1 CONTRIBUTORY NEGLIGENCE

P ROJECT W ORK ON LAW OF

TORTS

CONTRIBUTORY NEGLIGENCE

AMITY LAW SCHOOL, MUMBAI

SUBMITTED TO: S U B M I T T E D B Y:

M r. VA I B H AV S O N WA L E NIDHI DUBEY

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 2 CONTRIBUTORY NEGLIGENCE

ROLL NO:

B.A LLB(Hons.)

st
1 YEAR B.A LLB (2 nd
SEMESTER)

ACKNOWLEDGEMENT

First of all I want to thank GOD for enabling me to

successfully complete this project.

Then I would like to give my sincere thanks to our respected

Law of Torts faculty, Mr. Vaibhav Sonwale, who has guided me all
the way in completing this project.

Then I would like to give thanks to our librarians who have

helped me all the way in searching through the source materials
which help me a lot in completing this project.

The list couldnt be completed without thanking all my friends

who have encouraged me in successful accomplishment of this
project.

NIDHI DUBEY
ROLL NO.

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B.A,L.L.B.(Hons.)

1ST semester

TABLE OF CONTENTS

1) INTRODUCTION .......05

2) GENERAL PRINCIPLES...06

3) LAST OPPORTUNITY RULE...............07

4) CONTRIBUTORY NEGLIGENCE OF CHILDREN..... 1 1

5)CONCLUSION.....13

6)BIBLIOGRAPHY.14

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SUBJECT: Law of Torts.

TOPIC: Contributory Negligence.

OBJECTIVES:

1. To understand the provision related to Contributory Negligence.

2. To analyze the various principles of contributory negligence.

RESEARCH METHODOLOGY: Keeping the objectives in mind, material was

collected with the help of different books and then it was compiled to make the
theoretical part of the project. Recent and important case laws are analyzed.

RESEARCH TOOLS: The research of this project was carried with the help of
the Internet and Library of Amity Law School, Mumbai.

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FOOTNOTING STYLE: In whole of my project uniform footnoting style is

adopted in conformity Amity Law School, Mumbai footnoting style.

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.

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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
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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.

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

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

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

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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, approached a point in the

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

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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.7The Supreme Court without any
reference to the English act, has held that it is now well settled that in case of

6 LORD WRIGHT, 13 Modern Law Review 5; Vidyadevi v. M.P. State Road Transport
Corporation,1974 ACJ 374 (MP) 89

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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 8, 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.

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

7 Vidyadevi v. M.P. State Road Transport Corporation, supra : In this case

there was a collision between a bus and a motorcycle at a road intersection
when the bus was going on the main road and the motorcycle came from a
side road. The person riding the motor cycle was killed. In a claim for
damages by the widow and the children it was found that the bus driver was
negligent in not having a proper look out while approaching the intersection
and the deceased was negligent as he was driving at excessive speed while
coming from the side road to the intersection.It was further held that
negligence of both the parties was liable for the accident but the
motorcyclist was far more to blame than the bus driver. The responsibility
was apportioned in form of two-third and one-third.

8 (2003) 8 SCC 731

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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. 9 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.10 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

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

9 Oconell v. Jackson, (1972) 1 QB 270 : (1971) 3 A11 ER 129; (Damages were

reduces by fifteen percent)

10 Sushma Mitra v. M.P. State Road Transport Corporation, 1974 ACJ 87 (MP) pp, 92,
95

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infirmity of judgement.11 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.12 But a child of six, standing near a footpath

when knocked down by a lorry13 and the child of same age when knocked down by

a motor vehicle while trying to cross a road14 will not be held guilty of contributory

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

11 Lynch v. Nurdin, (1841) 1 QB 29 : 5 Jur 797 : 55 RR 191

12 M. & S.M. Railway company ltd. V. Jayammal,(1942) ILR 48 MAD 417

13 R. Srinivasa v. K.M Parsivamurthy, AIR 1976 Karnataka 92.

14 Motias Costa v. Roque Augustihno jacinto

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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.15

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 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.16

CONCLUSION

15 M.P. State Road transport corporation v. Abdul Rahman, Supra

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

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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

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Lal, Ratan and Jatan.The Law of Torts. Wadhwa and

Company : Nagpur 2006.

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