UNIVERSITY OF PETROLEUM & ENERGY STUDIES

SCHOOL OF LAW

BA, LL.B. (Hons.) Energy Laws 2017

SEMESTER -I

ACADEMIC YEAR: 2017-2018 SESSION: JULY-DECEMBER

PROJECT

FOR
LAW OF TORTS

TOPIC: CONTRIBUTORY NEGLIGENCE

Under the Supervision of: Prof. Pooja Gautam

NAME: __HARISH KUMAR__

SAP NO: _500060945______

ROLL NO: ___41____________

 Contributory Negligence

Introduction:

Contributory negligence” is a defense to a tort case, such as a personal injury lawsuit. In

contributory negligence, the defendant argues that because the plaintiff was partly responsible
for her own injuries, she should not win the case. To win on a contributory negligence defense,
the defendant must convince the court that the plaintiff did not act as a reasonable person would
in the same situation.

For instance, suppose that the plaintiff was trying to cross a street when the defendant hit her
with his car. The plaintiff sues the defendant, claiming that if he hadn’t been driving negligently,
he would not have hit her. The defendant may argue that contributory negligence applies because
the plaintiff was jaywalking when she was hit. Because the plaintiff did not use reasonable care
by crossing at the crosswalk, the defendant argues, she is partly responsible for her injuries and
should not win the case or receive any damages.

Contributory negligence may apply in this case even if the defendant was breaking the law at the
time. For instance, even if the defendant was speeding, contributory negligence may prevent the
plaintiff from recovering any damages if she was not using reasonable care when she crossed the
street.

Contributory negligence may also apply if the plaintiff, realizing she is in danger, responds in a
way that is intentional and unreasonable. For instance, in the case above, suppose the plaintiff
saw the defendant’s car coming but hurled herself at his windshield instead of trying to get out of
the way. Because this response is intentional and unreasonable, contributory negligence would
apply, preventing the plaintiff from recovering any money damages from the defendant.

The “intentional and unreasonable” argument often appears in cases where a plaintiff accepts a
ride from a drunk driver and then is injured in a car accident caused by that driver. In these cases,
courts that use contributory negligence usually hold that it was unreasonable for the plaintiff to
intentionally get into a car with a driver she knew was drunk.

If a defendant argues that contributory negligence prevents a plaintiff from receiving any
damages, the plaintiff can argue back that she should receive damages because the defendant had
the ability to prevent the injury, but failed to. This is known as the last clear chance doctrine. If
the defendant has the last chance to avoid the injury but does not take it, the plaintiff can recover
even if she contributed to her own injuries.
For instance, suppose that in the accident described above, the defendant saw the plaintiff
crossing the street. He could have avoided hitting her by swerving into the empty lane beside
him. Instead, he did not swerve but hit the plaintiff. In this case, the plaintiff can recover even
though she was negligently jaywalking at the time.

Today, very few U.S. states still use contributory negligence. Most have replaced it with the
defense of comparative negligence, which allows a plaintiff to recover something even if she
was partly responsible for her injuries. Most states also recognize the defense of assumption of
risk. The assumption of risk defense argues that the plaintiff knew and understood the risks
involved in behaving negligently but chose to behave that way anyway. Assumption of risk is
similar to contributory negligence in that it argues that, because the plaintiff acted negligently,
she should not win in court.

The doctrine of Contributory Negligence was dominant in U.S. jurisprudence in the 19th and
20th century. The English case Butterfield v. Forrester is generally recognized as the first
appearance, although ironically in this case the judge found the victim to be the sole proximate
cause of the injury.

Contributory negligence is generally a defense to a tort of negligence. The defense is not

available if the tortfeasor's conduct amounts to malicious or intentional wrongdoing, rather than
to ordinary negligence. In some jurisdictions, the doctrine states that a victim who is at fault to
any degree, including only 1% at fault, may be denied compensation entirely. This is known as
pure contributory negligence.

The law Reform (contributory negligence) Act 1945:

1. Apportionment of liability in case of contributory negligence: where any person
suffers damage as the result partly of his own fault and partly of the fault of any other
person or persons, a claim in respect of that damage shall not be defeated by reason of the
fault of person suffering of damage, but the damages recoverable in respect thereof shall
be reduced such extent as the court thinks just and equitable having regard to the
claimant’s share in the responsibility of the damage:

(a). this subsection shall not operate to defeat any defence arising under a contract;
(b). where 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 this
subsection shall not exceed the maximum limit so applicable.
 2. Where damages are recoverable by any person by virtue of the foregoing subsection
subject to such reduction as is therein mentioned, the court shall find and record the total
damages which would have been recoverable if the claimant had not been at fault.

3. Where in case to which subsection (1) of this section applies, one of the persons at fault
avoids liability to any other such person or his personal representative by pleading the
limitation act, 1939 or any other enactment limiting the time within which proceedings
may be taken, he shall not be entitled to recover any damages from that other person or
representative by virtue of the said subsection.

4. Where any case to which subsection (1) of this section applies is tried with a jury, the
jury shall determine the total damages which would have been recoverable if the claimant
had not been at fault and the extent to which those damages are to be reduced.

Defenses to Contributory negligence

To successfully defend against a negligence suit, the defendant will try to negate one of
the elements of the plaintiff's cause of action. In other words, the defendant introduces evidence
that he or she did not owe a duty to the plaintiff; exercised reasonable care; did not cause the
plaintiff's damages; and so forth. In addition, a defendant may rely on one of a few doctrines that
may eliminate or limit liability based on alleged negligence.in determining whether or not there
is contributory negligence on the part of a plaintiff, the curt uses the same standard of care as
other types of negligence. Any act or failure to act on the part of the plaintiff that can be seen as
proximate cause of the plaintiff’s damages.

Three of the most common doctrines are contributory negligence, comparative fault, and
assumption of risk. For instance, you may not be found entirely liable if the other party also was
negligent. This defense holds the plaintiff responsible for their injury if the plaintiff was in any
way responsible for it - even if the defendant was more responsible for the injury than the
plaintiff.

Case law: Case Summary of Butterfield V

Forrester (1809) 103 E.R. 926
Introduction
To some commentators, contributory negligence is a fundamental principle in the British legal
system that tends to be misleading when not properly understood. It was in the Butterfield case
that contributory negligence was established. As a result of Butterfield, contributory negligence
became a defence that could be relied upon in tortious claims by defendants. According to
Butterfield, contributory negligence is fulfilled when there is the existence of an act or omission
on the claimant's part which has substantially contributed to the damage suffered. When the
conduct is of such nature the claimant would be barred from a remedy. The creation of this
defence by Butterfield heightened the tension surrounding whom judgment should be given to;
as historically, judgment could only be awarded to only one of the parties.

The Facts
The Defendant, Forrester whose house was close to the road side was making repairs to his
house. In the course of the repairs he placed a pole (obstruction) on the path of this road side. At
about 8pm twilight, the plaintiff, Butterfield was riding along the road at break-neck speed. Upon
making contact with the obstructed pathway he was thrown down from his horse and injured.
Butterfield sued Forrester for damages. Evidence given at trial suggested that Butterfield was not
intoxicated during this ride. However, there was a witness to prove that had he not been riding at
break-neck speed he would have been able to see and avoid the obstruction. At trial the judge
directed the jury that if a person riding with reasonable care could have avoided the pole; and if
they were satisfied that Butterfield was riding at break-neck speed, and without ordinary care,
they should find a verdict for Forrester; the jury did accordingly and Butterfield appealed.

The Issue
The issue in Butterfield was whether a defendant, whose negligent conduct led to injury or
damage upon the plaintiff, should be held liable for the injury when the plaintiff could have
avoided the damage by riding with reasonable ordinary standard of care.

The Decision
The Kings Bench Court upon appeal found for Forrester and dismissed the case. Bayley J held
that the fault of the accident laid squarely with Butterfield because he was riding at a violent
speed; and if he had applied reasonable care he would have avoided the obstruction.
Lord Ellenborough C.J concurred with Bayley J and delivered the rule on contributory
negligence, he said: "A party is not to cast himself upon an obstruction which has been made by
the fault of another, and avail himself of it, if he does not himself use common and ordinary
caution to be in the right."
Thus, the Court held that a plaintiff whose contribution to the accident through his lack of
reasonable care could not be allowed a remedy. The Rule that "if a man lay logs of wood across
a highway; though a person may with care ride safely by, yet if by means thereof my horse
stumble and fling me, I may bring an action" was refused.
The Impact
The ramification of Butterfield was that it made the defence of contributory negligence a
complete ban to an action for damages irrespective of how little the fault the claimant was at in
the accident. Thus in a case where there was negligence on both opposing parties, if there was a
successful plea of contributory negligence the defendant would be acquitted.
In the course of time, as a result of the strictness of contributory negligence principle, the
courts developed the rule in Davies v Mann to curtail the effects of the principle. Here the Court
stated that "unless the plaintiff might, by exercise of ordinary care, have avoided the
consequences of the defendant's negligence, he is entitled to recover........were this not so, a man
might justify the driving over goods left on a public highway, or even a man lying asleep
there." This development became known as the last opportunity test.
Further, the scope of Butterfield (contributory negligence) was far-reaching as it could be relied
upon in cases of suicide and self-harm, and where children were involved. In regards to the later,
children as young as five and six years old have been found to have been contributorily
negligent.
To some the rule's position that a complete ban be provided was harsh and did not always yield a
just decision. Prima facie the courts were also aware of this issue and appeared to wriggle from
the rule. In Davies v Swan, Denning LJ said that in order to mitigate the harshness of the
doctrine of contributory negligence, the courts, in practice, sought to select, from a number of
competing causes, which was the cause."
Lord Porter in appreciation of the reform of the Butterfield rule by the Law Reform
(Contributory Negligence) Act ("the Act") stated that the Act "enables the Court.....to seek less
strenuously to find some ground for holding the plaintiff free from blame".
Following the supposed injustice of the rule, Section 1 of the Act provides that when the courts
are satisfied that both parties are at fault for the damage, they are obligated to apportion the
damages according to the degree of each side's fault. This means that the Butterfield rule - the
complete ban on remedy for the claimant, has been scrapped as it was argued that it would be
illogical and unjust for the claimant's damages to be reduced by 100 percent. However, it is
noteworthy that there have been cases where a judgment of 100 percent contributory negligence
has been reached.

Conclusion
Because of the Act, it is noted that the question of the relevance of Butterfields v Forrester in the
present legal system is academic as it has been suggested that the Act rendered the contributory
negligence and its pre 1945 development dead. However, it will be unwise to fail to pay due
respect to the decision reached in Butterfields.
Burden of proof:
In some jurisdictions, in order to successfully raise an contributory negligence defense, the
defendant must prove the negligence of a plaintiff or claimant. In others, the burden of proof is
on a plaintiff to disprove his or her own negligence.
Even if the plaintiff was negligent, the tortfeasor may still be held liable if he or she had the last
clear chance to prevent the injury, meaning that even though the plaintiff was negligent the
defendant was the last person with a clear opportunity to take action that would have prevented
the plaintiff's injury from occurring.

Availability:
Contributory negligence is generally a defense to a tort of negligence. The defense is not
available if the tortfeasor's conduct amounts to malicious or intentional wrongdoing, rather than
to ordinary negligence.

In some jurisdictions, the doctrine states that a victim who is at fault to any degree, including
only 1% at fault, may be denied compensation entirely. This is known as pure contributory
negligence.

Contributory negligence in other countries:

Australia
In Australia, particularly New South Wales, the award of damages is reduced by the same
percentage as the plaintiff's own negligence. For example, if the plaintiff was 50% negligent in
causing his or her own accident, but would otherwise be entitled to $100,000 in damages, a court
will award only $50,000. A court may also find that 100% contributory negligence is applicable
in which case the plaintiff is not entitled to any damages. Determining the extent of the
contributory negligence is subjective and heavily dependent on the evidence available. Parties
will often work to negotiate a mutually satisfactory percentage figure when engaging in
alternative dispute resolution (such as mediation). If the matter does not settle, a percentage
figure is ultimately assigned by the court at the hearing.

In Australia, contributory negligence is available when the plaintiff's own negligence contributed
to its own injuries. Also refer to Pennington v Norris for second test.

United States
In the United States, the pure contributory negligence only applies in Alabama, Maryland, North
Carolina, and Virginia. Indiana applies pure contributory negligence to medical malpractice
cases and tort claims against governmental entities. In the other 45 states in the U.S., plaintiff's
recovery is simply diminished by the extent to which he or she contributed to the harm under
principles of comparative negligence, with some states using a mixed model of comparative and
contributory negligence. A state with a mixed model may, for example, prevent a plaintiff from
recovering damages if the plaintiff is determined to bear more than 50% of the responsibility for
his or her own injury.

United Kingdom
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.

In England and Wales, it is not a defense to the tort of conversion or trespass to chattels. In the
United States, it is not a defense to any intentional tort.

India
In India compensation in favor of victim gets reduced in proportion with his negligence.

Conclusion:
This in an area of law which is ubiquitous in civil claims, and which, on the face of it, is often
reduced to a question of where the Judge feels true responsibility for the incident lies. However,
the issue of contributory negligence as a defence to breach of contract claims brings it to the
forefront of developments in the modern law of tort, in particular in relation to co-extensive
liability in tort and contract, and the developing doctrine of assumption of responsibility for
economic loss.