CONUNDRUM: The Doctrine of Last Clear Chance

CONUNDRUM: The Doctrine of Last Clear Chance
Contents
PRELUDE..........................................................................................................................2
TRACING THE ROOTS OF A LONG-STANDING DOCTRINE........................................5
FOREIGN JURISDICTIONS PERSPECTIVE ON THE DOCTRINE OF LAST CLEAR

CHANCE: Compatible or Inconsistent?.............................................................................8
Medieval Principle..................................................................................................................10
Humanitarian Doctrine........................................................................................................... 11
Plaintiffs and Defendants.......................................................................................................12
Limitations.............................................................................................................................. 13
The shift to Comparative Negligence and Apportionment Laws.............................................15
Should the Last Clear Chance Doctrine be Abolished?..........................................................17
CHRONICLE OF THE DOCTRINE IN PHILIPPINE JURISPRUDENCE........................20
Mitigation, Not an Absolute Bar to Recovery..........................................................................20
Application of the Doctrine of Last Clear Chance...................................................................23
Limited Application in Collisions at Sea..................................................................................24
Full Liability against the Party at Fault....................................................................................25
Mitigation of Damages...........................................................................................................25
Early Application of the Doctrine of Contributory Negligence in Relation to Master and

Servant/Principal and Agent Relationship..............................................................................28
Early Application of the Doctrine of Contributory Negligence in the Area of Banking.............29
Recognizance of the Doctrine of Last Clear Chance..............................................................30
Subsequent Rejection of the Application of the Doctrine of Last Clear Chance.....................33
Recent Jurisprudence to Shed Light on the Doctrine.............................................................34
CORRESPONDENCE: Practitioners own take on the continued applicability of the

Doctrine of Last Clear Chance........................................................................................46
THE STAND.....................................................................................................................48
Page 1 of 48
PRELUDE
The Hobbit is a fictional novel written by English author J.R.R. Tolkien. It was first
published in way back in 1937 and was recently re-popularized by Peter Jacksons
three-part movie adaptation. Setting aside all the deviations made by Mr. Jackson in his
franchise from the original novel (which are a lot), the story basically revolves around
Bilbo Baggins whose services were engaged by a band of dwarves and a wizard,
hoping that hed become an asset in reclaiming their mountain-homeland Erebor and
the vast treasure therein from a dragon named Smaug. At the end of the book, the
beast was slain, the dwarves were able to get their mountain back, Bilbo learned that,
despite his short and humble stature, he had greatness within him, and good was able
to triumph against evil. Simple enough.
Needless to say, the book is fantastic with its rich backstory and moral
underpinnings. However, as students of law we cannot help but perceive the underlying
legal implications in the plot. Definitely the interplay between the characters would have
legal consequences in real life.
In an imaginary scenario where Smaug doesnt get shot in the chest with a black
arrow and instead taken by the dwarves to a Philippine court, are the latter entitled to
the full amount of moral damages for the death of their kin, the suffering they had
endured during their exile from their home, or to compensation for rent of the mountain?
And if so, to what extent is their entitlement?
According to middle earth lore, dragons have been around for centuries prior to
the events in The Hobbit. A commonality among the dragons/wyrms in Tolkiens books is
that they are beings of cunning, intelligence, arrogance, strength and size. Their more
notable characteristic is that they are instinctively attracted to treasure, gold, gems and
Page 2 of 48
the like. Apart from arrogance and a high regard for ones self, there is no compelling
reason to brand dragons as wicked.
On the other hand, dwarves who have also been around for a considerable
amount of time, are described as bearded folk of short physical stature. They are, for
lack of a better term, obsessed in mining and in increasing their wealth. Thror, King
under the mountain, incumbent ruler of the dwarves at the time Erebor was pillaged by
Smaug, is portrayed to have been engulfed by greed. During his reign as king, the
dwarves were able to amass mountains of gold kept under lock and key within their
Kingdom.
Provided the foregoing literary facts, it is safe to assume that dwarves were
aware of the existence of dragons and their insatiable fetish for gold. If so, they were
duly acquainted of the risk that upon accumulation of so much wealth runs the
possibility of crossing paths with one. In conclusion, the dwarves conduct of
unnecessarily stockpiling extravagant amounts of gold, which eventually lead to their
demise by way of dragon, was negligent and could have been averted had they
exercised ordinary diligence by keeping the volume of the gold in check.
On the flipside, Smaug cannot be entirely faulted for acting the way a dragon
would. There was no murderous intent on his part. It was merely instinctive for him to be
attracted to gold. To bolster this fact, it is noteworthy that after he had taken residence in
the mountain and having secured his spoils, he became dormant with no interaction
whatsoever with the outside world. However, it cannot be denied that the proximate
cause of the countless deaths was dragon fire.
Working within the premises that Smaugs actions were of tortuous character
which, however, was partly caused by the contributory negligence of the dwarves, will
an action for damages initiated by the latter prosper?
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To come up with a sound answer that is supported by prevailing law and
jurisprudence to this otherwise illusory legal predicament, it is important to understand
the history behind the evolution and development of the law on torts particularly the
Doctrine of Contributory Negligence in relation to the Doctrine of Last Clear Chance.
Because as imaginary as this scenario may be, the issue is contrastingly very real. The
same or a similar question has been raised in numerous occasions in courts across
different jurisdictions without a resulting standardized solution.
It would also seem from the rulings of our very own Supreme Court over the
years that the issue had not been put into rest. Hence, a closer examination of Supreme
Court decisions and the rationale behind them is at hand in order to determine whether
they are capable of reconciliation.
This paper is aimed in presenting a short statutory and jurisprudential history of
the origin and evolution of the theories above-mentioned and in so doing determine the
prevailing law applicable on the matter within the Philippine jurisdiction. Also, opinions
and materials from different authorities are included as guidance and reference in
coming up with our conclusion.
Page 4 of 48
TRACING THE ROOTS OF A

LONG-STANDING DOCTRINE
Macaulay, Machiavelli once said, "He alone reads history aright, who, observing
how powerfully circumstances influence the feelings and opinions of men, how often
vices pass into virtues, and paradoxes into axioms, learns to distinguish what is
accidental and transitory in human nature, from what is essential and immutable."
We are legal. We are a bunch of hopeful law students who were tasked by our
Professor to resolve this conundrum on the Doctrine of Last Clear Chance, does it stand
or does it not. Jurisprudence obliged us to listen to their arguments and we argued on
the wavering rulings.
The doctrine of last clear chance first became famous in our jurisdiction in the
case of Picart vs. Smith (37 Phil 809.)
The rule before in Anglo-American law regarding contributory negligence is an
absolute bar to recovery in that, clearly, where the defendants act is negligent, he
cannot recover because he was himself to a certain extent, negligent. So, in order to
remedy that austerity, the English had to come up with something that will mitigate its
severity.
They came up with the doctrine of comparative negligence where you have to
compare the time when the negligence of both parties. This happened to be the case
because otherwise, in case of a finding of negligence on both, theres a chance that
there will be no recovery due to the rule on contributory negligence in England hence
they came up with a different principle, a different doctrine as a measure to counteract
its starkness.
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Thus, looking at the comparative negligence of the parties now, they arrived at
this doctrine of last clear chance.
The doctrine of last clear chance, otherwise known as the doctrine of
discovered peril, or as the doctrine of supervening negligence, or, less frequently, as the
humanitarian doctrine, and in one jurisdiction as the doctrine of gross negligence, may,
where the facts warrant its application, ordinarily be availed of, by an injured party to
avoid the preclusive effect of his own contributory negligence. The doctrine as originally
conceived was, and in many jurisdictions still is, considered to be but a phase of the
doctrine of proximate cause with particular reference to the question of a plaintiffs
contributory negligence.
In the case of Picart vs. Smith, Picart sought to render Smith liable for the sum of
Php 31,000 as damages involving an accident caused by Smith while driving his
automobile. The incident happened in Carlatan Bridge, in San Fernando La Union.
Picart was on his pony and when he was halfway across, Smith approached in his
automobile. The issue revolved around who should bear the liability.
The Supreme Court in this case said that, the control of the situation had then
passed entirely to Smith; and it was his duty either to bring his car to an immediate stop
or, seeing that there were no other persons on the bridge, to take the other side and
pass sufficiently far away from the horse to avoid the danger of collision.
Under these circumstances the law imposed on the defendant the duty to guard
against the threatened harm.1
However, by the time the High Court decided the case of Rykes vs. Atlantic, Gulf
and Pacific Co. (7 Phil. Rep., 359) we had our own rule on contributory negligence and
it found its way to Article 2179 of the New Civil Code and it cannot be considered an
absolute bar of recovery for as long as the negligent act can still be attributed to the
1 Picart vs. Smith (37 Phil 809)
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negligent acts of the defendant. That was the rule before we imported the rule on last
clear chance in this jurisdiction in Picart vs. Smith.
It came in handy then in our jurisidiction when there was still no provision on the
rule on contributory negligence because before, there was only jurisprudence. But come
the Civil Code in 1950, we already had the statutory codal rule that contributory
negligence is not an absolute bar to recovery but only mitigates damages.
Therefore, the doctrine last clear chance was carried on because of the common
law callous principle on the law of recovery when youre talking about contributory
negligence. For this reason, the mitigator is the doctrine of last clear chance.
Henceforth, we now ask the question, is our law now, based on Article 2179 of
the new Civil Code an absolute bar to recovery or must the Doctrine of last clear chance
stand?
Page 7 of 48
FOREIGN JURISDICTIONS
PERSPECTIVE ON THE
DOCTRINE OF LAST CLEAR
CHANCE: Compatible or
Inconsistent?
Malcolm M. McIntyre, wrote in his article entitled The Rationale of the Doctrine of
Last Clear Chance, published in the Harvard Law Review in June 1940 2, that it was
settled before the turn of the 19th century that a defendant was liable for harm caused to
the plaintiff because of the defendants negligent conduct.
However, a plaintiffs negligence, if contributing to harm resulting from the
defendants negligent conduct is a complete bar to recovery. This concept in law is
otherwise known in English jurisprudence as the principle of Butterfield v. Forrester.
Ruled in the year 1809, the Butterfield case is an English case before the Kings Bench
that was said to be the first appearance of Contributory Negligence as a common law
defense against negligence.3
Other references would point to Cruden v. Fentham4, cited in the case of
Hoffman v. Jones, as the earliest reported case barring recovery on the part of the
plaintiff if he has put himself in the position of peril and thus assumed danger voluntarily.
In this 1799 case, Cruden, a stateman, was traveling on the road in a chaise with his
children. Captain Fentham was traveling on horseback on the wrong side of the road.
Crudens servant insisted on riding at the ride side very close to Fentham despite
abundance of space that allowed five to six carriages to pass through. Fentham pointed
his whip at the servant, telling him to ride at the opposite side and pulled his reins for
that reason but pulled at the wrong rein and caused his horse to start and approach the
2http://www.jstor.org/discover/10.2307/1333802?uid=3738824&uid=2&uid=4&sid=21103326861813
Retrieved on Jan. 12, 2014
3 e-Study Guide for: Tort Law by Linda L. Edwards, ISBN 9781428318496
4 http://www.law.fsu.edu/library/flsupct/43443/43443rep.pdf Retirieved on Jan. 13, 2014
Page 8 of 48
chaise which caused its death. While Crudens company was traveling on the right side
of the road, there was a vast space to move into for convenience and to avoid the
accident, while Fentham was apparently negligent for insisting to violate the Law of the
Road in Traveling. The court awarded Fentham the cost of the horse.
In Butterfield, Justice Bayley ruled that if the plaintiff Butterfield used ordinary
care, he would have seen the obstruction, so the accident happened entirely at his own
fault. Further, Chief Justice Lord Ellenborough stated that One person being in fault will
not dispense with the requirement that the other must use ordinary care for himself. 5
According to the facts of the case, Forrester placed a pole across the road next
to his house while he was making repairs therein. Plaintiff Butterfield was riding at high
speed on his horse at approximately 8:00 in the evening at twilight and did not see the
pole. He struck the pole, fell off his horse and suffered physical injuries.
The judge, during the trial, instructed the jury about contributory negligence and
that if an individual riding with reasonable care could have avoided the pole, and if he is
found to neglect using ordinary care while riding at high speed, then the decision should
be in favor of Forrester. The jury rendered a verdict in favor of Forrester, a decision
which was maintained despite Butterfields appeal.
The Court held that If a plaintiffs conduct falls below the standard established by
law for the protection of self against an unreasonable risk of harm, that plaintiff is
contributorily negligent and cannot recover for personal injuries caused by a resulting
accident. No injured plaintiff may recover damages against a negligent defendant if that
6
plaintiff did not exercise reasonable and ordinary care to avoid the injury.
5 http://www.casebriefs.com/blog/law/torts/torts-keyed-to-dobbs/defenses/butterfield-v-forrester-3/
6 Butterfield v. Forrester, 11 East 60, 103 Eng. Rep. 926 (1809).
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Medieval Principle
Fleming James, Jr., Professor at the Yale University Law School, regarded this
idea as the Medieval Principle. In his in his article entitled LAST CLEAR CHANCE: A
TRANSITIONAL DOCTRINE7, he said: They could be accounted for quite readily in
terms of what Holsdworth calls The Medieval Principle that the plaintiff, having in
effect been damaged by his own act, and not by the act of the defendant, could not
recover.
Around the time the article was written in 1938, however, medieval notions were
giving ground. It was then that the idea of negligence as a basis of liability had taken
strong root and was starting to be recognized. Professor James showed the manifest
growth in the application of the Last Clear Chance, albeit its broad coverage, stating
that Something like this rather than any Medieval Principle seems to underlie later
decisions in the courts of Kings Bench and Common Pleas, for in these tribunals no
attention was paid to the timing of the parties respective negligence until after later.
Transitioning from a question of whose liability to an inquiry as to whose act was
last was finally entertained by the courts. This is in view of the apparent realization of
the unnecessary harshness of the rule if it is imposed in cases where the plaintiff is only
slightly negligent as compared to the defendant whose negligence is greater than that of
the former. A rule was developed that if the defendants negligence came appreciatively
later than that of the plaintiff, recovery may be had.
This doctrine was recognized in the case of Davies v. Mann. The court ruled that
this case justified as an exception to the Butterfield case on the theory that the plaintiffs
negligence was not the proximate cause of the harm. This exception to the contributory
negligence bar is called the Last Clear Chance Doctrine.
7 http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=4106&context=fss_papers Retirieved on
Jan. 12, 2014
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Humanitarian Doctrine
This rule of law has been continuously applied by foreign jurisdictions in various
cases even during the turn of the new century. In a few cases decided by the Virginia
Supreme Court, the Doctrine of Last Clear Chance has gradually evolved. The High
Court of Australia discussed a number of qualifications to the defendants defense of
contributory negligence and cited Davies v. Mann as its source. Some of these are the
negligent conduct of the defendant must come substantially later in time and another is
a situation where the defendant, but not the plaintiff, had a real opportunity, of which a
reasonable man would have availed himself, of avoiding mischief. 8
In the 1947 case of Winegarder v. Manny9, a 1946 case under the Supreme
Court of Iowa, Justice Garfield wrote that This doctrine, sometimes called the
humanitarian doctrine, proceeds upon the theory that notwithstanding the negligence of
an injured plaintiff, if defendant knows of the peril in which plaintiff has placed himself, it
is defendant's duty, after acquiring such knowledge, to avoid the accident if that can be
done by the exercise of ordinary care. Hence, having breached such duty to exercise
ordinary diligence, which resulted to injury, there may be recovery on part of the
claimant. The doctrine applies where a defendant is aware of plaintiff's perilous position
in time to have avoided the accident by the exercise of ordinary care but fails to do so.
The doctrine refers to negligence after negligence. 10
The plaintiff lay on his sled on the ground with the middle of his body struck by
the sedan. Defendant claimed that he did not see the plaintiff. However, by virtue of a
testimony, the defendant admitted that he has seen him. He had the opportunity to avert
the situation by moving the vehicle towards the opposite direction in order to avoid
8 Tort Law: Defects of the Comparative Negligence Standard by Dagobert L. Brito and Peter R. Hartley
http://press.anu.edu.au//wp-content/uploads/2011/06/3-4-A-6.pdf Retrieved on Jan. 13, 2014
9 http://ia.findacase.com/research/wfrmDocViewer.aspx/xq/fac.19460108_0042092.IA.htm/qx Retrieved
on Jan. 13, 2014
10 http://ia.findacase.com/research/wfrmDocViewer.aspx/xq/fac.19460108_0042092.IA.htm/qx Retrieved
on Jan. 14, 2013
Page 11 of 48
collision. It would have saved the victim because only half of his body was struck by the
sedan.
The court stated that it is its duty to consider the evidence in the light most
favorable to plaintiff despite the latters negligence. This supports the idea that the
Doctrine of Last Clear Chance is one which is applied also for the sake of humanitarian
reasons.
Plaintiffs and Defendants
Further, in a 1963 case of Smith v. Spradlin 11 decided by the Supreme Court of
Virginia, it was shown that the doctrine applies in two instances: First, where a plaintiff
negligently placed himself in peril from which he is physically unable to remove himself;
defendant is liable if he saw or should have seen him in time to avert accident by using
reasonable care; and Second, where plaintiff has negligently placed himself in peril from
which he is physically able to remove himself, but unconscious of peril. Here, the
defendant is only liable if he saw plaintiff and realized or should have realized his peril in
12
time to avert accident by using reasonable care.
In short, there are two kinds of plaintiffs: the helpless plaintiff and the inattentive
plaintiff. While there are also two defendants: the observant defendant and the
inattentive defendant.
The helpless plaintiff is someone who finds himself in a position that he is unable
to escape injury.13 Some courts require that there must be proof that the defendant
discovered the situation, had time to take the action but failed to do so, in order for the
plaintiff to recover. Otherwise, the claim is barred. On the other hand, an inattentive
plaintiff is the contrary, being someone who is in the position to escape injury.
11 1963 Smith v. Spradlin, 204 Va. 509, 132 S.E.2d 455.

12 http://www.brienrochelaw.com/tort-law/tort-case-law/l/last-clear-chance/ Retrieved on Jan. 13, 2014
13 http://legal-dictionary.thefreedictionary.com/Doctrine+of+last+clear+chance Retrieved on Jan. 13, 2014
Page 12 of 48
An observant defendant is one who has seen the plaintiff in time to exercise
diligence to avert the injury whereas the inattentive defendant is one who fails to see the
plaintiff or observe his helplessness in order to avoid the injury caused.
According to West's Encyclopedia of American Law 14, there are four possible
cases in which the rule of Last Clear Chance can be applied:
1. The typical situation involves the helpless plaintiff against the observant
defendant, and all courts that accept the doctrine will apply it;
2. It applies in the helpless plaintiff-inattentive defendant;
3. In inattentive plaintiff-observant defendant cases;
4. In cases involving inattentive plaintiff inattentive defendant;
The application of the rule widely depends on whether the respective jurisdiction
of courts recognize the Last Clear Chance principle.
Limitations
Robert E. Cook, who, likewise recognized the concept of Humanitarian Rule in
his Article in the William and Mary Review of Virginia Law. However, he also wrote that
many of the cases in Virginia on the Last Clear Chance Doctrine appear to be
irreconcilable. While it is perceived that the general rule is that the doctrine is to be
applied when the plaintiff is in peril as a result of his antecedent negligence and the
defendant discovers, or might have discovered with proper vigilance the peril just in time
to avoid it, the Supreme Court of Appeals emphasized that the interpretation of the last
clear chance doctrine should not be used to supersede the doctrine of contributory
negligence.
This points out that even if both the plaintiff and defendant were negligent, and
the negligence of the latter came later than that of the plaintiff which affords him the
14 Edition 2. Copyright 2008 The Gale Group, Inc.
Page 13 of 48
opportunity to avoid causing the injury, the plaintiff may not demand recovery where the
last clear chance is mutual, or where the plaintiff has an equal or better chance than the
defendant to avoid the incident.
Citing the case of Harris Motor Lines Inc vs. Green 15, a 1946 case decided by the
Supreme Court of Virginia, the question arose as to whether the trial court erred in
submitting to the jury the Doctrine of Last Clear Chance. The Supreme Court held that
based on the conclusive evidence shown, it was apparent that both truck drivers were
negligent and their failure to exercise due and proper diligence led to the accident which
barred recovery on the part of the plaintiff.
Harris Green owns a truck driven by his employee Charles Combs, who was
stuck on a two-lane road when the truck was brought to a stop at around 11:00 PM
because of mechanical failure. The night was dark, it was raining, and the truck driver
stayed in the vehicle until the collision happened when a Harris Motor Lines passed
through. While the driver of the latter truck claimed he could have seen the other some
150 feet away, he did not and was able to see it up close to 20-25 feet which was too
late to avoid it. The court held that the Green truck driver had the opportunity to avoid
the accident. Three blocks away was a service station which operated a wrecker used
to remove vehicles from the highway, but Combs did not do anything. He even failed to
follow the law by using flares and marker lights as required by the Virginia Code.
Instead, he sat inside the vehicle for approximately five hours until the accident
occurred.
Hence, the Virginia court barred plaintiffs recovery for this reason: His reckless
indifference to consequences was intentional for it was of his own volition and will. His
gross conduct was never superseded or rendered ineffective by any negligence on the
part of the other driver.
15 http://va.findacase.com/research/wfrmDocViewer.aspx/xq/fac.19460304_0040105.VA.htm/qx
Page 14 of 48
The afore-mentioned case also cited the similar and earlier ruling of Mr. Justice
Spratley in the case of Twyman v. Adkins16:
The defendant invited the disaster to the plaintiff and himself, and should bear
the consequences. Under the conditions existing on the night in question, the conduct
and acts of the defendant were such as to make the collision not only possible, but
highly probable, if not inevitable. He evidenced a complete disregard not only of the law,
but the rights of all persons traveling the highway. His actions constituted the proximate
cause of the injuries complained of, the natural and probable result of his gross
negligence.
In instances such as this, the interpretation of the courts as posited in the article
of Robert17 E. Cook applies, so that even if the doctrine of Last Clear Chance may be
raised by an injured plaintiff, it does not apply when his negligence is concurrent to that
of the defendants. Moreover, the Supreme Court held that in order to apply the rule, the
gross and continuing negligence of the driver of the Green truck must necessarily be
wiped away and it must be held that his negligence was not a cause but only a condition
of the accident.
The shift to Comparative Negligence and Apportionment Laws
In the United States, different states adopted varied concepts of the rule on
Contributory Negligence. It is understood that the concept of contributory negligence is
more severe than comparative negligence. Under the former, any sliver of fault on the
part of the plaintiff is enough to constitute a complete defense which can bar a possible
recovery.
On the other hand, comparative negligence, which originated in the early 1900s,
when the US Congress introduced provisions for apportionment of damages in several
federal safety and employment statutes, is said to be a sub-section of contributory

16 168 Va. 456, at page 468, 191 S.E. 615
17 Edition 2. Copyright 2008 The Gale Group, Inc.
Page 15 of 48
negligence, wherein the fault of the plaintiff is weighed and to such extent of the fault
the defendant committed will damages owed be paid on a percentage basis.
It is noted that very few jurisdictions in the United States actively employ
contributory negligence law. Throughout the 21 st century, there was a gradual shift into
the use of comparative negligence as basis of ruling tort cases. In 1996, 25 states in the
US had enacted statutes to replace contributory negligence with comparative
negligence. As of 1986, all except six states and the District of Columbia switched to the
standard of comparative negligence. States such as Alabama, Maryland, North
Carolina, Virginia and Washington D.C., are some of those which still use the
Contributory Negligence rule as of the year 2012. 18 Other states have already
transitioned to comparative negligence in their civil court system.
In 1945, England has also shifted towards apportionment of damages through
the Law Reform Act of 1945. In Australia, it was introduced in a series of States in
Southern Australia in 1936, Western Australia in 1947, Queensland in 1952, Tasmania
in 1954, the Australian Capital Territory in 1955, the Northern Territory in 1956, Victoria
19
in 1958, the New South Wales in 1965, and New Zealand in 1947.
The terms employed for Contributory Negligence and Comparative Negligence
are sometimes interchanged. Other jurisdictions coin their own terminologies for such.
The Law Reform Act of England, while pointing out to an apportionment of damages, is
termed a Contributory Negligence Law. This difference in the terminologies, however, is
not quite material when the main point of the adoption into law is to distribute liability
between the plaintiff and defendant.
In the United States, the states who have applied the Comparative Negligence
rule have either used the pure or modified comparative negligence platform. Pure
comparative negligence allows the plaintiff to recover damages even if he is 99% at
18 Negligence-.laws.com/comparative-negligence Retrieved on January 13, 2014

Page 16 of 48
fault. Whereas, the modified platform either bars or allows recovery on a percentage
rate basis and this is used by other states in the US.
The percentage basis of a modified comparative fault is either 50% or 51% and
this is already sufficient to prevent the collection of damages. However, should the
plaintiffs negligence be at a lower percentage than 50, the court will still take
cognizance of it but only to lessen the liability of the defendant.
Should the Last Clear Chance Doctrine be Abolished?
While Professors Brito and Hartley presented statistics of the shift to
Comparative Negligence from Contributory Negligence 20, some courts acknowledged
some considerations which militate against such shift. Among it was that it was a matter
of perplexity and a complex task because it is required that more material facts have to
be established to achieve an accurate percentage of recovery which may be granted to
the plaintiff. There would also be added cost to litigation as a result of further
investigation in this scheme. Nevertheless, it is a fact that at present, there are but a few
states in the US that still use the Contributory Negligence rule.
Because of this comparison of fault, a report written by members of the
Department of Legislative Services of Annapolis, Maryland 21, presented that there is an
abolition of the Doctrine of Last Clear Chance because the latters purpose is to mitigate
the harshness of the law on contributory negligence as compared to the comparative
rule which already provides for the apportionment of damages. This would mean that it
is not material whether whose negligence occurred last for as long as both parties were
negligent in order for damages to be awarded to the plaintiff. Although, however, the
same report maintains, that there are still states that retained the use of the principle.
21 Negligence Systems: Contributory Negligence, Comparative Fault, and Joint and Several Liability,
Department of Legal Services 2004, Annapolis, Maryland, USA
Page 17 of 48
In Canada, a report on the rule itself was published by the Alberta Law Reform
Institute. Its jurisdiction recognizes the last clear chance rule under its Contributory
Negligence Act and the very purpose of the report is to propose the abolition of the
doctrine because it is inconsistent with the apportionment principle being pursued by the
Contributory Negligence Act. It is noteworthy that the contributory negligence rule in this
jurisdiction is an all or nothing rule. It allows a contributorily negligent plaintiff to recover
100% of his loss if he can show that the defendant had the last clear chance to avoid
the injury. Likewise, it allows a defendant the avoidance of 100% liability if he can show
that the plaintiff had the last clear chance to avoid the consequences of the incident.
As the Court of Appeals of Canada puts in the Wickberg case, the last clear
chance rule is the dandelion of causation analysis; that is, the rule has so far resisted
all efforts to choke it out of the legal garden. The rule is, in the Courts view, an
anachronism which is no longer helpful or necessary in causation analysis. 22
Despite the refusal of many Canadian authorities to continue the use of the
principle, the Supreme Court of Canada itself refused to lay down the grounds and
extent to which it can be applied. Moreso, the concept is stuck in the Contributory
Negligence Act itself.
Among some of the afore-mentioned states that maintain the Doctrine of Last
Clear Chance is the state of Maryland, USA. A published article written by Donald G.
Gifford and Christopher J. Robinette on the history and the current status of Maryland
Torts Law and Liabilities discussed the need to abolish the Doctrine of Last Clear
Chance. The article entitled TIME TO END CONTRIBUTORY NEGLIGENCE AND
JOINT AND SEVERAL LIABILITY (2013)23 is a recent development leaning towards the
shift to comparative negligence. It is said that this rule as an exception to contributory
negligence has forced defendants to pay the entire judgment, whereas comparative
fault is a lot better because it will reduce the amount of some payments.
22 htt p:/ / www.law .ualberta.ca/ alri/ .

23 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2341740 Retrieved on January 13, 2014
Page 18 of 48
The report also stated that should comparative fault be the law of Maryland, the
last clear chance rule must have to be abrogated because of the following reasons:
First, the last clear chance was adopted as a means to mitigate the harshness or
contributory negligence; if contributory negligence is replaced, there will be no
harshness left to mitigate. Second, the effect of last clear chance is recovery of full
damages. This is clearly inconsistent with the apportionment rule sought to be pursued
by interested parties.
It is apparent that there are a few known jurisdictions within the United States
which maintain the use of the contributory negligence as a rule. While it is highly
inconsistent to maintain the Last Clear Chance Doctrine amidst the current application
of the Comparative Negligence, some courts still employ it from time to time. Hence,
this causes confusion putting into risk the quality of the courts rulings and which
necessarily calls for a question as to whether it should indeed be abolished.
Page 19 of 48
CHRONICLE OF THE
DOCTRINE IN PHILIPPINE
JURISPRUDENCE
The Only Thing That Is Constant Is Change -
Heraclitus
The Doctrine of Comparative Negligence or non-absolute contributory
negligence is a partial legal defense that reduces the amount of damages that a plaintiff
can recover in a negligence-based claim based upon the degree to which the plaintiff's
own negligence contributed to cause the injury. When the defense is asserted, the court
must decide the degree to which the plaintiff's negligence versus the combined
negligence of all other relevant factors which contributed to cause the plaintiff's
damages.24
This doctrine is a modification of the doctrine of contributory negligence which
prohibits any recovery by a plaintiff whose negligence contributed, even minimally, in
causing the damages.
Mitigation, Not an Absolute Bar to Recovery
As early as 1907, the Supreme Court was faced with the most controverted
question in the case of M. H., Rakes vs. The Atlantic, Gulf And Pacific Company, G.R.
No. 1719. Here it determined whether the negligence of the plaintiff contributed to the
accident, the extent of the injury caused and the legal effect given to it. 25 Would it be
according to the American Rule which defeats a recovery, or is it to be taken only in
reduction of damages?
In this case, the Supreme Court was left to seek the theory of the civil law in the
practice of other countries because of the absence of cases that define the effect of the
negligence of a plaintiff which contributed to his injury as one of its causes, though not
24 http://en.wikipedia.org/wiki/Comparative_negligence. Date retrieved: January 11, 2014
25 http://www.lawphil.net/judjuris/juri1907/jan1907/gr_1719_1907.html. Date retrieved: January 11, 2014
Page 20 of 48
the principal one. Here, the Supreme Court had the occasion to rule that a plaintiff
cannot recover where he contributes to the principal occurrence as one of its
determining factors. On the other hand, where, in concurrence with the incident he
contributes only to his own injury, he may recover the amount that the defendant
responsible for the event should pay for such injury, less a sum deemed a suitable
equivalent for his own imprudence. This was introduced as the Doctrine of Comparative
Negligence clearly rejecting the Doctrine of Contributory Negligence espoused by
England and the United States. Thus, the Supreme Court deducted from the award to
the plaintiff, the amount fairly attributable to his negligence.
A re-echo of the Rakes vs. Atlantic, Gulf and Pacific Co. case was made in the
subsequent case of Robert V. Dell vs. Manila Electric Railroad And Light Company,
G.R. No. L-4290 decided on July 21, 1909.The defendant in such case cited many
cases and argued that the plaintiff cannot recover, having been negligent which thus
contributed to his injuries. It ruled that:
This court in a divided opinion (Rakes vs. Atlantic, Gulf and Pacific Co.) has
repudiated the doctrine of contributory negligence as adopted in the United
States and England and has adopted in its stead a doctrine which might be
designated a proportional contributory negligence doctrine. This doctrine must
stand until it is overruled, whether we agree with it or not. Mr. Justice Tracey
wrote that opinion. The doctrine established in the majority of opinion seems to
have been taken from the jurisprudence of France, Spain, and Canada. (Rakes
vs. Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359, 371, 372.)
In that case this court adopted the doctrine that the contributory negligence of
the person injured had the effect only of reducing the amount of damages which
he might recover, and cited decisions of the supreme court of France in its
support. The court further held that contributory negligence did not exonerate the
Page 21 of 48
defendants whose fault had been the immediate cause of the accident, but
entitled them to a reduction of damages only.26
Here, the Supreme Court held that the damage to plaintiff's property was caused
by defendant's negligence without finding fault or negligence on the plaintiff's employee,
to have caused or contributed to the damage. It thus rendered judgment for plaintiff.
A year after the latter case was decided, G.R. No. L-4977, a March 22, 1910
case of David Taylor vs. The Manila Electric Railroad And Light Company was decisive
in applying the same doctrine introduced in the early case of Rakes vs. Atlantic, Gulf
and Pacific Co. It invoked the rule of the Roman law, Quod quis ex culpa sua damnum
sentit, non intelligitur sentire, implying that he who suffers damage by his own fault, has
no right to complain.27
In this case, it found that the plaintiff had the adequate faculty and understanding
to be rational of the danger to which he exposed himself when he put the match to the
contents of the cap so that while the injuries would not have been incurred without the
negligent act of the defendant in leaving the caps exposed on its premises, it was
plaintiff's own act was the proximate and principal cause of the mishap which caused
the injury.
It also recognized the fact that there does not appear to be anything in the Civil
Code which expressly lays down the law touching contributory negligence in this
jurisdiction. Thus, the interpretation placed upon its provisions by the supreme court of
Spain, and by this court in the case of Rakes vs. Atlantic, Gulf and Pacific Co. (7 Phil.
Rep., 359) stands. It explicitly stated that:
Finally we think the doctrine in this jurisdiction applicable to the case at bar was
definitely settled in this court in the maturely considered case of Rakes vs.
Atlantic, Gulf and Pacific Co. (supra), wherein we held that while "There are
26 http://www.lawphil.net/judjuris/juri1909/jul1909/gr_l-4290_1909.html. Date retrieved: January 11, 2014
27 http://legal-dictionary.thefreedictionary.com/Quod+quis+ex+culpa+sua+damnum+sentit. Date retrieved:
January 12, 2014
Page 22 of 48
many cases (personal injury cases) was exonerated," on the ground that "the
negligence of the plaintiff was the immediate cause of the casualty" (decisions of
the 15th of January, the 19th of February, and the 7th of March, 1902, stated in
Alcubilla's Index of that year); none of the cases decided by the supreme court of
Spain "define the effect to be given the negligence of its causes, though not the
principal one, and we are left to seek the theory of the civil law in the practice of
other countries;" and in such cases we declared that law in this jurisdiction to
require the application of "the principle of proportional damages," but expressly
and definitely denied the right of recovery when the acts of the injured party were
the immediate causes of the accident.28
Thus under the doctrine stated, the immediate cause of the explosion was his
own act in putting a match to the contents of the cap which resulted in plaintiff's injury.
Having contributed to the principal occurrence, he cannot recover.
Application of the Doctrine of Last Clear Chance
The Doctrine of Last Clear Chance in the Law of Torts excuses the plaintiffs
contributory negligence and allows the plaintiff to recover damages without reference to
said partys prior negligence.
The rule of last clear chance operates when the plaintiff negligently enters into an
area of danger from which the person cannot extricate himself or herself, the defendant
has the final opportunity to prevent the harm that the plaintiff otherwise will suffer. The
doctrine was formulated to relieve the severity of the application of the contributory
negligence rule against the plaintiff, which completely bars any recovery if the person
was at all negligent.29
Limited Application in Collisions at Sea
28 http://www.lawphil.net/judjuris/juri1910/mar1910/gr_l-4977_1910.html. Date retrieved: January 12,

2014
29 http://legal-dictionary.thefreedictionary.com/Doctrine+of+last+clear+chance. Date retrieved: January
11, 2014
Page 23 of 48
Early on March 10, 1914, the Supreme Court decided the case of C. B. Williams
vs. Teodoro R. Yangco which without pronouncing whether or not the Doctrine of
Contributory Negligence is applicable in our jurisdiction, limited the application of the
rule on Last Clear Chance in collisions at sea such that only where a party discovers the
perilous situation in time to avoid the accident and does nothing to avoid such situation
he cannot escape liability. Assuming that the doctrine is applicable in our jurisdiction,
plaintiff cannot escape liability due to his contributory negligence and blame defendant
hiding under the Doctrine of Last Clear Chance, in the absence of showing that
defendant recognized the perilous situation just in time to avoid the accident.
It also stated that the rule of liability in Philippine jurisdiction for maritime
accidents is clearly, definitely, and unequivocally laid down in Article 827 of the Code of
Commerce which states that if both vessels may be blamed for the collision, each one
shall be liable for its own damages and both shall be jointly responsible for the loss and
damages suffered by their cargoes.
However, the peculiar facts of the case would show that the only loss incurred
was that of the launch Euclid and none over the steamer Subic such that counsel for the
plaintiff insisted that under the doctrine of "the last clear chance," the defendant should
be held liable having had the last opportunity to avoid the collision by a simple
maneuver despite the fact that plaintiff caused the exposure to collision.
Here, the Supreme Court took cognizance of the English rule which states that
the fault of the first vessel in failing to exhibit proper lights or to take the proper side of
the channel will relieve from liability one who negligently runs into such vessels before
he sees it; although it will not be a defense to one who, having timely warning of the
danger of collision, fails to use proper care to avoid it. 30
In the case at bar, it was found out that:
30 Pollock on Torts, 374. Date retrieved: January 11, 2014
Page 24 of 48
The most that can be said in support of plaintiff's contention is that there was
negligence on the part of the officers on defendant's vessel in failing to recognize
the perilous situation created by the negligence of those in charge of plaintiff's
launch, and that had they recognized it in time, they might have avoided the
accident. But since it does not appear from the evidence that they did, in fact,
discover the perilous situation of the launch in time to avoid the accident by the
exercise of ordinary care, it is very clear that under the above set out limitation to
the rule, the plaintiff cannot escape the legal consequences of the contributory
negligence of his launch, even were we to hold that the doctrine is applicable in
the jurisdiction, upon which point we expressly reserve our decision at this time. 31
Full Liability against the Party at Fault
The Doctrine of Last Clear Chance was primarily applied in the infamous case of
Amado Picart vs. Frank Smith, Jr., G.R. No. L-12219, March 15, 1918 case. In this
case, both parties were at fault. The plaintiff was guilty of former negligence in putting
himself on the wrong side of the road and the defendant, found to be negligent of the
duty to guard against the susceptible risk against the plaintiff. It was noted that the
negligence of the defendant succeeded the negligence of the plaintiff by an appreciable
interval and under these circumstances; the law is that the person who has the last fair
chance to avoid the impending harm and fails to do so is chargeable with the
consequences, without reference to the prior negligence of the other party. This is also
known as the Doctrine of Last Clear Chance.
Mitigation of Damages
The decision in the case of Rakes vs. Atlantic, Gulf and Pacific Co. was
mentioned in contrast with present case such that in the Rakes case (7 Phil. Rep., 359)
the Supreme Court there held that while contributory negligence on the part of the

2014
Page 25 of 48
person injured did not constitute a bar to recovery, it could be received in evidence to
reduce the damages which would otherwise have been assessed wholly against the
other party. However, the facts in the present case reveal that the defendant's
negligence in the present case consisted in an omission only unlike in the Rakes case
where the liability of the company arose from its responsibility for the dangerous
condition of its track.
In the present case, the Supreme Court stated that:
Where the defendant was actually present and operating the automobile which
caused the damage, we do not feel constrained to attempt to weigh the
negligence of the respective parties in order to apportion the damage according
to the degree of their relative fault. It is enough to say that the negligence of the
defendant was in this case the immediate and determining cause of the accident
and that the antecedent negligence of the plaintiff was a more remote factor in
the case.32
In the 1929 case of Ignacio Del Prado vs. Manila Electric Co., G.R. No. L-29462,
The Supreme Court ruled that the contributory negligence of the plaintiff is a mitigating
circumstance obvious from the fact that the plaintiff's negligence in attempting to board
the moving car was not the proximate cause of the injury. The direct and proximate
cause of the injury was the act of appellant's motorman in putting on the power
prematurely.33
The facts in the present case are one where negligence of the defendant
succeeds the negligence of the plaintiff which is considered as the direct and proximate
cause of the injury. This situation is similar to that of the case of Picart vs. Smith which
applied the Doctrine of Last Clear Chance which states that the person who has the last

2014
2014
Page 26 of 48
fair chance to avoid impending harm and fails to do so is liable without reference to the
prior negligence of the other party. Such rule however was not applied in the case at bar
where the Supreme Court in this case held that as in Rakes vs. Atlantic, Gulf and
Pacific Co. (7 Phil., 359), the negligence of the plaintiff however contributory to the
accident, must be considered as a mitigating circumstance.
The same ruling was held in the subsequent case of Tomas Bernal and
Fortunata Enverso vs. J. V. House and Tacloban Electric and Ice Plant, Ltd., G.R. No. L-
30741 January 30, 1930 where a majority of the court departed from the rule that the
presence of contributory negligence constitutes a bar to recovery from the party
proximately adjudged to be liable. In this case, the Supreme Court pronounced that:
The mother and her child had a perfect right to be on the principal street of
Tacloban, Leyte, on the evening when the religious procession was held. There
was nothing abnormal in allowing the child to run along a few paces in advance
of the mother. No one could foresee the coincidence of an automobile appearing
and of a frightened child running and falling into a ditch filled with hot water. The
doctrines announced in the much debated case of Rakes vs. Atlantic, Gulf and
Pacific Co. ([1907], 7 Phil., 359), still rule. The contributory negligence of the
child and her mother, if any, does not operate as a bar to recovery, but in its
strictest sense could only result in reduction of the damages. 34
A similar ruling was also held in the case of Julian Del Rosario vs. Manila Electric
Company, G.R. No. L-35283 November 5, 1932. It was affirmed by the Supreme Court
that contributory negligence, not having been the determining cause of the accident, is
not fatal to the partys right of action.
Early Application of the Doctrine of Contributory Negligence in Relation to Master
and Servant/Principal and Agent Relationship
34 http://www.lawphil.net/judjuris/juri1968/aug1968/gr_l-22183_1968.html. Date retrieved: January 10,

2014
Page 27 of 48
Interestingly, a year later, the Supreme Court in March 29, 1933 made mention of
the application of the Doctrine of Contributory Negligence In the early case of
Consolacion Junio vs. The Manila Railroad Company, G.R. No. L-37044 where the
Supreme Court raised in this jurisdiction for the first time the question of whether the
driver's contributory negligence is imputable to the plaintiff passengers so as to bar
them from the right to recover damages suffered by them by reason of the accident. It
was held in a number of cases that the negligence of a driver who is guilty of
contributory negligence, cannot be imputed to a passenger who has no control over him
in the management of the vehicle and with whom he sustains no relation of master and
servant. This is a well recognized principle of law.
It cited the case of Little vs. Hackett (116 U.S. 366; 29 Law. ed., 652, 654, 657),
where the United States Supreme Court said:
That one cannot recover damages for an injury to the commission of which he
has directly contributed is a rule of established law and a principle of common
justice. And it matters not whether that contribution consists in his participation in
the direct cause of the injury, or in his omission of duties which, if performed,
would have prevented it. If his fault, whether of omission or commission, has
been the proximate cause of the injury, he is without remedy against one also in
the wrong. It would seem that the converse of this doctrine should be accepted
as sound; that when one has been injured by the wrongful act of another, to
which he has in no respect contributed, he should be entitled to compensation in
damages from the wrongdoer. And such in the generally received doctrine,
unless a contributory cause of the injury has been the negligence or fault of
some person towards whom he sustains the relation of superior or master, in
which case the negligence is imputed to him, though he may not have personally
35
participated in or had knowledge of it; and he must bear the consequences.

2014
Page 28 of 48
In the present case however, nothing would show that the plaintiff passengers
have incurred in any way negligence imputable to them and without any reason
whatsoever why they should be made responsible for the driver's negligence. Thus,
they are entitled to recover damages as victims occasioned by the accident.
Early Application of the Doctrine of Contributory Negligence in the Area of
Banking
Three years later, the Court held in the case of Philippine National Bank vs. The
National City Bank of New York, and Motor Service Company, Inc., G.R. No. L-43596,
October 31, 1936, that the holder, payee, or presenter cannot escape the imputation
and he may lose right to cast the loss upon the banker of having contributed towards
the mistake prior to that of the banker who was negligent in failing to recognize that the
handwriting is not that of his customer and paid upon the forged signature.
In First Nat. Bank vs. United States National Bank ([1921], 100 Or., 264; 14 A. L.
R., 479; 197 Pac., 547), the court declared:
"A holder cannot profit by a mistake which his negligent disregard of duty has
contributed to induce the drawee to commit. . . . The holder must refund, if by his
negligence he has contributed to the consummation of the mistake on the part of
the drawee by misleading him. . . . If the only fault attributable to the drawee is
the constructive fault which the law raises from the bald fact that he has failed to
detect the forgery, and if he is not chargeable with actual fault in addition to such
constructive fault, then he is not precluded from recovery from a holder whose
conduct has been such as to mislead the drawee or induce him to pay the check
or bill of exchange without the usual security against fraud. The holder must
refund to a drawee who is not guilty of actual fault if the holder was negligent in
not making due inquiry concerning the validity of the check before he took it, and
if the drawee can be said to have been excused from making inquiry before
Page 29 of 48
taking the check because of having had a right to, presume that the holder had
made such inquiry."36
Without any actual change in the abstract doctrines of the law, which are clear,
just, and simple enough, the gradual but sure tendency and effect of the decisions have
been to put as heavy a burden of responsibility upon the payee as upon the drawee,
contrary to the original custom.37
Recognizance of the Doctrine of Last Clear Chance
In 1958, the Supreme Court had the occasion to enlighten on the Doctrine of Last
Clear Chance in Mr. And Mrs. Amador C. Ong vs. Metropolitan Water District, G.R. No.
L-7664. In this case, appellant argues that appellee must be held liable under the said
doctrine having the last opportunity to save the deceased even assuming that the
deceased is partly to be blamed for the untoward incident. Here, the Supreme Court
ruled that the doctrine cannot be applied by emphasizing that:
The doctrine of last clear chance simply means that the negligence of a claimant
does not preclude a recovery for the negligence of defendant where it appears
that the latter, by exercising reasonable care and prudence, might have avoided
injurious consequences to claimant notwithstanding his negligence. Or, "As the
doctrine usually is stated, a person who has the last clear chance or opportunity
of avoiding an accident, notwithstanding the negligent acts of his opponent or the
negligence of a third person which is imputed to his opponent, is considered in
law solely responsible for the consequences of the accident." (38 Am. Jur. pp.
900-902)38
In the case presented, it appears that there is no room to apply the doctrine to
impute liability to appellee it having been shown that it was unknown how the minor
36 http://www.lawphil.net/judjuris/juri1936/oct1936/gr_l-43596_1936.html. Date retrieved: January 11,
2014
37 Supra. Date retrieved: January 11, 2014
38 http://www.lawphil.net/judjuris/juri1958/aug1958/gr_l-7664_1958.html. Date retrieved: January 10,
2014
Page 30 of 48
victim came into the swimming pool without any companion and that the lifeguard
immediately responded to the call for help, retrieved the body of the victim and exerted
all effort to put the victim back to life. It also made clear that:
The last clear chance doctrine can never apply where the party charged is
required to act instantaneously, and if the injury cannot be avoided by the
application of all means at hand after the peril is or should have been
discovered; at least in cases in which any previous negligence of the party
charged cannot be said to have contributed to the injury. 39
The case of Gregorio Anuran, Maria Maligaya, Lapaz Laro, Et Al. vs. Pepito
Buno, Pedro Gahol, Luisa Alcantara, Guillermo Razon, Aanselmo Maligaya and
Ceferina Aro, G.R. Nos. L-21353 and L-21354, May 20, 1966 on the other hand made it
clear that:
The principle about the "last clear chance" would call for application in a
suit between the owners and drivers of the two colliding vehicles. It does not
arise where a passenger demands responsibility from the carrier to enforce its
contractual obligations. For it would be inequitable to exempt the negligent driver
of the jeepney and its owners on the ground that the other driver was likewise
guilty of negligence.40
The Supreme Court gave due course to the plaintiffs petition insisting that the
driver and the owners of the jeepney should also be made liable. There was error of law
in releasing the jeepney from liability. Article 1755 of the New Civil Code requires
"utmost diligence" from the carriers to transport its passengers and they are "presumed
to have been at fault or to have acted negligently, unless they prove that they have
observed extraordinary diligence" (Art. 1756). This legal presumption of negligence is
39 O'Mally vs. Eagan, 77 ALR 582, 43 Wyo. 233, 350, 2, P2d 1063. (A.L.R. Digest, Vol. 8, pp. 955-956).
Date retrieved: January 10, 2014
40 http://www.lawphil.net/judjuris/juri1966/may1966/gr_l-21353-4_1966.html. Date retrieved: January 12,
2014
Page 31 of 48
confirmed by the Court of Appeals' finding that the driver of the jeepney was at fault in
parking the vehicle improperly. The driver and the owners of the jeepney must answer
for injuries to its passengers.
Another case which followed the decision in Gregorio Anuran, Maria Maligaya,
Lapaz Laro, Et Al. vs. Pepito Buno, Pedro Gahol, Luisa Alcantara, Guillermo Razon,
Aanselmo Maligaya and Ceferina Aro was Pantranco North Express, Inc. v. Maricar
Bascos Baesa, G.R. Nos. 79050-51, November 14, 1989. In this case, petitioner alleged
that the Doctrine of Last Clear Chance must be applied and hold the driver of the
passenger jeepney who had the last clear chance to avoid the collision to be liable for
being negligent. Thus the Supreme Court shed light on the applicability of the doctrine,
the condition as to when the doctrine is made applicable and when it becomes non-
applicable. It ruled that:
The doctrine of last clear chance applies only in a situation where the defendant,
having the last fair chance to avoid the impending harm and failed to do so,
becomes liable for all the consequences of the accident notwithstanding the prior
negligence of the plaintiff. In order that the doctrine of last clear chance may be
applied, it must be shown that the person who allegedly had the last opportunity
to avert the accident was aware of the existence of the peril or with exercise of
due care should have been aware of it. This doctrine of last chance has no
application to a case where a person is to act instantaneously, and if the injury
cannot be avoided by using all means available after the peril is or should have
been discovered.41
Subsequent Rejection of the Application of the Doctrine of Last Clear Chance
In the celebrated case of Phoenix Construction, Inc. and Armando U. Carbonel
vs.The Intermediate Appellate Court and Leonardo Dionisio, G.R. No. L-65295, March
41 http://www.chanrobles.com/cralaw/1989novemberdecisions.php?id=844. Date retrieved: January 12,

2014
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10, 1987, it turned around the prevailing rules that permitted courts to grant recovery to
a plaintiff who had also been negligent provided that the defendant had the last clear
chance to avoid the casualty and failed to do so. It ruled that there is hardly any role for
the Doctrine of last Clear Chance to apply in our jurisdiction where Article 2179 of the
Civil Code of the Philippines is explicit that:
Article 2179. When the plaintiff's own negligence was the immediate and
proximate cause of his injury, he cannot recover damages. But if his negligence
was only contributory, the immediate and proximate cause of the injury being the
defendant's lack of due care, the plaintiff may recover damages, but the courts
shall mitigate the damages to be awarded.42
The Supreme Court in this controversial case held that:
Private respondent Dionisio's negligence was "only contributory," that the
"immediate and proximate cause" of the injury remained the truck driver's "lack of
due care" and that consequently respondent Dionisio may recover damages
though such damages are subject to mitigation by the courts (Article 2179, Civil
Code of the Philippines).43
The last clear chance doctrine of the common law was imported into our
jurisdiction by Picart vs. Smith44 but it is a matter for debate whether, or to what extent, it
has found its way into the Civil Code of the Philippines. The historical function of that
doctrine in the common law was to mitigate the harshness of another common law
doctrine or rule that of contributory negligence. 45
Recent Jurisprudence to Shed Light on the Doctrine
42 http://philippinelaw.info/new-civil-code/article-2179_when-the-plaintiff-s-own-negligence-was-the-
immediate-and-proximate-cause-of.html. Date retrieved: January 10, 2014
43 http://www.lawphil.net/judjuris/juri1987/mar1987/gr_l_65295_1987.html. Date retrieved: January 11,

2014
44 Supra
45 Supra
Page 33 of 48
In the 1990 case of Philippine Rabbit Bus Lines, Inc v. IAC, G.R. Nos. 66102-04
and in the subsequent 1991 case entitled Bustamante v. CA, G.R. No. 89880, the
Supreme Court had the opportunity to clarify and limit the application of the Doctrine of
Last Clear Chance only to cases where the conflicting parties are the driver and/or
owner of the respective colliding vehicles. The Supreme Court held that the Doctrine of
Last Clear Chance cannot be raised as a defense against the claim of the passengers
of a common carrier, whose cause of action did not arise from a quasi-delict but from a
breach of contract of carriage. The Supreme Court in the aforementioned cases
reiterated its ruling in the much earlier case of Anuran, et.al. v. Buo, G.R. Nos. L-
21353 and L-21354 (1996), where it ruled that:
"[t]he principle about "the last clear" chance, would call for application in a suit
between the owners and drivers of the two colliding vehicles. It does not arise
where a passenger demands responsibility from the carrier to enforce its
contractual obligations. For it would be inequitable to exempt the negligent driver
of the jeepney and its owners on the ground that the other driver was likewise
guilty of negligence.
After the 1990 and 1991 cases comes the case of McKee vs. IAC, G.R. No. L-
68102, July 16, 1992, where the defendants impute negligence on the part of the
plaintiff so as to avoid liability. The court in this case ruled that even if, assuming
arguendo that the plaintiff indeed committed negligence on his end, this would not bar
him from recovering by virtue of the doctrine of last clear chance. The court cited the
case of Bustamante v. CA where it held:
The respondent court adopted the doctrine of "last clear chance." The doctrine,
stated broadly, is that the negligence of the plaintiff does not preclude a recovery
for the negligence of the defendant where it appears that the defendant, by
exercising reasonable care and prudence, might have avoided injurious
consequences to the plaintiff notwithstanding the plaintiff's negligence. In other
Page 34 of 48
words, the doctrine of last clear chance means that even though a person's own
acts may have placed him in a position of peril, and an injury results, the injured
person is entitled to recovery (sic). As the doctrine is usually stated, a person
who has the last clear chance or opportunity of avoiding an accident,
notwithstanding the negligent acts of his opponent or that of a third person
imputed to the opponent is considered in law solely responsible for the
consequences of the accident. (Sangco, Torts and Damages, 4th Ed., 1986, p.
165).
The practical import of the doctrine is that a negligent defendant is held liable to
a negligent plaintiff, or even to a plaintiff who has been grossly negligent in
placing himself in peril, if he, aware of the plaintiff's peril, or according to some
authorities, should have been aware of it in the reasonable exercise of due care,
had in fact an opportunity later than that of the plaintiff to avoid an accident (57
Am. Jur., 2d, pp. 798-799).
The Supreme Court in the same case proceeded to cite its ruling in the case of
Picart v. Smith, 37 Phil. 809 (1918) where the Supreme Court initially set the requisites
for the application of the said doctrine. The Supreme court in the Picart case ruled thus:
The doctrine applies only in a situation where the plaintiff was guilty of prior or
antecedent negligence but the defendant, who had the last fair chance to avoid
the impending harm and failed to do so, is made liable for all the consequences
of the accident notwithstanding the prior negligence of the plaintiff. The
subsequent negligence of the defendant in failing to exercise ordinary care to
avoid injury to plaintiff becomes the immediate or proximate cause of the
accident which intervenes between the accident and the more remote negligence
of the plaintiff, thus making the defendant liable to the plaintiff.
Page 35 of 48
Generally, the last clear chance doctrine is invoked for the purpose of making a
defendant liable to a plaintiff who was guilty of prior or antecedent negligence,
although it may also be raised as a defense to defeat claim (sic) for damages.
So far, it may be culled from the above-mentioned cases that the doctrine of last
clear chance applies when the following requisites are met:
1. That the cause of action has arisen from a tort or a quasi-delict and not from the
right of a passenger to sue due to a breach of contract of carriage (Philippine Rabbit
Bus Lines, Inc v. IAC, 1990);
2. The claim for damages must be between the respective driver and owner of the
colliding vehicles who appear to be both negligent (Bustamante v. CA, 1991);
3. The [plaintiff] was guilty of prior or antecedent negligence;
4. It was the [defendant] who had the last fair chance to avoid the impending harm
but failed to do so;
5. The subsequent negligence of the [defendant] was the proximate cause of the
damage while;
6. The antecedent negligence of the [plaintiff] is but remote (Picart v.Smith, 1918).
With these elements in mind, let us now proceed with more recent decided cases
which touched upon the doctrine of last clear chance.
In the decided case of BPI v. CA, G.R. No. 102383, November 26 1992, there
was an attempt from the petitioner bank BPI to raise the doctrine of last clear chance to
avoid liability over the payment of forged checks to an impostor and to impute the
resultant damages solely to the collecting bank (China bank). It may be prudent to note
that this is not the first time that the doctrine of last clear chance was touched upon in
cases involving negligence of banks; in previously decided cases, the court ruled on the
Page 36 of 48
affirmative regarding the doctrines applicability in issues arising from commercial law
cases. In the present case however, the court desisted from applying the doctrine based
on the finding that the facts of the case did not meet the following requisites: (1) It was
BPIs acts which is the proximate cause of the loss and (2) Chinabank clearly did not
have the fair chance to avoid the impending harm as it had no prior notice of the defects
of the forged checks.
That being the case, the substantial demands of justice require that the loss be
apportioned between BPI and Chinabank due to their comparative negligence.
In the case of LBC Air Cargo vs. CA, G.R. No.101683 (1995), the application of
the doctrine of last clear chance is yet again put to test. In the present case, the court
was constrained to rule the doctrine inapplicable given that it was petitioners
negligence which was the proximate cause of the accident. Additionally, the court ruled
that the doctrine of last clear chance also referred to as supervening negligence or as
discovered peril cannot apply because when the incident occurred, no appreciable time
had elapsed from the moment the petitioner swerved to his left, to the actual impact,
that could have afforded the victim a last clear opportunity to avoid the collision.
It was however ruled by the court in the present case that a mitigation of
petitioners liability for damages is proper due to the victims contributory negligence.
In the 1997 case of Philippine Commercial International Bank v. CA and
Rommels Mktg. Corp., G.R. No. 97626, the court held petitioner bank to be the
culpable party based on the Doctrine of Last clear chance because setting aside the
antecedent negligence of the private respondent in entrusting cash to its dishonest
employee, it was petitioner bank who had the last clear opportunity to avert the injury,
simply by faithfully observing their self-imposed validation procedure. The court despite
declaring the applicability of the doctrine in the said case deemed it fair to allocate the
damage between the parties, due to the private respondents contributory negligence.
Page 37 of 48
In the proponents point of view, this ruling is contradictory to the long-standing
doctrine of last clear chance. As ruled in Picart v. Smith, the said doctrine apply where
both parties are guilty of negligence, but the negligent act of one succeeds that of the
other by an appreciable interval of time, the person who has the last fair chance to
avoid the impending harm and fails to do so is chargeable with the consequences,
without reference to the prior negligence of the other party.
Stated differently, should the doctrine of last clear chance be applicable, then the
consequences [damages] should solely devolve upon the party who had the last fair
chance to avoid the impending harm without consideration of the antecedent negligence
of the other party. Another personal observation by the proponents, but this is again but
a theory, in other cases involving the doctrine, the court was able to distinguish the
negligence of one party to be the proximate cause of the damage while that of the other
to be but remote. In the case of PCIB v. CA (1997) however, although the court held the
bank to be the one liable based on the doctrine (as it was the one who had the last fair
chance to avoid the harm), it did not touch upon the issue of whose negligence was the
proximate cause and which was remote, thus (presumably) necessitating the court to
apportion the loss among the parties.
In another case entitled Sanitary Steam Laundry v.CA, G.R. No.
119092,December 10, 1998 the court had the opportunity to reiterate that the doctrine of
last clear chance cannot stand to make a party solely liable for the damages caused, if
such party had no opportunity to avoid the impending harm. The court in the case
further ruled based on evidence that there is no way either driver could have avoided
the collision, clearly, the doctrine cannot apply in the said case.
In 2000, the court held the doctrine to be applicable in the case of Canlas vs.
Court of Appeals, G.R. No. 112160, February 28, 2000. In the aforestated case, the
court adjudged respondent bank to be solely liable for the losses of his client despite the
antecedent negligence of the latter ruling thus:
Page 38 of 48
Under the doctrine of last clear chance, which is applicable here, the respondent
bank must suffer the resulting loss. In essence, the doctrine of last clear chance
is to the effect that where both parties are negligent but the negligent act of one
is appreciably later in point of time than that of the other, or where it is impossible
to determine whose fault or negligence brought about the occurrence of the
incident, the one who had the last clear opportunity to avoid the impending harm
but failed to do so, is chargeable with the consequences arising therefrom.
Stated differently, the rule is that the antecedent negligence of a person does not
preclude recovery of damages caused by the supervening negligence of the
latter, who had the last fair chance to prevent the impending harm by the
exercise of due diligence.
Assuming that Osmundo Canlas was negligent in giving Vicente Maosca the
opportunity to perpetrate the fraud, by entrusting to latter the owner's copy of the
transfer certificates of title of subject parcels of land, it cannot be denied that the
bank had the last clear chance to prevent the fraud, by the simple expedient of
faithfully complying with the requirements for banks to ascertain the identity of
the persons transacting with them.
For not observing the degree of diligence required of banking institutions, whose
business is impressed with public interest, respondent Asian Savings Bank has
to bear the loss sued upon.
At this point, it seems that the rules on the applicability of the doctrine of last
clear chance were already well-established. In 2003, the court again had the opportunity
to rule the non-applicability of the doctrine in cases wherein the party had no
opportunity to ponder the situation at all.
On the same year, the ruling in the case of Consolidated Bank and Trust
Corporation vs. CA, G.R. No. 138569, September 11, 2003 came out which held the
doctrine of last clear chance as not applicable to exonerate defendant bank from
Page 39 of 48
liability. The court in the said case ruled that the banks liability was due to breach of
contract due to negligence in the performance of its contractual obligation to L.C. Diaz,
thus making it a case of culpa contractual, where neither the contributory negligence of
the plaintiff nor his last clear chance to avoid the loss would result to the exoneration of
the defendant banks liability.
The court further held in the same case that the contributory negligence or last
clear chance by the plaintiff merely serves to reduce the recovery of damages by the
plaintiff but does not exculpate the defendant bank from his breach of contract.
This ruling of the court is somehow similar to its ruling in an earlier discussed
case that the doctrine of last clear chance cannot be raised as a defense when the
cause of action has arisen by virtue of a breach of contractual obligation (contract of
carriage). At this juncture, it may be crucial to note the differences between the
immediately preceding case and the earlier discussed cases involving banks.
1. In the present case, the parties are the bank and the client involving the
unauthorized withdrawal from the clients account. The court adjudged the bank
to be liable and rendered the doctrine inapplicable in cases which are culpa
contractual in nature.
2. In Bank of the Philippine Islands v. CA, G.R. No. 102383 (1992), the parties to
the case are the collecting and the drawee bank. The doctrine was again not
applied here as it did not meet the requirements of the doctrine to wit; proximate
cause and last clear chance to avoid the loss.
3. In Philippine Commercial International Bank v. CA and Rommels Mktg. Corp.,
G.R. No. 97626 (1997) on the otherhand is a case between a Bank and its Client.
The court in this case held the doctrine to be applicable and made the bank liable
as it had the last opportunity to avert damage.
Page 40 of 48
4. In Canlas vs. Court of Appeals, G.R. No. 112160, February 28, 2000, it is a
case between a bank and the real owner of a property which was mortgaged
without authority and subsequently foreclosed. The court upheld the doctrine to
apply with a result of making the bank solely liable for the owners loss.
It may be observed from the foregoing cases that the second and fourth cases do
not involve a fiduciary relationship between the conflicting parties as the case of BPI vs.
CA is as between a drawee and collecting bank while that of Canlas v. CA involve a
bank and a person who is not a client depositor but the owner of a foreclosed property
which was mortgaged to the bank without authority.
The first and third cases on the otherhand involve a bank and its client whose
relationships are fiduciary in character. In Consolidated Bank and Trust Corporation vs.
CA (2003), the doctrine was held not applicable to exonerate bank from liability despite
the negligence of its client, because the banks liability is based on its negligence in the
performance of its contractual obligation. In Philippine Commercial International Bank v.
CA (1997) on the otherhand, the court held the doctrine applicable and held the bank to
be liable as it had the last clear opportunity to avert damage. The obvious difference
between the two cases is that in the first case the one who is trying to raise it against
the other is the bank, while in the third case, it was the client who raised it against the
bank so as to avoid liability. At this point, the proponents may only second guess on why
the Supreme Court ruled differently in the said cases. It is of our view that because
banks are imbued with public interest, it is the duty of the banks to observe the highest
degree of care in treating their clients account, so that banks cannot simply employ the
doctrine of last clear chance to avoid liability by the expedient means of imputing
negligence to its client.
Despite the continuous flip-flopping of the Supreme Court Decisions regarding
the applicability of the doctrine of last clear chance, it is not until the case of Tiu vs.
Page 41 of 48
Arriesgado(2004), where the court explicitly challenged the application of the principle in
Philippine jurisdiction and we quote:
The common law notion of last clear chance permitted courts to grant
recovery to a plaintiff who has also been negligent provided that the defendant
had the last clear chance to avoid the casualty and failed to do so. Accordingly, it
is difficult to see what role, if any, the common law of last clear chance doctrine
has to play in a jurisdiction where the common law concept of contributory
negligence as an absolute bar to recovery by the plaintiff, has itself been
rejected, as it has been in Article 2179 of the Civil Code.
With the courts decision in the case of Tiu vs. Arriesgado(2004), one would have
thought that it has seen the last of the doctrine of last clear chance. Contrary to
expectation however, the court in the succeeding cases of Lapanday vs. Angala, G.R.
No. 153076, June 21, 2007 and Ngo Sing Sing vs. Li Seng Giap & Sons, Inc., G.R. No.
170596, November 28, 2008, yet again decided in the affirmative with regard to the
applicability of the said doctrine.
In the case of Lapanday vs. Angala (2007) the court ruled thus:
The doctrine of last clear chance states that where both parties are
negligent but the negligent act of one is appreciably later than that of the other,
or where it is impossible to determine whose fault or negligence caused the loss,
the one who had the last clear opportunity to avoid the loss but failed to do so is
chargeable with the loss.
In the said case, the court held the petitioners to be solidarily liable despite the
antecedent negligence of the respondents as the former had the last clear chance to
avoid the collision.
In the case of Ngo Sing Sing vs. Li Seng Giap & Sons, Inc.(2008) on the
otherhand, the court adjudged the supervening negligence of the contractor to have
Page 42 of 48
been the proximate cause of the loss, despite the earlier negligence of the building
owner, ratiocinating as follows:
Under the doctrine of "supervening negligence" which states that where
both parties are negligent but the negligence of one is appreciably later in time
than of the other, or when it is impossible to determine whose fault or negligence
should be attributed to the incident, the one who had the last clear opportunity to
avoid the impending harm and failed to do so is chargeable with the
consequences thereof. Stated differently, the rule would also mean that an
antecedent negligence of a person does not preclude the recovery of damages
for the supervening negligence of or bar a defense against the liability sought by
another, if the latter, who had the last fair chance, could have avoided the
impending harm by the exercise of due diligence.
It may be important to note however that in this case, the court deemed it fit to
reduce the award of damages due to the contributory negligence of the owner. In the
words of the court, this is more keeping in with justice and equity.
Again, we can see in the present case that despite the application of the doctrine
of last clear chance which was originally intended to produce the effect of complete
recovery, the trend now is towards mitigation of the award of damages considering that
the other party has likewise been negligent.
In 2009, in the case of Achevera vs. Ramos, G.R. No. 175172, the court was
given the opportunity to reiterate its long-standing ruling that the doctrine of last clear
chance does not apply where the party charged is required to act instantaneously, and
the injury cannot be avoided by the application of all means at hand after the peril is or
should have been discovered.
Likewise, in the case of Philippine National Railways Corporation vs. Vizcara,
G.R. No. 190022, February 15, 2012, the court reiterated its ruling that the doctrine also
Page 43 of 48
does not apply in cases where there has been no corresponding negligence on the part
of the other party. For the principle to apply, both parties must have been guilty of
negligence at one point in time and the one who had the last clear chance to avoid the
impending harm is adjudged to be liable despite the antecedent negligence of the other.
The most recent decided case regarding the doctrine of last clear chance is the
case of Allied Banking Corporation vs. Bank of the Philippine Islands, G.R. No. 188363,
February 27, 2013. In this case, the court again deemed it fit to apportion the losses
between the two negligent banks despite ruling that the doctrine of last clear chance
applies.
From the foregoing decisions of the Supreme Court, we can see the growing
trend of the courts in using the doctrine of last clear chance as a yardstick in
determining the culpable party, but at the same time employing the provisions of the civil
code which tends to mitigate the liability of the culpable party due to the antecedent
contributory negligence of the other.
Whether or not the courts would continue to run in this direction, that we do not
know, but so far from the cases that weve read rendering applicable or inapplicable the
doctrine of last clear chance, this constant fact remains, whether the courts decide to
employ it or not, or award complete or mitigate the damages, these are all done,
pursuant to the goal of giving everyone his due and in keeping with justice and equity.
Page 44 of 48
CORRESPONDENCE:
Practitioners own take on the
continued applicability of the
Doctrine of Last Clear Chance
The proponents of this study were able to inquire into the opinions of various
lawyers in Davao City to determine whether the Doctrine of Last Clear Chance is still
utilized in actual practice.
According to Atty. Jennifer Altamera Menor of the Public Attorney's Office, she
still recognizes the applicability of the Doctrine of Last Clear Chance as a defense
especially in Reckless Imprudence cases. She emphasized the importance of the said
doctrine to exempt the party from being liable as against the one who had the
opportunity to avoid the injury.
Atty. Aiza Mae Kanda of Alikan Law Office on the other hand opined that the
Doctrine of Last Clear Chance is no longer applicable because of the landmark case of
Tiu vs. Arriesgado which overruled the said Doctrine. She also stated that she no longer
uses the doctrine in her pleadings and instead she cites the Civil Code provision on
contributory negligence as a mitigating circumstance instead.
Atty. Caesar Europa of EDC Law Office explained that for purposes of equity, the
Doctrine of Last Clear Chance was introduced and brought into Philippine
Jurisprudence in the case of Picart vs. Smith to allow the plaintiff to claim damages on
account of the negligence of the defendant who had the last opportunity to prevent the
occurrence causing damages to both parties. Afterwards, he pointed out the several
recent rulings of the Supreme Court which he thought was odd because in one of those
cases decided in 2013, the Supreme Court while applying the Doctrine of Last Clear
Chance, also referred to contributory negligence which mitigated the liability of the
plaintiff due to the subsequent negligence of the defendant.
Page 45 of 48
Atty. Clipton Solamo, who also works for EDC Law, shared that the Doctrine still
applies and would entitle the plaintiff full recovery against the defendant despite the
latter's appreciable negligence in the occurrence.
Meanwhile, Atty. Percy Donalvo and Atty. Paul Vincent Montejo share a similar
opinion regarding the continued applicability of the doctrine of last clear chance in
Philippine Jurisprudence. Atty. Percy Donalvo for his part said that the doctrine of last
clear chance still stands for two reasons: Firstly, the doctrine of last clear chance still
applies because the existence of the civil code provision covering contributory
negligence does not render the doctrine obsolete. Secondly, the doctrine of last clear
chance and the Civil Code provisions regarding contributory negligence are not
inconsistent with each other. Further, according to him, applying the doctrine of
contributory negligence is useful to determine whose negligence was the proximate
cause of the damage, while in the doctrine of last clear chance, it is not apparent whose
negligence was proximate or not.
Atty. Vincent Paul Montejos take on the matter is that, the Doctrine of last clear
chance is still useful in determining who should be the liable party, but as to the extent
of the liability, the civil code provision should apply because as in his own words one
should not be allowed to fully recover because he also is, in the first place, negligent.
These opinions seem to show that there are varied views as to the applicability of
the Doctrine of Last Clear Chance.
Page 46 of 48
THE STAND
In conclusion despite the occasional mention of the Doctrine of Last Clear
Chance in several cases decided by our Supreme Court the same has been abandoned
impliedly.
The said doctrine finds its roots as a humanitarian countermeasure for the
Doctrine of Contributory negligence, which as discussed, would effectively bar a
claimant from recovery by reason of his/her negligence which occasioned the incident
upon which his cause of action is grounded. Volenti non fit injuria or to a willing person,
injury is not done.
The Doctrine of Last Clear Chance applies in a situation wherein the defendant
had reasonable time and opportunity, being aware of the perilous circumstances, to
react and avoid the incident but fails to do so. In such a case the claimant is allowed to
recover notwithstanding negligence on his part.
It is submitted that upon the adoption in our jurisdiction, by way of jurisprudence,
of the Doctrine of Comparative Negligence which apportions liability among the parties
depending on their respective non-exercise of due diligence, the Doctrine of Last Clear
Chance had lost its legal significance. Strictly speaking, the rationale behind its adoption
being inexistent there is no need for its continued application. This position is further
supported by the enactment of the Civil Code which cemented into law our espousal of
the Doctrine of Comparative Negligence through Article 2179.
For arguments sake, and on the basis of the opinions voiced out by our very own
legal practitioners in Davao City, the Doctrine of Last Clear chance finds sanctuary in
present-day legal practice as a tool for determining which partys negligence is the
proximate cause of the injury. Upon such determination and a finding that the claimant
is likewise negligent, the liability of the party more negligent is mitigated in a fashion the
Page 47 of 48
court sees proper. This is far cry from the essence upon which the doctrine was actually
conceived.
Thus, going back to the question raised in the scenario earlier, had Smaug been
sued by the dwarves within Philippine jurisdiction, his liability would be mitigated
through the application of Article 2179; the fact being as it is that the dwarves had it
coming for amassing so much wealth while being charged with the knowledge that it
may attract a nearby dragon. Smaugs liabilities should be fittingly mitigated taking into
consideration that the dwarvers were partly negligent.
Page 48 of 48

CONUNDRUM: The Doctrine of Last Clear Chance

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CONUNDRUM: The Doctrine of Last Clear Chance

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CONUNDRUM: The Doctrine of Last Clear Chance

TRACING THE ROOTS OF A LONG-STANDING DOCTRINE........................................5

FOREIGN JURISDICTIONS PERSPECTIVE ON THE DOCTRINE OF LAST CLEAR

Plaintiffs and Defendants.......................................................................................................12

The shift to Comparative Negligence and Apportionment Laws.............................................15

Should the Last Clear Chance Doctrine be Abolished?..........................................................17

CHRONICLE OF THE DOCTRINE IN PHILIPPINE JURISPRUDENCE........................20

Mitigation, Not an Absolute Bar to Recovery..........................................................................20

Application of the Doctrine of Last Clear Chance...................................................................23

Limited Application in Collisions at Sea..................................................................................24

Full Liability against the Party at Fault....................................................................................25

Early Application of the Doctrine of Contributory Negligence in Relation to Master and

Early Application of the Doctrine of Contributory Negligence in the Area of Banking.............29

Recognizance of the Doctrine of Last Clear Chance..............................................................30

Subsequent Rejection of the Application of the Doctrine of Last Clear Chance.....................33

Recent Jurisprudence to Shed Light on the Doctrine.............................................................34

CORRESPONDENCE: Practitioners own take on the continued applicability of the

to triumph against evil. Simple enough.

legal consequences in real life.

And if so, to what extent is their entitlement?

reason to brand dragons as wicked.

possibility of crossing paths with one. In conclusion, the dwarves conduct of

unnecessarily stockpiling extravagant amounts of gold, which eventually lead to their

exercised ordinary diligence by keeping the volume of the gold in check.

cause of the countless deaths was dragon fire.

an action for damages initiated by the latter prosper?

To come up with a sound answer that is supported by prevailing law and

jurisprudence to this otherwise illusory legal predicament, it is important to understand

Doctrine of Contributory Negligence in relation to the Doctrine of Last Clear Chance.

different jurisdictions without a resulting standardized solution.

they are capable of reconciliation.

This paper is aimed in presenting a short statutory and jurisprudential history of

coming up with our conclusion.

TRACING THE ROOTS OF A

or does it not. Jurisprudence obliged us to listen to their arguments and we argued on

the wavering rulings.

case of Picart vs. Smith (37 Phil 809.)

The rule before in Anglo-American law regarding contributory negligence is an

because otherwise, in case of a finding of negligence on both, theres a chance that

they came up with a different principle, a different doctrine as a measure to counteract

this doctrine of last clear chance.

The doctrine of last clear chance, otherwise known as the doctrine of

doctrine of proximate cause with particular reference to the question of a plaintiffs

automobile. The incident happened in Carlatan Bridge, in San Fernando La Union.

against the threatened harm.1

1 Picart vs. Smith (37 Phil 809)

clear chance in this jurisdiction in Picart vs. Smith.

negligence is not an absolute bar to recovery but only mitigates damages.

the plaintiff because of the defendants negligent conduct.

However, a plaintiffs negligence, if contributing to harm resulting from the

defendants negligent conduct is a complete bar to recovery. This concept in law is

otherwise known in English jurisprudence as the principle of Butterfield v. Forrester.

defense against negligence.3

Other references would point to Cruden v. Fentham4, cited in the case of

be in favor of Forrester. The jury rendered a verdict in favor of Forrester, a decision

which was maintained despite Butterfields appeal.

TRANSITIONAL DOCTRINE7, he said: They could be accounted for quite readily in

Transitioning from a question of whose liability to an inquiry as to whose act was

later than that of the plaintiff, recovery may be had.

negligence bar is called the Last Clear Chance Doctrine.

Court of Australia discussed a number of qualifications to the defendants defense of

reasonable man would have availed himself, of avoiding mischief. 8

The doctrine refers to negligence after negligence. 10