ROHIT ANANT SAHAY
In Law of Torts, there are many defenses which the defendant can use against the plaintiff when he is sued for some specific torts. Negligence which is one of the most important tort, has mainly 3 defenses -:
• Contributory Negligence
• Volenti non fit inuria
• Ex turpi causa non oritur action
Of these three, I am aiming to discuss in detail about contributory negligence.
When a person by his own want of care contributes to the damage caused by the negligence or the wrongful conduct of the defendant, he is considered to be guilty of Contributory Negligence. “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 either himself or his property, so that he becomes blameworthy in part as an “author of his own wrong”. It is not a complete defence, where the plaintiff’s own fault has contributed to the damages he suffered and the plaintiff will have his/her damages reduced in proportion to his/her fault.
Contributory negligence is a defense to a claim based on negligence. It is applied in cases where the plaintiff by his own negligence or fault has contributed to the harm suffered due to the negligence or wrongful conduct of the defendant. For example, a pedestrian who tries to cross the road all of a sudden and is hit by a moving vehicle, is guilty of contributory negligence. Similarly, if A, going on the wrong side of the road,is hit by a vehicle coming from the opposite direction and driven rashly by B , A can be met with the defence of contributory negligence.
Contributory negligence defers from contribution, which is a claim bought by one tortfeaser against another to recover some or all of the money damages awarded to the plaintiff.
To be guilty of contributory negligence, the plaintiff should not have acted like a prudent man. if he has taken as much care as a prudent man would have taken in a similar situation, there is no contributory negligence.
When the plaintiff is negligent, but his negligence hasn’t contributed to the harm suffered by him, the defence of contributory negligence cannot be pleaded.
RULES TO DETERMINE CONTRIBUTORY NEGLIGENCE:-
The Contributory Negligence Act, 1945 prescribes the rule when there is contributory negligence on the part of the plaintiff. There are 2 rules to determine whether there is contributory negligence or not:-
• Negligence of the plaintiff in relation to the defence of contributory negligence does not have the same meaning as is assigned to it as a tort of negligence. Here the plaintiff need not necessarily owe a duty of care to the other party. What has to be proved is that the plaintiff did not take due care of his own safety and thus contributed to his own damage.
• It is not enough to show that the plaintiff did not take due care of his own safety. It has also to be proved that it is his lack of care which contributed to the resulting damage. If the defendant’s negligence would have caused the same damage even if the plaintiff had been careful and the plaintiff’s negligence is not the operative cause of accident, the defence of contributory negligence can’t be pleaded. For example, the plaintiff is negligent in driving the motor cycle on the road without proper brakes and the defendant aiming at a bird negligently shoots and injures the plaintiff, the plaintiff’s negligence here can’t be considered as contributory negligence for this injury by the defendant.
BURDEN OF PROVING CONTRIBUTORY NEGLIGENCE
The onus of proving the contributory negligence is on defendant and if defendant does not take the plea of contributory negligence then the plaintiff is not bound to prove it. In case of inability of the court to decide the extent of negligence committed by the parties, the defendant is likely to take the benefit.
Example-A is trying to catch a bus, the bus has just started and is gaining speed. A has just taken the hold of handle and is trying to put his foot on foot-board but suddenly he lost hold of the handle. His foot could not take his load as it was not firmly fixed. A fell down and got injured. In this case, A will be held liable for his fall from the bus, as he tried to board a moving bus. It was risky to catch a moving vehicle this way. The footboard would not have affected him, if the bus would not have been in motion, so the bus company would not be held liable.
LAST OPPORTUNITY RULE:-
At common law, contributory negligence on the part of the plaintiff was considered to be a good defence and the plaintiff lost his action. Plaintiff’s own negligence disentitled him to bring any action against the negligent defendant.”The rule of law is that if there is blame causing the accident on both sides, however small that blame may be on one side, the loss lies where it falls”.
This rule worked a great hardship particularly for the plaintiff’s because for a slight negligence on his part, he may lose his action against a defendant whose negligence may have been the main cause of damage to the plaintiff. The courts therefore modified the law relating to contributory negligence by introducing the ‘LAST OPPORTUNITY RULE’. According to this rule, when two persons are negligent, that one of them, who had the later opportunity of avoiding the accident by taking ordinary care, should be liable for the loss. It means that if the defendant is negligent and the plaintiff having a later opportunity to avoid the consequences of the negligent act of the defendant does not observe any ordinary care, he cannot make the defendant liable for that. Similarly, if the last opportunity to avoid the accident was with the defendant, he will be liable for the whole of the loss to the plaintiff. The case of Davies v. Mann explains the rule. In that case, the plaintiff fettered the fore-feet of his donkey and left it in a narrow highway. The defendant was driving his wagon driven by the horses too fast that it negligently ran over and killed the donkey. In spite of his own fault, the plaintiff was held entitled to recover because the defendant had ‘last opportunity’ to avoid the accident.
The application of the ‘last opportunity’ rule was further defined in the case of British Colombia Electric Co.v. Loach and the party who could have the last opportunity to avert the accident, if he had not been negligent, was considered to be responsible for the accident. In other words, the rule was extended to cases of ‘CONSTRUCTIVE LAST OPPORTUNITY’. In that case, the driver of a wagon, in which the deceased was seated, negligently brought the wagon on the level crossing of the defendant’s tramline without trying to see whether any tram was coming on the line. A tram, which was being driven too fast, caused the collision. It was found that the tram which caused the accident was allowed to go on the line with defective brakes and if the brakes were in order then, in spite of the negligence on part of the wagon’s driver, the tram could have been stopped and accident averted. The legal representatives of the deceased brought an action against the tramway company. The defendants pleaded the defence of contributory negligence .It was held that they could not take the defence of contributory negligence because they had the last opportunity to avoid the accident. The defendants were therefore held liable.
CONTRIBUTORY NEGLIGENCE OF CHILDREN:-
What amounts to contributory negligence in the case of a mature person may not be the case of a child because a child cannot be expected to be as careful as a grown up person. Age of a person, therefore, has to be taken into account to ascertain whether a person is guilty of contributory negligence or not. In R.Srinivasa v. K.M.Parasivamurthy, a child of about 6 years was hit by a lorry while standing just near the footpath. It was held that a child of that age doesn’t have the road sense like his elders and, therefore, the plaintiff, cannot be blamed for contributory negligence.
DOCTRINE OF APPORTIONMENT OF DAMAGES IN INDIA:-
LAW REFORM (CONTRIBUTORY NEGLIGENCE) ACT,1945:-
Section1 (1) of the Act provides as follows:
“Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person(s), a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.”
Thus, if in an accident the plaintiff is as much at fault as the defendant, the compensation to which he would otherwise be entitled will be reduced by 50%.
In India, there is no central legislation corresponding to the Law Reform (contributory negligence) Act,1945 of England. The Kerala legislation has taken a lead by passing The Kerala Torts (Miscellaneous provisions) Act, 1976 Sec.8 of the Act makes provision for apportionment of liability in case of contributory negligence.
THE DOCTRINE OF ALTERNATIVE DANGER:-
Although, the plaintiff is supposed to be careful in spite of the negligence of the defendant, the plaintiff might become perplexed or nervous by a dangerous situation created by the defendant and to save his person or property, he may take an alternative risk. The law, therefore allows the plaintiff to encounter an alternative danger to save himself from the danger created by the defendant .If the course adopted by him results in some harm to himself, his action against the defendant will not fail. The judgement of the plaintiff should not, however, be rash. In Shyam Sunder v. State of Rajasthan, due to the negligence of the defendants, the State of Rajasthan, a truck belonging to them caught fire hardly after it had covered a distance of only 4 miles on a particular day. One of the occupants, Navneetlal, jumped out to save himself from the fire, he struck against a stone lying by the roadside and died instantaneously .The defendants were held liable.
“CONTRIBUTORY NEGLIGENCE” AND “VOLENTI NON FIT INJURIA” DISTINGUISHED
1. CONTRIBUTORY NEGLIGENCE is based on the proportion of his fault in the matter. The damages which the plaintiff will be reduced to the extent the claimant himself was to blame for the loss. VOLENTI NON FIT INJURIA is a complete defence in a case of negligence which totally makes the defendant free from the liability. The defendant’s liability in case of
2. In the defence of CONTRIBUTORY NEGLIGENCE, both plaintiff as well as defendant is negligent. In VOLENTI NON FIT INJURIA, the plaintiff may be volens but at the same time exercising due care for his own safety. Moreover, defendant’s negligence may rule out the application of the defence.
Contributory Negligence is a type of defence for the defendant with which he can show some negligence on the part of the plaintiff so that the amount to be paid as compensation is reduced to the extent of the plaintiff’s own negligence. Thus, Contributory Negligence is a good defence for the defendants to use against the plaintiffs in cases related to some specific torts.
Since this defence favoured the defendants in most of the cases, the last opportunity rule was brought in wherein whoever among the defendant and plaintiff had the last opportunity to prevent the accident was held liable.