This article is written by Suryansh Singh, a 3rd-year law student from Indore Institute of law. This article mainly discusses the concept of contributory negligence and its constituents.

Introduction

Negligence is a type of tort which means a breach of duty (duty to take care) by one person which causes damages to another person. It is an act of carelessness and ignorance on the part of the defendant which he is obligated to perform which a rational and prudent man would not do.

In general, negligence is the omission to perform a duty which results in the plaintiff’s injury. Negligence is committed in respect of both person and property.

Breach of duty to take care and measures in order to avoid any kind of performing an act is the basic requirement in order to raise liability of negligence. Suit for negligence arises when there is a breach of duty which is recognised by law.

Illustration

A)- If a doctor while performing a surgery accidentally leaves one of his tools inside the body of the plaintiff, this will give rise to actionable negligence as the doctor was negligent on his part and completely ignored his duty to take care.

B)- If A, who was driving at the wrong side met with a collision from another car will be held negligent on his part and is liable to pay compensation.

According to Austin– In case of negligence a party performs not an act to which he is obliged; he breaks a positive duty.

The concept of duty of care

The term duty of care in itself says duty or obligation to be more careful, reasonable and rational so that it may not give rise to any kind of injury or damage. Generally, if there is any kind of breach in the performance of such duty it gives rise to the liability of negligence for which compensation is to be paid.

This concept emerged from the landmark case of Donoghue V. Stevenson 1932 A.C. 562.

In the instant case, the plaintiff suffered from gastroenteritis(intestinal infection) as she consumed the ginger beer in which she discovered the remains of a decomposed snail. The ginger beer had been manufactured by the defendant. It was held that the defendant neglected his duty to take care which caused injuries to the plaintiff.

In the instant case, the lord Atkin restructured the concept of duty of care. According to him, one should always take appropriate measure to avoid omission of an act the consequences of which is likely to inflict injury to your neighbour.

The degree of care

The degree of care depends upon the gravity of injury an act possess. If an act in which any kind of omission or ignorance is likely to cause injury to a greater extent more care is required and if the danger is slight less care is required.

In order to determine whether a person is liable for negligence is loosely based on his rationality to act on that particular situation.

Illustration

A who was a railway gatekeeper invited y and z (husband and wife) by opening the gate even though the train was approaching towards them. Train hits the car of husband and wife killing them on spot. Here it was the duty of A to take all possible measure and care in order to avoid such a great accident.

What are the essentials of negligence?

• The defendant shall be legally obligated to perform such duty.
• Ignorance of the defendant in order to take reasonable care while performing his act.
• Injuries must be sustained by the plaintiff due to the carelessness of the defendant.

In the instant case of Philips India ltd.v. Kunju Punnu (1974 B.L.R.337) following condition were laid down by the court to be fulfilled in order to raise liability of negligence against a doctor.

• Legal obligation to take ordinary care towards the plaintiff
• Ignorance of such duty
• A direct connection between the act and the damages  sustained

Burden of proof

• Plaintiff has the burden of proof. He must prove that he has sustained injury from the negligence of the defendant and their stands a proximate relation between them.
• Res ipsa loquitur(the thing speaks for itself) is another condition in which the plaintiff is not required to prove anything as the accident itself afford the prima facie evidence.

Requirements of Res Ipsa Loquitur

• There must be no evidence for an act causing damage or injury to the plaintiff.
• There must be a connection between the defendant and the subject causing damage to the plaintiff. Negligence must be the base of the accident.

Contributory negligence

Contributory negligence basically means ignorance from both the parties involved. If a person is driving a car without any breaks met with an accident with another person who was driving on the wrong side of the road. This results in contributory negligence. It’s a defence available to the defendant in case of contributory negligence which prevents the plaintiff to get compensation.

Contributory negligence is the ignorance of due care on the part of the plaintiff to avoid the consequences of the defendant’s negligence. This concept is loosely based on the maxim- “Volenti non fit injuria” (injury sustained voluntarily). It means If a person is not taking due diligence in order to avoid consequences resulting out from the negligence of the defendant the liability of negligence will be on both of them.

Principles  of contributory negligence

• If the plaintiff is himself negligent for taking due care in order to avoid consequences and becomes the direct cause of the damages, he is not entitled to receive any compensation.
  
• If both the plaintiff and the defendant have taken reasonable measure and ordinary care to such extent where they both wanted to avoid such consequences then the plaintiff can’t sue the defendant.

Difference between contributory negligence and composite negligence

The burden of proving contributory negligence

The burden of proof lies over the defendant. In order to get the defence of contributory negligence, the defendant must prove that the plaintiff is responsible as him, and ignored due diligence which could have avoided such consequences arising from the negligence of the defendant.

Great central rly. V. Bates(1940) 3 All.E.R.399

The plaintiff sustained injuries as he fell down from the shaft of the lift because he went backwards opened the doors and stepped through it assuming that the lift would still be in place.

He was guilty of contributory negligence and therefore was not entitled to recover compensation for the damages sustained.

Hansraj v. Tram CO., 35 Bom.478

A attempted to board a moving tramcar and end up getting injured. He sued the company. It was held that if he would have boarded in a tramcar, not in motion, it would have been easier for him to get a firm grip in the handlebar and settle down easily. The company was not held liable.

When the defence of contributory negligence is not available?

• When it is not necessary for the plaintiff to take due care but the defendant was legally obligated to perform such duty of care failure of which will result in the liability of negligence for the defendant.

For eg.- A was travelling on a train with his brother. In order to show him something outside the window got up and placed his hand on the window which suddenly flew open. Though he could have avoided the accident, it was the duty of the staff to properly screw the window which would have not resulted in such an accident.

Butterfield v. Forrester, (1809) 11 east 60

In the instant case due to the ignorance of the plaintiff in order to take due care while driving, he met with a collision with the pole which was wrongfully obstructed by the defendant. So without considering the negligence of the defendant, the plaintiff could have avoided the accident.

The second situation is when the defendant has time to recourse and take reasonable measures in order to avoid an accident.

For eg.- If A is driving a car without headlights at a galloping speed sees B driving in the wrong side from a long distance. He has the time to recourse and take due diligence to avoid an accident.

Davis v. Mann

In the instant case, the defendant ran over the donkey of the plaintiff while driving at a fast pace. He was negligible and was entitled to pay compensation to the plaintiff.

The third situation is when a defendant will not get the defence of contributory negligence when he creates a situation under which the plaintiff gets reasonable apprehension of imminent threat or menace to his life and in order to escape such danger he acted rationally and avoided due care of diligence.

For eg. A, a bus driver was driving negligently and rashly due to which an accident was about to take place. But B acting prudently jumped out of the bus and sustained injuries. A is liable to pay for the damages sustained by B.

Brandone v. Osborne

In the instant case, the defendant was held liable for the injuries sustained to the plaintiff who in order to save her husband from the negligence of defendant’s workmen injured her leg.

The fourth situation is that contributory negligence is not applicable to maritime law.

The fifth situation is that contributory negligence is not applicable is not over children. The ability to think rationally and prudently like an adult is absent in a child. Proper allowances are to be made for the lack of experience and their minute sense of making any judgment. Though if they sustain any damage by their own actions they will be liable for the negligence.

S.M. Railway Co. Ltd. v. Jayammal, (1924)

In the instant case, a 7-year-old girl was knocked down by an engine while crossing the railway line. She was held responsible for the damages as she was capable of understanding the danger and discrimination while crossing the railway line.  

Rule of last opportunity

The term rule of the last opportunity means the last opportunity to avoid an accident. If in a situation both the plaintiff and the defendant are negligent on their part and whosoever has the last opportunity of avoiding such consequences fails to do so will be held responsible for such accident solely.

Illustration

A is out for a walk with his dog but without a leash on him. The dog suddenly ran towards the road and got hit by B who was driving rashly. Here B had the last opportunity to avoid that accident by pushing the brake pedal.

Limitations

Where the defendant is aware of the gravity of the consequences and fails to take proper measure, he will be held liable.

For instance in the given example above if, B sees the dog from a long distance and still avoids to take reasonable care which resulted in the death of the plaintiff, he will be held liable.

The defendant would have the last opportunity but according to law, it is equal to one he did for his own negligence.

Davies vs Mann 152 Eng. Rep. 588 (1842)

In the instant case, the defendant while driving a wagon killed the donkey of the plaintiff which was fettered at the side of the road. It was held that the defendant had the last opportunity to avoid the accident by taking appropriate measures.

Rule of Avoidable losses

Rule of avoidable losses means the duty of an injured person to mitigate the losses or damages. The plaintiff after sustaining injury could make appropriate efforts in order to reduce the effect of such injury. This rule acts to disqualify the plaintiff to take any award for the injury if the defendant can prove that the plaintiff ignored to make such efforts in order to reduce the losses.

Strict liability

Strict liability means the liability of a person for causing damages even if it is not his fault. This liability arises if a person keeps such dangerous substances in his premise that is likely to cause mischief to the public if it escapes the premise.

In Rylands vs Fletcher the defendant employed some independent contractor in order to build a reservoir in which he had no active participation. While the independent contractors were in the middle of the construction, the discovered old coal shafts which were not covered properly. Instead of taking reasonable measure and covering the shafts they chose to work. This resulted in the immediate burst of the reservoir which flooded the mine of the plaintiff. Plaintiff brought a suit against the defendant in which it was held that the defendant was responsible for the damages.

Contributory negligence is not a defence in case of strict liability though the negligence or the ignorance from the side of the plaintiff is used to reduce the compensation awarded for the damages.

Conclusion

It can be concluded that contributory negligence is the defence available to the defendant which restricts or prevents the plaintiff to get rewards or compensation. It is the omission of an act or ignorance to take due diligence for avoiding the negligence of others. In the case of contributory negligence burden of proof lies over the defendant. There are certain conditions to which the defence of contributory negligence doesn’t apply as mentioned above.