TOPIC : Contributory Negligence

ASSIGNMENT OF LAW OF TORTS

Batch of 2018-2019

Submitted BY - Submitted TO -
Aanand Singh Dr. Ruchi Gupta

Roll number- 1020181918 Assistant Professor

BALLB(Hons)

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ACKNOWLEDGEMENT

First of all I want to thank GOD for enabling me to successfully complete

this project.

Then I would like to give my sincere thanks to our respected Law of Torts
faculty, DR. Ruchi Gupta, who has guided me all the way in completing this
project.

Then I would like to give thanks to our librarians who have helped me all
the way in searching through the source materials which help me a lot in
completing this project.

The list couldn’t be completed without thanking all my friends who have
encouraged me in successful accomplishment of this project.

Aanand Singh

ROLL NO.

1020181918

B.A,L.L.B.(Hons.)

1ST semester

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TABLE OF CONTENTS

1) INTRODUCTION …………………………….......05

2) GENERAL PRINCIPLES…………………..…….06

3) LAST OPPORTUNITY RULE...............07

4) CONTRIBUTORY NEGLIGENCE OF CHILDREN..…... 1 0

5) CONCLUSION.…………..…..………………11

6) BIBLIOGRAPHY…………………………….12

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SUBJECT: Law of Torts.

TOPIC: Contributory Negligence.

OBJECTIVES:

1. To understand the provision related to Contributory Negligence.

2. To analyze the various principles of contributory negligence.

RESEARCH METHODOLOGY: Keeping the objectives in mind, material was collected

with the help of different books and then it was compiled to make the theoretical part of the project.
Recent and important case laws are analyzed.

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Introduction

Etymological Meaning-

The negligence of a person which, while not being the primary cause of a tort, nevertheless
combined with the act or omission of the primary defendant to cause the tort, and without which
the tort would not have occurred.

Contributory negligence is a common law defense to a claim based on negligence, an

action in tort. It applies to cases where a plaintiff has, through his own negligence, contributed
to the harm he suffered. For example, a pedestrian crosses a road negligently and is hit by a driver
who was driving negligently.

Contributory negligence differs from contribution, which is a claim brought by one

tortfeasor against another to recover some or all of the money damages awarded to the plaintiff.

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GENERAL PRINCIPLES

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.

I. The defendant’s negligence alone caused the death or injury.

II. The deceased’s or the plaintiff’s negligence was solely responsible the death or injury.
III. The negligence of both the parties caused the death or injury.

It is obvious that if the finding is that the defendant’s negligence alone caused the the death or
injury, then the plaintiff would succeed even if the plaintiff or the deceased was negligent in some
respect. Similarly, if there is no difficulty in holding that the plaintiff will fail if the deceased’s or
his negligence was solely responsible for the death or injury, as the case maybe even if defendant
was in some respect was negligent. In the third case, where the negligence of both the parties
caused the death or injury, the common law rule was that the plaintiff was to fail even if the
defendant was more at fault. In other words, if the deceased’s negligence contributed in some
degree to the death or injury, the defendant succeeded by pleading contributory negligence
irrespective of the fact that death or injury was largely caused by the defendant’s negligence. The
defence of contributory negligence means that the defendant or the plaintiff failed to take the
reasonable care of his own safety which was a material contributory to his death or injury.1As the
defence enabled the defendant to escape completely even when he was more at fault, the courts
were slow to infer that the negligence of the plaintiff was a contributory factor.

1
Municipal Corporation of Greater Bombay v Laxman Iyer,(2003) 8 SCC 731, p. 737.
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THE LAST OPPORTUNITY RULE

The Courts devised the Last Opportunity Rule which meant that if the defendant had the last

opportunity to avoid the accident resulting in injury he was held solely responsible for the injury

in spite of the fact that the plaintiff was also negligent. 2This rule was further extended to cover

cases of constructive last opportunity.3 A more rational approach was made in cases involving

maritime collisions where the courts had the opportunity apportioning the damages under the

Maritime Conventions Act, 1911. In Admiralty Commissioners v. S.S volute 4 a collision had

occurred between merchant ship volute and the destroyer Radstock.

The volute was at fault in changing her course without giving any proper signal and the Radstock
was at fault in increasing speed although she had the knowledge of the danger caused by the
change of course of Volute. It was held that both the ships were responsible for the collision even
though the last opportunity for avoiding the accident was with the Radstock. The decision in the
case of Volute was followed by the HOUSE OF LORDS in a non-maritime collision case and was
regarded as one of general application. 5 In this case a crossroad collision between car and a
motorcycle was occurred. Who was negligent in this action was not clear. The HOUSE OF LORDS

2
Davies v. Mann : (1842) 10 M7W 546 : 62 RR 698 is often referred to as the originator of the rule though the
words ‘last opportunity’ do not occur there. The plaintiff in this case fettered the forefeet of his donkey and turned
it into a narrow lane. It was run over by a heavy wagon not properly looked after longing to the defendant. The
wagon was going a little too fast and was not properly looked after by the driver. In suit for damages, the plaintiff
succeeded as the defendant by using ordinary care could have avoided the accident even though the plaintiff was
also at fault in turning the donkey into the lane with its forefeet fettered.
3
British Columbia Electric Ry. V. Loach (1916) 1 AC 719
4
(1922) 1 AC 129:38 TLR 255:126 LT 425:66 SJ 156 (HL). The Maritime Conventions Act, 1911, applies to India.
Under this act where by the fault of two or more vessels, damage or loss is caused to one or more of them, to their
cargoes, or freight or to any property on board, the liability to make good the damage or loss shall be in proportion
to the degree in which each vessel was in fault, the liability shall be apportioned equally. Where loss of life or
personal injuries are suffered by any person on board of a vessel owing to the fault of that vessel and any other
vessels or vessel, the liability of the owner of the vessels shall be joint and several subject to any defence which
could have been pleaded to an action for the death or personal injury inflicted.

5
American Main Line Ltd. V. Afrika, AIR 1937 PC 168
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held that that it was a sufficient direction. The defendant in this case while driving the car at
about thirty miles an hour along a main road, approached a point in the road without keeping a
proper look out or slowing down where it was crossed by a side road, when a man driving a
motorcycle came into the road into the side road without warning and a collision occurred in
which the motor cyclist was killed. In a suit for the the damages filed by the widow of the
deceased, the defendant was not held liable under the common rule as the deceased was also
negligent. The case lays down that where the negligence of parties is contemporaneous as so
nearly contemporaneous as to make it impossible to say that either could have avoided the
consequences of others negligence, it would be said that negligence of both contributed to the
accident. Had it been a case of maritime collision the court could have apportioned the damages
as in case of Volute. But the question of contributory negligence has all cases to be decided on
same principles.

The common law rule is that if the plaintiff’s or the deceased’s (in case of death) negligence
contributed in some degree to the injury or death, the action failed, was illogical and its origin lay
possibly in procedural and pleading anomalies of the common law. 6The Madhya Pradesh case of
Vidya Devi contains an elaborate discussion why the principle of English Act should be followed
in India even though there is no corresponding act in India. 7 The Supreme Court without any
reference to the English act, has held that “it is now well settled that in case of contributory

negligence, courts have the power to apportion the loss between the parties as seems
just and equitable.

6
LORD WRIGHT, 13 Modern Law Review 5; Vidyadevi v. M.P. State Road Transport Corporation,1974 ACJ 374 (MP)
89
7 Vidyadevi v. M.P. State Road Transport Corporation, supra : In this case there was a collision between a

bus and a motorcycle at a road intersection when the bus was going on the main road and the
motorcycle came from a side road. The person riding the motor cycle was killed. In a claim for damages
by the widow and the children it was found that the bus driver was negligent in not having a proper
look out while approaching the intersection and the deceased was negligent as he was driving at
excessive speed while coming from the side road to the intersection.It was further held that negligence
of both the parties was liable for the accident but the motorcyclist was far more to blame than the bus
driver. The responsibility was apportioned in form of two-third and one-third.

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 In Municipal corporation grater Bombay v. Laxman Iyer 8, the deceased who was
riding a bicycle came from the left side and took right turn contrary to traffic regulations. At that
time he was hit by corporation bus which was running at a moderate speed and the deceased was
visible from a distance of 30 feet. It was found that the deceased was negligent in taking a wrong
turn contrary to traffic regulations and the bus driver was negligent in not stopping the bus by
quickly applying the brakes and in omitting to blow the horn. The deceased’s negligence was held
to have 25% contributed to the damage and the compensation was reduced to that extent.

The act applies when the plaintiff’s act contributes to the ‘the damage’ and not
necessarily to the accident which results in damage although in most of the cases it would be so.
Thus the damage would be reduced if a motorcyclist involved in an accident and suffering a head
injury did not wear a crash helmet.9 It may be noticed that a omission to wear a helmet is not
negligence contributing to the accident but only to the damage suffered in the accident. This
example also illustrates that for being responsible for contributory negligence the plaintiff need
not be in breach of duty to the defendant. The question simply is whether the plaintiff or the
deceased had failed to take reasonable care of his own safety which had contributed to the
damage.10 As observed by BALAKRISHNAN, J. “Negligence ordinarily means breach of a legal
duty to care, but when used in expression contributory negligence it does not mean breach of any
duty. It only means the failure by a person to use reasonable care for the safety of himself or his
property, so that he becomes the ‘author of his own wrong’”

8
(2003) 8 SCC 731
9
Oconell v. Jackson, (1972) 1 QB 270 : (1971) 3 A11 ER 129; (Damages were reduces by fifteen percent)
10
Sushma Mitra v. M.P. State Road Transport Corporation, 1974 ACJ 87 (MP) pp, 92, 95
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CONTRIBUTORY NEGLIGENCE OF CHILDREN

The rule as to contributory negligence is not inflexibly applied in cases where young children are

concerned. Allowance is made for their inexperience and infirmity of judgement.11 The correct

principle is that the children do not form a separate category either for deciding whether the

defendant any duty to the child plaintiff and was guilty of negligence being in breach of that duty,

or for deciding whether the child plaintiff was guilty of negligence, but in deciding both these

questions, the age of the child plaintiff and the experience and the intelligence of ordinary children

of that age are to be taken into account with other relevant information. The madras High Court

had held that the children capable of discrimination and perceiving danger can be guilty of

contributory negligence. In this case a girl of seven years was knocked down by an engine while

she was crossing the railway track after passing through a wicket gate. It was held that the

proximate cause of the accident was the negligence of the girl as she was old enough in

apportioning the danger.12 But a child of six, standing near a footpath when knocked down by a

lorry13 and the child of same age when knocked down by a motor vehicle while trying to cross a

road14 will not be held guilty of contributory negligence for the children of that age do not have

adequate road sense. Similarly, a child of four years was not held guilty of contributory negligence

in accepting a ride on motor cycle driven by his uncle with another person sitting on pillion.15

11
Lynch v. Nurdin, (1841) 1 QB 29 : 5 Jur 797 : 55 RR 191
12
M. & S.M. Railway company ltd. V. Jayammal,(1942) ILR 48 MAD 417
13
R. Srinivasa v. K.M Parsivamurthy, AIR 1976 Karnataka 92.
14
Motias Costa v. Roque Augustihno jacinto
15
M.P. State Road transport corporation v. Abdul Rahman, Supra
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 By an untrue statement a boy aged nine years who was accompanied by his brother aged

seven, prevailed on an employee of the defendant company to sell him a small quantity of petrol.

The children wanted the petrol for use in a game in which they enacted a Red Indian scene they

had witnessed a cinematograph theatre. In the result, the boy was seriously burned. It was held that

a Privy Council that the defendants having an explosive substance to a boy who had limited

knowledge of the likelihood of an explosion and its possible effect, and the boy having done that

which a child of his age might be expected to do, the defendants could not avail themselves of the

defence of contributory negligence, that the employee’s negligence contributed to cause injuries

suffered by the boy and that they were liable.16

CONCLUSION

Thus, contributory negligence is a good defence available with the defendant wherein, he can show

some negligence on part of the plaintiff 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 plaintiff in any way contributed to his or her own injury,

the plaintiff is barred from recovering damages. The extreme consequence of this approach has led

to its being limited or abandoned in many jurisdictions.

Since, this defense 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 plaintiff

had the last opportunity to prevent the accident from happening was held liable.

16
Yachuk v. Oliver Blais, (1949) AC 386 : (1949) 2 A11 ER 150 : 65 TLR 300
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BIBLIOGRAPHY

Ratanlal & Dhirajlal

R.K. Bangia

Lexis Nexis

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