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CONTRIBUTORY NEGLIGENCE

P ROJECT W ORK ON LAW OF TORTS

CONTRIBUTORY NEGLIGENCE

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Sub mitt ed T o: M r . R a d h es h y a m COLS UP ES Submitt ed By: Yogendr a P os wa l S AP ID-500 012367 BAL LB S ec -B 20 10-1 5

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CONTRIBUTORY NEGLIGENCE

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, Mr Radheshyam Sir, 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 couldnt be completed without thanking all my friends who have encouraged me in successful accomplishment of this project.

TABLE OF CONTENTS
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CONTRIBUTORY NEGLIGENCE

INTRODUCTION .......05

1. LAW OF REFORM (CONTRIBUTORY NEGLIGENCE) ACT, 1945..06 2. HISTROY09 3. GENERAL PRINCIPLES...11

4. LAST OPPORTUNITY RULE...............12 5 . CONTRIBUTORY NEGLIGENCE OF CHILDREN...... 1 6 6. SOME RECENT CASES,..18 7. CONCLUSION......23 8. BIBLIOGRAPHY...24

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CONTRIBUTORY NEGLIGENCE

SUBJECT: Law of Torts.

TOPIC: Contributory Negligence.

OBJECTIVES: 1. To understand the provision related to Contributory Negligence. 2. To analyse 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.

RESEARCH TOOLS: The research of this project was carried with the help of the Internet and Library of University of Petroleum and Energy Studies.

FOOTNOTING STYLE: In whole of my project uniform footnoting style is adopted in Conformity University of Petroleum and Energy Studies, Dehradun footnoting style.

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CONTRIBUTORY NEGLIGENCE

Introduction Etymological MeaningThe 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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Law Reform (Contributory Negligence) Act 1945:

Section 1 (1) 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 the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimants share in the responsibility for the damage ....

This small sub-section provides for many things: (1) ... suffers damage as the result .... This provides that in order for the claimants acts or omissions to entitle the court to make a reduction, those acts or omissions must have been part of the cause of the damage. A claimant's careless or unlawful behaviour, however reckless or heinous, which does not cause the damage claimed for cannot be the basis for a reduction in his damages.

(2) ... partly of his own fault and partly of the fault of any other .... This provides that in order for the claimants conduct to result in a reduction of his damages, that conduct must be partly the cause of the damage. If it is the sole cause, then there is no causation between the defendants wrongful conduct and the damage sustained and the claim fails.

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(3) ... fault .... This is defined in Section 4 of the Act as meaning negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort or would, apart from this Act, give rise to the defence of contributory negligence. It includes carelessness, breach of statutory duty, including strict liability. It includes intentional acts (such as assault/battery (Murphy v Culhane [1977] QB 94 (CA)) and suicide (Reeves v Commissioner of the Metropolitan Police [2000] 1 AC 360). It includes strict liability under the Animals Act 1971 and under Part 1 of the Consumer Protection Act 1987. It includes vicarious liability (liability for the fault of another). It includes breach of contract if the contractual duty was coextensive with a coexistent but independent common law duty of care Firsikringsaktieselskapet Vesta v Butcher

(4) ... a claim shall not be defeated .... This abolishes the position at common law where contributory negligence was a complete (all or nothing) defence and any negligence of the plaintiff (however slight) afforded a complete defence if it was part, even a small part, of the cause of the damage.

(5) ... the claimants share in the responsibility for the damage .... This provides that the reduction is to reflect the extent to which each party is responsible for the damage. Responsibility refers to more than mere causal responsibility, it includes the amount of blame that attaches to the conduct. The more blameworthy the conduct, then the greater the share of the responsibility.

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(6) ... just and equitable .... Provided that both the claimants and defendants fault were each responsible for the damage, the deduction is to be what is just and equitable. What is just and equitable may reflect considerations other than the causative potency or blameworthiness of the fault. For instance in Russell v Smith [2003] EWHC 2060 (QB), 147 Sol Jo LB 1118, because the 10 year old cyclist was a vulnerable road user it was just and equitable to reduce his damages by only 50% instead of the 75% which reflected his share of the blame.

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History
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.

A generation ago, tort law's majority approach to treating negligence by plaintiffs changed from the contributory negligence doctrine to various comparative negligence doctrines. Almost all of the courts that made the change adopted the pure form of comparative negligence. Where legislatures made the change, the vast majority chose modified forms of the doctrine. This Article shows that legal scholars had argued strongly in favor of the pure form. It also uses a hypothetical form of modified comparative negligence (symmetrical or balanced) to show that the forms of modified comparative negligence actually adopted fail to remedy the unfairness they ostensibly were designed to address To help understand contemporary tort reform debates, the Article seeks to explain the discrepancies between scholarly recommendations and legislative actions and between the stated goals of legislation and the actual statutory systems adopted. It suggests that scholarly articles unwisely used extreme examples to illustrate the flaws of the contributory negligence doctrine. Partial remedies, such as the modified forms of comparative fault, can redress the problems shown in extreme examples. The use of extreme examples may pave the way for weak societal University of Petroleum and Energy Studies

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responses, particularly if legislatures are motivated to resist full-scale reform. Another fundamental framing issue was treatment of payments by defendants and loss-bearing by plaintiffs as different, even though they are each examples of allocation of losses related to accidental injuries. Treating plaintiffs and defendants differently (as the modified comparative negligence systems do) was facilitated by this fundamentally illogical world view.

Historically the doctrine grew out of distrust of juries, which have usually been more sympathetic to plaintiffs in personal injury lawsuits. The policy of not apportioning liability between parties to lawsuits (that is, charging each with some fraction of the blame) also encouraged the doctrine. Contributory negligence should be distinguished from several other doctrines often applied in negligence cases: assumption of risk, which relieves the defendant of an obligation of due care toward the plaintiff when the latter voluntarily exposes himself to certain dangers; last clear chance, which allows the plaintiff to recover even though contributorily negligentif the defendant had the last clear chance to avoid the mishap. Contributory negligence is criticized by some authorities because it excuses one party (defendant) even though both were negligent. One solution is loss apportionmentcharging both parties when both were at fault. This practice operates in maritime law in Canada and Australia and in most civil-law countries (e.g., France and Germany). University of Petroleum and Energy Studies

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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. II. The defendants negligence alone caused the death or injury. The deceaseds or the plaintiffs 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 defendants 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 deceaseds 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 deceaseds 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 defendants 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 University of Petroleum and Energy Studies

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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.

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. 2 This 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 volute4 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
1

Municipal Corporation of Greater Bombay v Laxman Iyer,(2003) 8 SCC 731, p. 737. 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.

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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 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 plaintiffs or the deceaseds (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
5

American Main Line Ltd. V. Afrika, AIR 1937 PC 168

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common law. 6 The 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.

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
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.
8

(2003) 8 SCC 731

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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 deceaseds negligence was held to have 25% contributed to the damage and the compensation was reduced to that extent.

The act applies when the plaintiffs 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

10

Oconell v. Jackson, (1972) 1 QB 270 : (1971) 3 A11 ER 129; (Damages were reduces by fifteen percent) Sushma Mitra v. M.P. State Road Transport Corporation, 1974 ACJ 87 (MP) pp, 92, 95

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CONTRIBUTORY CHILDREN

NEGLIGENCE

OF

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,

Lynch v. Nurdin, (1841) 1 QB 29 : 5 Jur 797 : 55 RR 191 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
12

11

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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 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 employees negligence contributed to cause injuries suffered by the boy and that they were liable.16

15 16

M.P. State Road transport corporation v. Abdul Rahman, Supra Yachuk v. Oliver Blais, (1949) AC 386 : (1949) 2 A11 ER 150 : 65 TLR 300

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SOME RECENT CASES:

Parker v PFC Flooring Supplies Ltd [2001] EWCA Civ 1533
C was second in command to his father in his familys small business and shortly due to take charge. An employee told him that some cable was hanging from the roof so C went to investigate. The employee warned C against going onto the roof but C did so, despite wearing leather soled boots and knowing it was slippery. He slipped and fell through a skylight. The judge found that D was in breach of Reg 13 of the Workplace Regs (duty to prevent falls so far as reasonably practicable) as it was foreseeable that employees would gain access to the roof and yet it was not prevented or forbidden. However, C was equally to blame. 50% reduction. Appeal dismissed.

Boyce v Wyatt Engineering (2001) Times 14.6.2001

C was up scaffolding when his boss called him by mobile phone. In order to get better reception, the claimant climbed an unsecured ladder which then fell away. He sued under the Construction Regs. At the defendants invitation, the trial judge dismissed the claim at half time (end of the claimants case) on the ground that the accident was entirely Cs own fault. The Court of Appeal allowed the claimants appeal, not only on the basis that dismissing cases at half time was wrong in principle (as the defendant had not been put to an election as to whether to call any evidence) but also on the basis that the evidence before the judge disclosed that the defendant was in breach of absolute and non-delegable statutory duties (to provide University of Petroleum and Energy Studies

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a safe place of work and to prevent falls) which, if not breached, would have prevented the accident. Therefore, the Defendant must bare a share of the responsibility. The matter was remitted for retrial by a different judge.

Nixon v Chanceoption Developments Ltd [2002] EWCA Civ 558

C fell from a scaffold in high winds. The trial judge found that he should never have gone onto the scaffold in high wind and that he was the cause of his own misfortune. Again the Court of Appeal found that as there were clear breaches of the Construction Regs in relation to the absence of guard rails, the defendant had to be held responsible for the damage. Furthermore, the Court found that a claimant could not be found be guilty of contributory negligence simply for doing his job as he was told. No contributory negligence.

Young v The Post Office [2002] EWCA Civ 661

A stress claim. New computers were introduced which C was required to master without formal training or support. After a few months of symptoms, C had a break down and went off work. 4 months later C returned to what was agreed would be light duties. However, although his hours were reduced, there was still plenty of work that needed to be done and, as a result, C worked longer than agreed. After 7 weeks he was unable to continue due to stress and gave up work. The trial judge found D liable with no reduction for contributory negligence. D appealed. The

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Court of appeal dismissed the appeal, pointing out that C could not be described as contributorily negligent in inflicting stress upon himself, as he was a hardworking and conscientious employee who was likely to carry out whatever he was asked to do, and was also psychiatrically vulnerable. It would be a very rare case where such a man would be blamed for working hard under such circumstances.

Wells v Tinder (2002) unrep CA 9.7.2002

C got out of a car in a bus layby and crossed the road but was struck by D. The trial judge found D 100% liable for driving too fast, using only sidelights instead of head lights. D appealed. The Court of Appeal upheld the finding of negligence but found C contributorily negligent just as D failed to see C who was visible, so too C failed to see D. The greater duty was on D as he was in charge of potentially very dangerous equipment (his car) and so the reduction was 25%.

Purdue v Devon Fire & Rescue Service (2002) unrep CA 9.10.2002

C stopped at red lights to turn right. From his right was coming a fire engine with flashing lights but no siren on. C did not look to his right and after the lights turned green pulled across the fire engines path resulting in collision. The trial judge found Ds driver of the fire engine liable for failing to sound the siren and for continuing across the red-light despite seeing that C had not looked to his right. The judge made no reduction for contributory negligence. D appealed. The Court of Appeal ruled that a prudent driver would have looked right and would have noticed the flashing lights and Cs failure to do so was thus negligent. The Court of appeal deducted 20%.

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Butcher v Cornwall CC [2002] EWCA Civ 1640

The retaining hook to a shed door (whereby the door could be secured open) was missing. As C was working outside the door having left it ajar, it blew against him injuring him. The trial judge found that if the hook had been present, C would have used it but that C was 10% to blame for the accident as he had failed to close the door properly. The defendant appealed, arguing that the reduction was too low. The Court of Appeal said that a reduction of 10% is so low that it calls into question whether C was in any way responsible for the accident. Such a minimal reduction means that C is hardly blameworthy at all [this is the converse of Toole, see above]. As the judge had found that C ought to but did not shut the door properly and was negligent in so doing, then the reduction must be greater than a trifling 10%. The Court of Appeal awarded 50%.

Clench v Tanner [2002] EWHC 184 (QB)

Cyclist in a designated cycle lane who collided with the rear of a breakdown recovery vehicle that turned left into a petrol station across his path was held to be 50 per cent contributorily negligent for riding with his head down. If he had paid attention, he would have seen D signalling his intentions. They were equally to blame.

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Wight v Romford Blinds & Shutters Ltd [2003] EWHC 1165 (QB)
While standing on the roof of a van to load materials on to it, C slipped and fell. The employer was negligent and in breach of statutory duty. C was simply following the method of work adopted by D. His slipping was the result of momentary inattention and should not be held against him.

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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.

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BIBLIOGRAPHY
Lal, Ratan and Jatan.The Law of Torts. Wadhwa and Company : Nagpur 2006. WWW.INDIAKANOON.COM WWW.WESTLAW.COM

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