The petitioners own negligence disentitled him
to bring any action against the negligent defendant. Here petitioners negligence does not mean
breach of duty towards the other party but it means absence of due care on his part about his own
safety. Contributory negligence, to afford a defence, must be that of the petitioner himself or of
his servants, the contributory negligence of a third person not being the servant of the petitioner
will not suffice. The onus of proving affirmatively that there was contributory negligence on the
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part of the person injured rests, in the first instance, upon the defendants, and that in the absence
of evidence tending to that conclusion, the petitioner is not bound to prove its non existence.

DOCTRINE OF APPORTIONMENT OF DAMAGES IN INDIA:
In India there is no Central Legislation corresponding to the Law Reform (contributory
negligence) Act, 1945 of England. The position brought about by the law reform Act in England
is very just and equitable. The Kerala legislature has taken a lead by passing The Kerala Torts
(Miscellaneous Provisions) Act, 1976. Section 8 of the Act makes provision for apportionment
of liability in case of contributory negligence. The provision is similar to the one contained in the
English Law Reform Act of 1945. Various cases which have come before various High Courts in
India, the doctrine of apportionment of damages on the lines of the law Reform Act has been
followed and contributory negligence has been considered as a defence to the extent the
petitioner is at fault.

DEFENCE AVAILABLE TO EMPLOYERS BEFORE PASSING OF THE
EMPLOYEES COMPENSATION ACT 1923:
According to the common law rule of contributory negligence, an employee is not entitled to
compensation for injury which has been caused to him by his own negligence. The employers
used to plead that they were not responsible for the negligence on the part of the employees.
Prior to the passing of this Act, the employer was liable to pay compensation only if he was
guilty of negligence. Even in case of proved negligence, the employer could get rid of his
liability by using the defence of contributory negligence.
The aforesaid defence and the rule no negligence no liability made It almost impossible for
an employee to obtain relief in cases of accident. The Employees's Compensation Act 'of 1923
radically changed the .law. According to this Act, the employer is liable to pay compensation
irrespective of negligence. The Act looks upon compensation as relief to the workman and not as
damages payable by the employer for a wrongful act or tort. Hence contributory negligence by
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the employee does not disentitle him from relief. For the same reason, it is not possible for the
employer to plead to the defence of contributory negligence for the purpose of avoiding
liability. Thus the Act makes it possible for the workman to get compensation for injuries,
unimpeded by the legal obstacles set up by the law of Torts.

TWO WAYS OF CLAIMING COMPENSATION:
An injured workman may either file a civil suit for damages against the employer or claim
compensation under the EMPLOYEES COMPENSATION ACT 1923. He has to make a choice
between these two reliefs
Section 3(5) of the Employee's Compensation Act, provides that no claim for compensation
can be made under the act if the employees has filed a civil suit. It further provides that an
employee cannot file a suit for damages in any court of law of
a) he has filed a claim under the Employees Compensation Act 1923 or (ii)
b) There is an agreement between the employer and the employee providing for the
payment of compensation according to the provision of the Employees Compensation
Act 1923.
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Thus the workman has to choose between two reliefs
civil suit for damages and
claim for compensation under the Act

He cannot have both. In a civil suit for damages, it is open to the employer to plead the
defence of contributory negligence provided by the law of Torts. Therefore, a civil suit is a
risky and costly procedure for a workman and is rarely adopted. A claim under the Employees
Compensation Act, 1923 is safe and less costly. The legal position of workmen has, however,

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Industrial Law Book, N.D.Kapoor
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been improved by two Acts, viz., THE INDIAN FATAL ACCIDENTS ACT OF 1855 and
THE EMPLOYERS' LIABILITY ACT OF 1938.
E. Abdul Jaleel vs V. Pakkirisamy And Anr. on 7 February, 1993
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The appellant is the first respondent in W.C. No. 73 of 1988 before the Deputy
Commissioner of Labour Commissioner for Workmen's Compensation, Tiruchirapalli.
The present first respondent v. Pakkirisamy was employed in a' Saw Mill at
Mayiladuthurai. On 18.3.1988 at about 12.30 p.m. there was an accident in the mill in
which Pakkirisamy's left hand was cut and severed above the wrist by the Saw. He was
immediately taken to the Government Hospital, Mayiladuthurai and then to the Thanjavur
Medical College Hospital. Inspite of the treatment given, the wrist could not be attached.
Thereupon, he filed W.C. No. 473 of 1988 before the Deputy Commissioner of Labour
Commissioner for Workmen's Compensation claiming Rs. 22,400/- as damages. He
impleaded the appellant herein Abdul Jaleel as the first respondent and Parameshwaran
the present second respondent as second respondent in that application on the ground that
the appellant was the original owner of the Saw Mill, that he joined the mill when the
mill belonged to the appellant and that thereafter the appellant had leased out the mill to
the second respondent.
The appellant pleaded that since he had leased out the Saw Mill to the second respondent
on 20.8.1987, he had nothing to do with the day to day working of the said mill from the
day onwards. He was not the employer of the first respondent at the time of the accident.
Hence, the claim for compensation against him was not maintainable.
The second respondent contended that he was also not the employer of the worker since it
was the appellant who had appointed the first respondent in his mill. He also pleaded that
the first respondent is guilty of contributory negligence. Learned Deputy Commissioner
of Labour and Commissioner for Workmen's Compensation in his order dated 25.8.1989
found that the appellant was the employer of the first respondent and that he was liable to
pay Rs. 22,671/- by way of compensation

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II (1995) ACC 584
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APPORTIONMENT OF LIABILITY IN CASES OF CONTRIBUTORY
NEGLIGENCE
1) If a person (the claimant) suffers damage as the result partly of the claimants failure to
take reasonable care (contributory negligence) and partly of the wrong of any other
person:
a) a claim in respect of the damage is not defeated by reason of the contributory
negligence of the claimant, and
b) The damages recoverable in respect of the wrong are to be reduced to such
extent as the court thinks just and equitable having regard to the claimants
share in the responsibility for the damage.
2) Subsection (1) does not operate to defeat any defence arising under a contract.
3) If any contract or enactment providing for the limitation of liability is applicable to the
claim, the amount of damages recoverable by the claimant by virtue of subsection (1) is
not to exceed the maximum limit so applicable.
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EMPLOYEES COMPENSATION AND CONTRIBUTORY NEGLIGENCE
1) If any payments made to the claimant by way of compensation take effect under section
63 (5) of the Employees Compensation Act 1926 to any extent as a defence to the
proceedings by the claimant against his or her employer, those payments are to be reduced
to the same extent as the damages recoverable by the claimant are reduced under section 9,
and are a defence to the reduced extent only.
2) If the claimant is liable to repay compensation to his or her employer under section 64 (1)
(a) of the Employees Compensation Act 1926 or under section 151Z of the Employees
Compensation Act 1987, the amount of compensation so repayable is to be reduced to the
same extent as the damages recoverable by the claimant are reduced under section 9.
3) If the cost of any medical or hospital treatment or ambulance service for which the
claimants employer incurs liability under section 10 of the Employees Compensation

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Labour and Industrial Law, P.K.Padhi
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Act 1926 or under Division 3 of Part 3 of the Employees Compensation Act 1987
remains unpaid at the time the claimant recovers damages:
a) the claimants liability in respect of that cost is, as between the claimant and
the claimants employer, to be reduced to the same extent as the claimants
damages are reduced under section 9, and
b) the claimants employer, despite the recovery of damages and the provisions
of section 151Z of the Employees Compensation Act 1987, remains liable
to pay to the claimant the balance of that cost under section 10 of the
Employees Compensation Act 1926 or under Division 3 of Part 3 of the
Employees Compensation Act 1987 (whichever is applicable).














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CONCLUSION and SUGGESTIONS:
Thus, contributory negligence is a good defence available with the defendant wherein, he can
show some negligence on part of the petitioner and this helps a lot to the defendant as the amount
of compensation to be paid is reduced to great extent or even becomes nil .
Where contributory negligence principles are applied, if the petitioner in any way contributed
to his or her own injury, the petitioner is barred from recovering damages
.The extreme consequence of this approach has led to its being limited abandoned in many
jurisdictions. Since, this defence was utilized by the defendants in all the cases of negligence, the
last opportunity rule was brought in place wherein whoever among the defendant and the
petitioner had the last opportunity to prevent the accident from happening was held liable.













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BIBLIOGRAPHY
Industrial Law Book
Author: N.D.Kapoor

Labour and Industrial Law
Author:P.K.Padhi

Employees Compensation Bare Act

www.indiankanoon.com


http://www.lawnix.com

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