CONTRIBUTORY NEGLIGENCE
In certain circumstances, a
person who has suffered an injury will not be able to get the damages from the
another for the reason that his own negligence has contributed to his injury.
Every person is expected to take the reasonable care of himself. If everyone
fails to take that reasonable care of himself, that is, is negligent as regards
to himself, and in the consequence of that, suffers an injury, he will not be
permitted to recover the damages from another, even though the latter was also
negligent in the certain aspects to some extent.
When the plaintiff by his own
want of care contributes to the damage caused by the negligence or wrongful
conduct of the defendant, he is considered to be guilty of the contributory
negligence. The burden of proving the plaintiff’s negligence lies on the
defendant. An accident would be said to be the result of contributory
negligence, if the proximate cause of the accident is the act or omission
amounting to the want of ordinary care or in the defiance of the duty or obligation
on the part of the plaintiff has conjoined with the defendant’s negligence.
The rule of contributory
negligence is invariably raised as a defence in the actions brought by the
injured persons against the wrong doers and in very many cases the plaintiffs
were able to get over this defence by proving that despite their initial
negligence the defendants had the last opportunity of avoiding the accident and
thus they should not be held liable for the plaintiff’s injury.
Major case law:
Municipal Corpn. Of Greater
Bombay vs. Laxman Iyer:
In the above mentioned case, the
Supreme Court observed that, when an accident is due to the negligence of both
the parties, substantially there would be contributory negligence and both
would be blamed. In case of contributory negligence, a crucial question on
which liability depends would be whether either party could by exercise of
reasonable care, have avoided the consequence of the other’s negligence.
Whichever party could have avoided the consequence of the other’s negligence
would be liable for the accident. The contributory negligence is applicable
solely to the conduct of a plaintiff. This is a defence in which the defendant
has to prove that the plaintiff failed to take the reasonable care of his own
safety and that was a contributing factor to the harm ultimately suffered by
the plaintiff.
Rural Transport Service vs.
Bezlum Bibi:-
In the above mentioned case, the
facts are as follows, the conductor of an overcrowded bus invited the
passengers to travel on the roof of the bus. The driver ignored the fact that
there were the passengers on the roof and tired to overtake a cart. As he
swerved the bus on the right for the purpose and went on the kucha road, a
passenger sitting on the roof was hit by the branch of a tree, he fell down,
and received severe injuries and then subsequently died. It had been held that,
both the driver and the conductor were negligent towards the passengers, who
were invited t sit on the roof. There was also contributory negligence on the
part of the passengers including the one deceased, who took the risk of
travelling on the roof of the bus.
Yoginder Paul Chowdhary vs.
Durgadas:-
In the above mentioned case, it
had been held by the Delhi High Court that, a pedestrian who tries to cross a
road all of a sudden and is hit by a moving vehicle, he is guilty of
contributory negligence.
The Rule of Contributory
Negligence:
The rule of contributory
negligence ultimately ask the question – ‘Who caused the accident?’
1. If
it were the defendant, the plaintiff can recover the damages in spite of his
own negligence.
2. If
it were the plaintiff, he cannot recover the damages in spite of the
defendant’s negligence.
3. If
it were both the parties, that is, the plaintiff and the defendant, the
plaintiff cannot recover the damages.
The law imposes on a plaintiff
the obligation to take all the reasonable steps to mitigate the evil, it also
debars him from claiming any part of the damage which was caused due to his own
neglect or lapses.
Different types of
Negligence:
1. Composite
Negligence:-
The Composite negligence would
arise when a negligent act or omission of 2 or more persons have caused the
damage to a third party. In such a case, the said third person does not
contribute to the mishap or to the damage and as such, he is entitled to sue
all or any one of the negligent person for the damages.
2. Contributory
Negligence:-
The contributory negligence
implies that the person who has suffered the damage is also guilty of some
negligence and that has contributed towards the damage.
3. Statutory
Negligence:-
The statutory negligence implies
that when the negligence is a breach of the duty to take the care imposed by a
statute or the law it may be called the statutory negligence, and when it is
the breach of the duty to take care arising out of the circumstances of a
particular case, it may be termed as an actionable negligence. In short, a
neglect of the statutory obligation is termed as the statutory negligence.
Basic theories of the
Contributory Negligence
Various theories have been
advanced by the jurists as to the basic principle of the contributory
negligence. Some of the important theories and their criticisms are as follows:
a. Penal
theory:-
Under the penal theory, a person
who has once been negligent should be punished severely for his fault and
should not be permitted to recover the damages. In pari delict
potior est condition defendentis means that where both parties are
equally at fault, the condition of the defendant is the best. But this theory
of the punishment did not hold good in very many cases where the plaintiff was
able to recover the damages in spite of his own contributory negligence. The
plaintiff in that case was able to recover the damages, in spite of his own
initial negligence, for the reason that the decisive cause of the accident was
not his act of negligence but that of the defendant.
b.Public
policy:-
In order to induce the self
vigilance amongst the members of the public and thereby minimise the accidents
on the highway, courts were inclined to give the stress to this principle of
the contributory negligence. But in the actual decision of the cases only very
few judges have laid down this as the reason for making a party liable,
although a few have referred to this aspect along with the others.
c. Volenti
non fit injuria:-
The theory of the plaintiff’s
implied or express consent to undergo the injury is also sometimes advanced as
the probable basic principle of the contributory negligence. But this cannot be
a true basis for there are essential differences between the two defences. The
defence of the contributory negligence confesses and avoids a prima facie
liability; it excludes the idea of deliberation and relies up on the failure of
the plaintiff to exercise reasonable care. On the defence of volenti non fit
injuria, viz., that the plaintiff has willed to run the risk, none of these
statements is true.
d.Causation:-
Of all the theories mentioned
above, the causation theory seems to be the most probable basic principle of
the contributory negligence. In very many cases Judges have somewhat loosely
used the expressions ‘direct cause’, ‘immediate cause’, ‘the decisive cause’,
‘the proximate cause, or the real cause, the dominant cause, the efficient
cause or the effective cause’, or ‘the common sense cause’, or ‘the causa causans’
as opposed to causa sine qua non.
Major case laws includes:-
Butterfield vs. Forrester:
In the above mentioned case, the
facts area as follows, ‘A’ wrongfully obstructed a road by placing a pole
across the road. ‘B’ came along the road towards evening riding his horse at
such an excessive speed that he was overthrown due to the pole and got injured.
There was sufficient day light to see the obstruction at a distance of 100
yards. In the action that was brought by ‘B’, the injured, claiming the damages
against ‘A’, it was held that the latter was not liable; for despite ‘A’s
negligence ‘B’ could have avoided the accident by taking due care of himself.
Hence it was held that if he had used the ordinary care he must have seen the
obstruction, so that the accident appeared to happen entirely from his own
fault.
Radley vs. L and N W Rly:
In the above mentioned case, the
facts are as follows, the servants of the plaintiff had negligently piled one
coal truck on the top of the other. The defendant’s engine driver was shunting
a long line of the trucks on the siding beneath a bridge. He felt some
resistance when the upper truck came into the contact with the bridge. But
instead of ascertaining the nature of the obstruction, he increased the engine
power with the result that the bridge was seriously damaged. The House of the
Lords held that if the engine driver knew that a dangerous situation existed
even though he was not aware of the precise facts, then he had the last
opportunity of avoiding the accident.
British Columbia Electric Rly vs.
Loach:
In the above mentioned case, the
facts were as follows, one Sands was being driven in a wagon by ‘X’ who, by the
negligence of both himself and Sands, got the wagon on the railway company’s
level crossing when the company’s train was approaching the crossing at the
rate of thirty five to forty miles per hour. The engine driver first saw the
wagon when the train was about 4 hundred feet from the crossing. He at once
applied the brakes. If the brakes had been in a good order he would have
stopped the train at a distance of about 3 hundred feet but they were defective
and the train therefore hit and killed Sands whose representative Loach sued
the company for the damages. The company was held liable for they would have
had the last opportunity of avoiding the accident but for their initial
negligence in starting with the defective brakes.
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THE LAST OPPORTUNITY RULE
According to this rule, when 2
persons are negligent, that one of them, who had the later opportunity of
avoiding the accident by taking the 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 negligence of the defendant
does not observe ordinary care; he cannot make the defendant liable for that.
Similarly, if the last opportunity to avoid the accident is with the defendant,
he will be liable for the whole of the loss to the plaintiff.
When an accident happens through
the combined negligence of both the parties, that is, the plaintiff and the
defendant, or any two persons; he alone is liable to the other who had the last
opportunity of avoiding the accident by the reasonable care. But a defendant,
who had not in fact the last opportunity to avoid the accident, will
nevertheless be liable if he would have that opportunity but for his
negligence.
Major case law:
Davies vs. Mann:-
In the above mentioned case, the
facts are as follows; the plaintiff fettered the forefeet of his donkey and
left it on a narrow highway. The defendant was driving his wagon, which was
being driven by the horses too fast that it negligently ran over and killed the
donkey. In spite of his own negligence, the plaintiff was held entitled to
recover the damages because the defendant had the last opportunity to avoid the
accident.
The Bywell Case:-
In the above mentioned case, the
facts are as follows, one ship had by wrong manoeuvres placed the another ship
in extreme danger, it was held that the latter ship would not be held to blame
if she had done something wrong and had not been manoeuvred with perfect skill
and presence of mind and had thus contributed in causing her own damage.
Muthuswami Reddiar vs. Srikar:-
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