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This article is written by Chandana Pradeep, from the School of Law, University of Petroleum and Energy Studies, Dehradun. This article analyzes in detail about contributory negligence and how its applicable to a person when the individual does not wear a safety gear.

Introduction

Negligence is a tort that is caused due to a breach of care by which injury or damages are caused to another individual. This act is usually caused due to a person not taking sufficient care while doing an activity that a prudent man would have. Negligence can be done to both a person and an object. Out of the different types of negligence, this article will focus mainly on contributory negligence which is also known as a partial fault.

The concept of contributory negligence according to The Law Reform (Contributory Negligence) Act, 1945 points out that “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 shall not be defeated by reason of the fault of the person suffering 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 Claimant’s share in the responsibility for the damage”. For the tort to be in the nature of contributory negligence, there must be a proximate cause of actual injury and if the accident could have been avoided if the individual took action as that of a prudent individual, then he will not be able to claim this defence.

Essentials of contributory negligence

There are certain essentials that need to be fulfilled to be deemed as contributory nature, otherwise, any individual could claim for contributory negligence and that would create haywire in the legal system. The elements are as follows:

  1. There should have been any unforeseeable risk that had taken place to the individual, which any prudent person could have acted upon and took precautions.
  2. Evidence must be shown that the available safety device is working in nature and is not damaged, and if the individual acted reasonably could have avoided the accident using this device.
  3. Evidence must be shown that the individual could access this safety gear, however, in this case, the individual did not make use of the same.
  4. Evidence should be shown that the injury was caused due to the negligence of the individual is not using the specific safety gear.

Though India does not have an Act regarding this subject, an exhaustive discussion had been done in the case of Smt. Vidya Devi And Anr. vs Madhya Pradesh State Road Transportation (AIR 1975 MP 89) as to whether the same law as that of the Britishers could be applied in India.

Principles of contributory negligence

There are two main principles that are applicable to that of contributory negligence and they are the following:

  1. If due to the fact that the plaintiff caused the accident by not using the appropriate safety gear, then that individual is not liable to get any compensation for the accident which is caused.
  2. The defendant will not be able to sue the plaintiff in the case, where both the parties took sufficient care to avoid the accident that took place.

Examples of contributory negligence

  1. If X causes an accident to Y who is a pedestrian, due to the fact that X neglected to wear his seat belt while driving rashly.
  2. Cases where an accident is caused due to the fact that a labourer did not wear the required safety gear while working in a construction site.

Contributory negligence versus composite negligence

Though negligence in torts has different types, two types of negligence that are often considered to be confusing are contributory negligence and composite negligence. The difference between the two is the following:

  1. In the case of contributory negligence is caused when the plaintiff is ignorant and the damage is caused to the defendant whereas, composite negligence is when there is an “an omission of an act” from two or people due to which an injury was caused to another individual.
  2. In the case of contributory negligence, both the parties will be responsible for the act, however, in the case of composite negligence, the wrongdoer or the defendant will be liable jointly.
  3. Proximate relation exists between the acts of the defendant and plaintiff for contributory negligence, but in the case of composite negligence, there is no such relation that exists.
  4. In the case of contributory negligence, both the parties have to pay damages if the injury is caused due to this form of negligence, however, on the other hand, only the wrongdoers pay the damages for composite negligence.
  5. In the case of contributory negligence, the claim is reduced according to the extent of the individual’s negligence, however, this does not apply to the case of composite negligence.

Exceptions of contributory negligence

Contributory negligence will not be applicable in the cases where the plaintiff did not have to take any duty of care but was legally obligated to do so. For example, a mishap occurs in a train due to the driver not closing all the doors properly, leading to an individual falling out from that door.

Causation of damage

It is crucial that to take the defence of contributory negligence, the plaintiff must be at fault, for example in the event that an employee gets injured due to him not wearing a safety gear but even then, it is not a sure method to analyze whether the said accident was caused by contributory negligence he reason being that he did not wear a safety gear.

O’Connell v Jackson(1971)

The facts of the case are, there was a man that was traveling to work at 20 miles per hour and was not wearing a helmet which was against the highway rules. The defendant was driving through a minor road that stopped at the junction joining the road which the plaintiff was driving by, and the plaintiff negligently started driving his cycle towards the defendant which caused a collision between the two. It was held by the court that this accident was not due to contributory negligence and that wearing a helmet would have reduced the severity of the injuries that were caused to the plaintiff, his conduct was not unreasonable and hence there was a reduction in the damages.

Owens vs Brimmel(1977)

In this case, both the defendant and the plaintiff had been friends where they decided to go to a couple of places for which the defendant had given a lift to the plaintiff. Both of them had been drunk which had caused an accident and the plaintiff had to suffer gruesome injuries. The defendant had admitted that he was guilty due to negligence but also stated that the plaintiff caused the accident due to contributory negligence by not wearing his seatbelt as well as drunk driving. The court held that the plaintiff is guilty of contributory negligence as he could foresee from the beginning that the defendant was very drunk and was not in a state to drive and regardless of that offered to take upon the offer for a lift. The number of damages was reduced by 20 percent.

Through both these cases, it is evident that the foreseeability of the risk is also a factor in determining contributory negligence.

Duty of care

To establish a case, the plaintiff has to prove that the defendant had a reasonable duty of care towards ensuring that the plaintiff was safe. This includes examples where the plaintiff had a duty of care to put his safety gear.

Duty of care is usually used when it seeks to establish a relationship, but the duty of care in the concept of contributory negligence is not doing the same but establishes that the plaintiff had a duty of care towards himself or herself as the case may be. It is not correct that the plaintiff has a duty of care towards all the other individuals present so that the others will not be liable to greater amounts of damages if an injury is caused to a plaintiff.

Reasonable care

According to this, an individual should act according to what a prudent person would act like in a particular given situation and that is how negligence was present or not can be determined. An example is where an accident was caused due to a person not wearing a seatbelt, negligence can only be determined on the basis of whether the individual took any reasonable care which a prudent individual would have.

One is determined as negligent if the individual failed to act in a way which a prudent individual would have and take precaution for which the damages would have been less severe than the foreseeable accident or injury taking place. The importance of seat belt use has been highly publicized in buckle-up for safety programs. Based on this substantial risk reduction, it is difficult to argue that a reasonable person will not make use of an available seat belt.

The doctrine of apportionment and whether it is applicable in India

When the presence of contributory negligence is proved, damages are calculated to give to the injured as compensation. The judges have more discretion in determining how much the damages should be reduced for the defence of contributory negligence depending upon the facts and circumstances of the case.

The Law Reform (Contributory Negligence) Act, 1945, was introduced when it was the plaintiff who had started to be guilty of contributory negligence and this was one of the main statutory legislation that was introduced to figure out solutions in this type of scenario. Through this statute, the judges had the ability to reduce the damages that were given to a plaintiff if it was found that the injury was caused due to their negligence and or was an important factor as to why the accident or injury had taken place. The judges cannot evade apportioning the damage even if the plaintiff had no awareness of what their negligence and lack of awareness would bring them in. 

In India, there is no particular Central legislation that governs this and the Law Enforced (Contributory Negligence) Act,1945 is relied upon. The position brought about by the Law Reform Act in England is very just and equitable. Various cases have come before the High Court of India. On the lines of the Law Reform Act, the Doctrine of apportionment of damages has been followed and contributory negligence has been considered as a defence to the extent the plaintiff is at fault. 

Guidelines for compensation

Motor Vehicle Act,1988

In this Act, there were a lot of discussions going on as to how the compensation was calculated in this Act, some of the cases which caused avid discussions and controversies were National Insurance Company Ltd. v. Pushpa & Ors, Reshma Kumari & Ors. v. Madan Mohan, Rajesh and Others v. Rajbir Singh where all of these cases dealt with granting compensation for damages under section 163 A and section 166 of the Motor Vehicle Act and all of this led to the thought of how the future damages would be calculated for the injuries which are caused. This was a great concern that had to be dealt with and this matter had been sent to the Supreme Court to settle.

Guidelines by the Supreme Court

A lot of suggestions were taken into account for how the number of damages for the compensation had to be calculated in this Act. Some of the suggestions were the following made in the case of National Insurance Company Ltd. v Pushpa and Ors.

  1. While calculating the amount for damages, the future applicability and expansion should also be taken into account so that it benefits the individual, and then compensation can be as per section 168 of the Motor Vehicle Act,1988 which deals with awards of the claims tribunal.
  2. While deciding the income, an expansion of 50% of actual salary to the income of the deceased towards future possibilities, where the deceased had a changeless activity and was beneath the age of 40 years, ought to be made. The expansion ought to be 30% if the age of the expired was between 40 to 50 years. On the off chance that the expired was between the age of 50 to 60 years, the expansion ought to be 15%. Genuine compensation ought to be perused as actual income less tax.
  3. In case the deceased was independently employed or on fixed pay, an expansion of 40% of established income should be the warrant where the deceased was underneath the age of 40 years. An expansion of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years ought to be viewed as the vital strategy for calculation. The established income means the income minus the tax component.
  4. Where the deceased was married– the deduction towards individual and everyday costs of the deceased, ought to be one third where the number of dependent family members is 2 to 3, one-fourth where the number of dependent family members is 4 to 6, and one-fifth where the number of dependent family members surpasses six.
  5. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. Regarding bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. 

Case Laws

Froom v Butcher(1975)

In this case of Froom v Butcher, the plaintiff had not worn a seat belt during the time of the accident as he disliked wearing them. An accident was caused due to this and he had suffered grievous injuries to the chest and head. The defendant had stated that this accident was entirely the plaintiff’s fault as if he had worn his seat belt the nature of the injuries that he suffered would not have been so serious.

 It was held by the court that, Determining whether one is guilty of contributory negligence is a matter not of the cause of the accident, but the cause of the damage, the plaintiff’s injuries, except for the broken finger, were caused by his failure to wear a seatbelt and therefore, he was guilty of contributory negligence. For this reason, the defendant’s damages should be reduced by 20 percent.

Repic v Hamilton (City)

In this case, the plaintiff was a 14-year-old boy who had been injured when he was crossing the railway tracks when he was riding his bicycle. The injuries that he faced were gruesome, but these injuries could have been prevented if the plaintiff had worn a helmet. The court held that the boy was guilty of being contributorily negligent.

Conclusion

Contributory negligence is when the plaintiff by his own want of care contributes to the damage caused by the negligence or wrongful conduct of the defendant, he is considered to be guilty of contributory negligence. Some examples of how contributory negligence is caused are by not wearing safety gear. When it is found that the plaintiff itself is the one due to which the injury had occurred then the damages would be reduced according to the percentage of the plaintiff’s involvement that resulted in an accident taking place.

References


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