DR.

RAM MANOHAR LOHIYA,

NATIONAL LAW UNIVERSITY,

LUCKNOW

2016-17

FINAL DRAFT LAW OF TORTS

TOPIC- CONTRIBUTORY NEGLIGENCE

CLASS: B.A., LL.B (HONS), 2nd SEMESTER

SUBMITTED TO: SUBMITTED BY:

Ms. ANKITA YADAV ANUSHTHAN TRIPATHI

ASSISSTANT PROFESSOR ROLL NO.41

SECTION. A

ENROLLMENT NO. 160101040

 ACKNOWLEDGMENT

First of all, I would like to thank my teacher of the subject tort, Ms. Ankita yadav, for

providing every bit of help and also showing the way in which to proceed and how to go

about the project. I would also like to thank my parents, friends and others who helped me

immensely at every step and gave every possible bit of help that I needed in preparing the

project and making it look presentable in a good way. I would also like to thank the library

staff of RMLNLU who provided me with books that I needed in making and preparing the

project and other pieces of information and help that was required. At last I would like to

sincerely thank God who gave me the much needed strength and power to go ahead with the

project and make it in a presentable way.

Anushthan
TABLE OF CONTENTS

1) INTRODUCTION .......04

2) GENERAL PRINCIPLES...05

3) LAST OPPORTUNITY RULE...............06

4) CONTRIBUTORY NEGLIGENCE OF CHILDREN..... 0 9

5) CONCLUSION.....11

6) BIBLIOGRAPHY.12
Introduction

Etymological Meaning-

The negligence of a person which, while not being the primary cause of a tort, nevertheless
combined with the act or omission of the primary defendant to cause the tort, and without
which the tort would not have occurred.

Contributory negligence is a common law defense to a claim based on

negligence, an action in tort. It applies to cases where a plaintiff has, through his own
negligence, contributed to the harm he suffered. For example, a pedestrian crosses a road
negligently and is hit by a driver who was driving negligently.

Contributory negligence differs from contribution, which is a claim brought by one tortfeasor
against another to recover some or all of the money damages awarded to the plaintiff.
GENERAL PRINCIPLES

In trying claim arising out of death or injury caused by negligence, the court may be faced
with a situation where both the parties were negligent in some respect. The court is then to
decide as to whose negligence caused the death or injury. There are three possible answers to
such an query depending upon the circumstances of the case.

I. The defendants negligence alone caused the death or injury.

II. The deceaseds or the plaintiffs negligence was solely responsible the death or injury.
III. The negligence of both the parties caused the death or injury.

It is obvious that if the finding is that the defendants negligence alone caused the the death
or injury, then the plaintiff would succeed even if the plaintiff or the deceased was negligent
in some respect. Similarly, if there is no difficulty in holding that the plaintiff will fail if the
deceaseds or his negligence was solely responsible for the death or injury, as the case maybe
even if defendant was in some respect was negligent. In the third case, where the negligence
of both the parties caused the death or injury, the common law rule was that the plaintiff was
to fail even if the defendant was more at fault. In other words, if the deceaseds negligence
contributed in some degree to the death or injury, the defendant succeeded by pleading
contributory negligence irrespective of the fact that death or injury was largely caused by the
defendants negligence. The defence of contributory negligence means that the defendant or
the plaintiff failed to take the reasonable care of his own safety which was a material
contributory to his death or injury.1As the defence enabled the defendant to escape
completely even when he was more at fault, the courts were slow to infer that the negligence
of the plaintiff was a contributory factor.

1
Municipal Corporation of Greater Bombay v Laxman Iyer,(2003) 8 SCC 731, p. 737.
THE LAST OPPORTUNITY RULE

The Courts devised the Last Opportunity Rule which meant that if the defendant had the last

opportunity to avoid the accident resulting in injury he was held solely responsible for the

injury in spite of the fact that the plaintiff was also negligent. 2This rule was further extended

to cover cases of constructive last opportunity.3 A more rational approach was made in cases

involving maritime collisions where the courts had the opportunity apportioning the damages

under the Maritime Conventions Act, 1911. In Admiralty Commissioners v. S.S volute4 a

collision had occurred between merchant ship volute and the destroyer Radstock.

The volute was at fault in changing her course without giving any proper signal and the
Radstock was at fault in increasing speed although she had the knowledge of the danger
caused by the change of course of Volute. It was held that both the ships were responsible
for the collision even though the last opportunity for avoiding the accident was with the
Radstock. The decision in the case of Volute was followed by the HOUSE OF LORDS in a non-
maritime collision case and was regarded as one of general application.5 In this case a
crossroad collision between car and a motorcycle was occurred. Who was negligent in this
action was not clear. The HOUSE OF LORDS held that that it was a sufficient direction. The
defendant in this case while driving the car at about thirty miles an hour along a main road,

2
Davies v. Mann : (1842) 10 M7W 546 : 62 RR 698 is often referred to as the originator of the rule though the
words last opportunity do not occur there. The plaintiff in this case fettered the forefeet of his donkey and
turned it into a narrow lane. It was run over by a heavy wagon not properly looked after longing to the
defendant. The wagon was going a little too fast and was not properly looked after by the driver. In suit for
damages, the plaintiff succeeded as the defendant by using ordinary care could have avoided the accident
even though the plaintiff was also at fault in turning the donkey into the lane with its forefeet fettered.
3
British Columbia Electric Ry. V. Loach (1916) 1 AC 719
4
(1922) 1 AC 129:38 TLR 255:126 LT 425:66 SJ 156 (HL). The Maritime Conventions Act, 1911, applies to India.
Under this act where by the fault of two or more vessels, damage or loss is caused to one or more of them, to
their cargoes, or freight or to any property on board, the liability to make good the damage or loss shall be in
proportion to the degree in which each vessel was in fault, the liability shall be apportioned equally. Where
loss of life or personal injuries are suffered by any person on board of a vessel owing to the fault of that vessel
and any other vessels or vessel, the liability of the owner of the vessels shall be joint and several subject to any
defence which could have been pleaded to an action for the death or personal injury inflicted.

5
American Main Line Ltd. V. Afrika, AIR 1937 PC 168
approached a point in the road without keeping a proper look out or slowing down where it
was crossed by a side road, when a man driving a motorcycle came into the road into the
side road without warning and a collision occurred in which the motor cyclist was killed. In a
suit for the the damages filed by the widow of the deceased, the defendant was not held
liable under the common rule as the deceased was also negligent. The case lays down that
where the negligence of parties is contemporaneous as so nearly contemporaneous as to
make it impossible to say that either could have avoided the consequences of others
negligence, it would be said that negligence of both contributed to the accident. Had it been
a case of maritime collision the court could have apportioned the damages as in case of
Volute. But the question of contributory negligence has all cases to be decided on same
principles.

The common law rule is that if the plaintiffs or the deceaseds (in case of death) negligence
contributed in some degree to the injury or death, the action failed, was illogical and its origin
lay possibly in procedural and pleading anomalies of the common law.6The Madhya Pradesh
case of Vidya Devi contains an elaborate discussion why the principle of English Act should
be followed in India even though there is no corresponding act in India. The Supreme Court
without any reference to the English act, has held that it is now well settled that in case of
contributory negligence, courts have the power to apportion the loss between the parties as
seems just and equitable.

In Municipal corporation grater Bombay v. Laxman Iyer 7, the deceased who

was riding a bicycle came from the left side and took right turn contrary to traffic regulations.
At that time he was hit by corporation bus which was running at a moderate speed and the
deceased was visible from a distance of 30 feet. It was found that the deceased was negligent
in taking a wrong turn contrary to traffic regulations and the bus driver was negligent in not
stopping the bus by quickly applying the brakes and in omitting to blow the horn. The
deceaseds negligence was held to have 25% contributed to the damage and the compensation
was reduced to that extent.

6
LORD WRIGHT, 13 Modern Law Review 5; Vidyadevi v. M.P. State Road Transport Corporation,1974 ACJ 374
(MP) 89
7
(2003) 8 SCC 731
 The act applies when the plaintiffs act contributes to the the damage and not
necessarily to the accident which results in damage although in most of the cases it would be
so. Thus the damage would be reduced if a motorcyclist involved in an accident and suffering
a head injury did not wear a crash helmet.8 It may be noticed that a omission to wear a helmet
is not negligence contributing to the accident but only to the damage suffered in the accident.
This example also illustrates that for being responsible for contributory negligence the
plaintiff need not be in breach of duty to the defendant. The question simply is whether the
plaintiff or the deceased had failed to take reasonable care of his own safety which had
contributed to the damage.9 As observed by BALAKRISHNAN, J. Negligence ordinarily
means breach of a legal duty to care, but when used in expression contributory negligence it
does not mean breach of any duty. It only means the failure by a person to use reasonable
care for the safety of himself or his property, so that he becomes the author of his own
wrong

8
Oconell v. Jackson, (1972) 1 QB 270 : (1971) 3 A11 ER 129; (Damages were reduces by fifteen percent)
9
Sushma Mitra v. M.P. State Road Transport Corporation, 1974 ACJ 87 (MP) pp, 92, 95
CONTRIBUTORY NEGLIGENCE OF CHILDREN

The rule as to contributory negligence is not inflexibly applied in cases where young children

are concerned. Allowance is made for their inexperience and infirmity of judgement. 10 The

correct principle is that the children do not form a separate category either for deciding

whether the defendant any duty to the child plaintiff and was guilty of negligence being in

breach of that duty, or for deciding whether the child plaintiff was guilty of negligence, but in

deciding both these questions, the age of the child plaintiff and the experience and the

intelligence of ordinary children of that age are to be taken into account with other relevant

information. The madras High Court had held that the children capable of discrimination and

perceiving danger can be guilty of contributory negligence. In this case a girl of seven years

was knocked down by an engine while she was crossing the railway track after passing

through a wicket gate. It was held that the proximate cause of the accident was the negligence

of the girl as she was old enough in apportioning the danger.11 But a child of six, standing

near a footpath when knocked down by a lorry12 and the child of same age when knocked

down by a motor vehicle while trying to cross a road13 will not be held guilty of contributory

negligence for the children of that age do not have adequate road sense. Similarly, a child of

four years was not held guilty of contributory negligence in accepting a ride on motor cycle

driven by his uncle with another person sitting on pillion.14

By an untrue statement a boy aged nine years who was accompanied by his brother

aged seven, prevailed on an employee of the defendant company to sell him a small quantity

of petrol. The children wanted the petrol for use in a game in which they enacted a Red

Indian scene they had witnessed a cinematograph theatre. In the result, the boy was seriously
10
Lynch v. Nurdin, (1841) 1 QB 29 : 5 Jur 797 : 55 RR 191
11
M. & S.M. Railway company ltd. V. Jayammal,(1942) ILR 48 MAD 417
12
R. Srinivasa v. K.M Parsivamurthy, AIR 1976 Karnataka 92.
13
Motias Costa v. Roque Augustihno jacinto
14
M.P. State Road transport corporation v. Abdul Rahman, Supra
burned. It was held that a Privy Council that the defendants having an explosive substance to

a boy who had limited knowledge of the likelihood of an explosion and its possible effect,

and the boy having done that which a child of his age might be expected to do, the defendants

could not avail themselves of the defence of contributory negligence, that the employees

negligence contributed to cause injuries suffered by the boy and that they were liable.15

15
Yachuk v. Oliver Blais, (1949) AC 386 : (1949) 2 A11 ER 150 : 65 TLR 300
CONCLUSION

Thus, contributory negligence is a good defence available with the defendant wherein, he can

show some negligence on part of the plaintiff and this helps a lot to the defendant as the

amount of compensation to be paid is reduced to great extent or even becomes nil. Where

"contributory negligence" principles are applied, if the plaintiff in any way contributed to his

or her own injury, the plaintiff is barred from recovering damages. The extreme consequence

of this approach has led to its being limited or abandoned in many jurisdictions.

Since, this defense was utilized by the defendants in all the cases of negligence,

the last opportunity rule was brought in place wherein whoever among the defendant and the

plaintiff had the last opportunity to prevent the accident from happening was held liable.
BIBLIOGRAPHY

Lal, Ratan and Jatan.The Law of Torts. Wadhwa and Company : Nagpur 2006.