Contributory Negligence

When the plaintiff by his own lack of care contributes to the damage caused by the negligence or wrongful conduct of the defendant, he is considered to be guilty of contributory negligence.

Relevant Case Laws:

Here are some relevant case laws with respect to Contributory Negligence:

1. Davies v. Swan Motor Co. Ltd. (1949) – In this case, an employee of Swansea Corporation, in contravention of the regulations, was riding on the steps attached to the offside of the dust lorry. There was a collision when an omnibus tried to overtake the dust lorry. In consequence, the employee standing on the steps of the lorry was hit, seriously injured and ultimately died. It was held that although there was negligence on the part of the driver of the omnibus, there was also contributory negligence on the part of the deceased.

1. Sushma Mitra v. Madhya Pradesh State Road Transport Corporation (1974) – In this case, the plaintiff was travelling in a bus resting her elbow on a window sill. The bus at that time was moving on a highway. She was injured when hit by a truck which was coming from the opposite direction. When sued for the injury, the defendant took the plea that the act of resting elbow on a window sill was an act of contributory negligence. The Madhya Pradesh High Court did not allow this defence. It was held that she acted like a reasonable passenger while the bus was moving on the highway, she was entitled to claim compensation.

The Last Opportunity Rule

According to this rule, if two persons are negligent, then one of them who had the later opportunity of avoiding the accident by taking reasonable 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.

Relevant Case Law:

Here is a relevant case law with respect to the last opportunity rule:

1. Davies v. Mann (1882) – In this case, the plaintiff fettered the forefeet of his donkey and left it on a narrow highway. The defendant was driving his wagon driven by 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 because the defendant had the ‘last opportunity’ to avoid the accident.

Rules to determine Contributory Negligence:

The Contributory Negligence Act prescribes the rule when there is contributory negligence on the part of the plaintiff. Whether there is contributory negligence or not has to be determined by the following rules:

1. 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.

Relevant Case Law:

Here is a relevant case law with respect to rule number one:

1. Bhagwat Sarup v. Himalaya Gas Co. (1985) – In this case, the defendant company sent its deliveryman to deliver the replacement of a gas cylinder to the plaintiff at his residence. The cap of the cylinder was defective. The deliveryman obtained an axe from the plaintiff for opening the cylinder and hammered the axe with the cap. The gas leaked from there and caused fire resulting in the death of the plaintiff’s daughter, injuries to some other family members and damage to his property. It was held that there was sole negligence of the deliveryman. It was also observed that the mere fact that the plaintiff gave an axe/hammer to the deliveryman on asking did not imply contributory negligence on the part of the plaintiff, because the plaintiff was a layman but the deliveryman was a trained person and was supposed to know the implications of the act being done by him.

2. 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 plaintiff’s negligence is not the operative cause of accident, the defence of contributory negligence cannot be pleaded.

Relevant Case Law:

Here is a relevant case law with respect to rule number two:

1. Agya Kaur v. Pepsu Road Transport Corporation (1980) – In this case, an overloaded rickshaw with three adults and a child on it, while being driven on the correct side of the road, was hit by a bus being driven at a high speed and also coming on the wrong side. It was held that there was negligence on the part of the bus driver only, and in spite of the fact that the rickshaw was overloaded, there was no contributory negligence on the part of the rickshaw driver, as the fact of overloading of the rickshaw did not contribute to the occurrence of the accident.

Doctrine of Alternative Danger

Although the plaintiff is supposed to be careful in spite of the defendant’s negligence, there may be certain circumstances when the plaintiff is justified in taking some risk where some dangerous situation has been created by the defendant. The plaintiff might become perplexed or nervous by a dangerous situation created by the defendant and to save his person or property, sometime to save a third party from such danger, he may take an alternative risk. The law, therefore, permits 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.

Relevant Case Laws:

Here are relevant case laws with respect to the doctrine of alternative danger:

1. Jones v. Boyce (1816) – In this case, the plaintiff was a passenger in the defendant’s coach and the coach was driven so negligently that the plaintiff was alarmed. With a view to save himself from the danger created by the defendant, he jumped off the coach and broke his leg. If the plaintiff had remained in his seat, he would not have suffered much harm because the coach was soon after stopped. It was held that the plaintiff had acted reasonably under the circumstances and he was entitled to recover.

1. Shyam Sunder v. State of Rajasthan (1974) – In this case, due to the negligence on the part of the defendants, the State of Rajasthan, a truck belonging to them caught fire hardly after it had covered a distance of only four miles on a particular day. One of the occupants, Naveentlal, jumped out to save himself from the fire, he struck against a stone lying by the road side and died instantaneously. The defendants were held liable for the same.

The plaintiff is not only justified in taking risk for himself, he may take risk for others as well.

1. Brandon v. Osborne, Gerret and Co. (1924) – In this case, the plaintiff and her husband were in the defendant’s shop. A broken piece of glass came from the skylight and the plaintiff tried to pull her husband away from that. While doing so, she strained and injured her leg. It was held that she was entitled to recover from the defendants for their negligence even though she herself was not in danger. Her act was instinctive and reasonable.

Composite Negligence

When the negligence of two or more persons result in the same damage, there is said to be “Composite Negligence”, and the persons responsible for causing such damage are known as “Composite Tortfeasors”.

Relevant Case Law:

Here are some relevant case laws with respect to composite negligence:

1. Karnataka State Road Transport Corporation v. Krishnan (1981) – In this case, two passenger buses brushed each other in such a way that the left hands of two passengers travelling in one of these buses were cut off below the shoulder joint. It was held that “the present cases are clearly cases of composite negligence. Hence, both the drivers are jointly and severally liable to pay the compensation.

1. Prayagdatta v. Mahendra Singh (1996) – In this case, there was an accident between a bus and a motorcycle, resulting in the death of the pillion rider on the motorcycle. The bus driver and the motor cyclist were equally negligent, and an action was brought for composite negligence against both of them. During the trial, the motor cyclist died and his legal representatives were not impleaded. It was held that in such a case, the owner and the driver of the bus could be made liable only for their 50% share of liability.

Difference between Contributory Negligence and Composite Negligence: