National Law Institute University,

Bhopal

Law of Torts I

First Trimester
Topic: Plaintiff at Fault and Contributory Negligence

Submitted by: Submitted to:

Kratik Barodiya (Prof.) Dr. Rajiv Khare

Roll No. - 98

Section- B

Session: 2019-2020

Enrollment No. – A-2140

Table of Contents

Certificate………………………………………………………………

Acknowledgement……………………………………………………...

Introduction…………………………………………………………….

Objectives of Study…………………………………………………….

Method of Study………………………………………………………..

Review of Literature……………………………………………………
Acknowledgement

This paper has been possible by the unconditional support of many people. I would like to
acknowledge and extend my heartfelt gratitude to director (DR.) V. Vijaykumar and (Prof.) Dr.
Rajiv Khare for guiding me throughout the development of this paper into a coherent whole by
providing helpful insight and sharing their brilliant expertise. I would also like to thank the
officials of the Gyan Mandir library, NLIU for helping me to find the appropriate research
material for this study. I am deep indebted to my parents, seniors, and friends for all the moral
support and encouragement.
Certificate

This is to certify that this research paper titled “Plaintiff at Fault and Contributory Negligence”
has been prepared and submitted by Kratik Barodiya, who is currently pursuing his B.A.LL.B
(Hons.) at National Law Institute University, Bhopal in fulfillment of Law of Tort-1 course. It is
also certified this is original research report and this paper has not been submitted to any other
University, nor published in any journal.

Date:

Signature of the Student:

Signature of the Research Supervisor:

Introduction:

Plaintiff is the word used to define a party initiating a court action to seek a legal remedy,
whether a civil court lawsuit or a criminal court charges. The defendant is known as the party to
the lawsuit, or the individual charged with a crime. The Plaintiff may refer to the prosecuting
lawyer or the state seeking charges. The Plaintiff is known as the “petitioner” in some cases and
the defendant is known as the “respondent”.
In some jurisdictions, by filing a summons, a claim form or a complaint, a lawsuit is initiated.
These papers are known as Pleadings, which set forth the alleged wrongs committed by the
Defendant with a request of relief. In other jurisdictions, the action is commenced by delivering
these records to the defendant by a system if server, the action is started by serving the legal
process; they are only filed.

A very important concept under Plaintiff is “Plaintiff the wrongdoer” . Plaintiff the wrongdoer’
is based on the principle of “ex turpi causa non ortitur actio”, meaning that, from an immoral
cause no action arises. It implies that if the plaintiff's action is based on an unlawful
agreement/contract, his action will not be successful. In such a case, the plaintiff has no legal
recourse since the harm caused to him was a result of some wrong of his own doing.

Negligence is the breach of duty which is caused by the Omission to do a duty which a
reasonable man/woman, directed by those considerations which is ordinarily regulate the conduct
oh the human affairs would do, or by doing something which an astute and a reasonable man
would not do.

The notion of negligence in Jurisprudence defies any accurate definition. Eminent jurists and
leading judgments have assigned negligence to various meanings. Apex court in Mathew Jacob
V. Punjab State. 1

The definition includes three constituents of negligence: (1) a legal obligation to practice due
care on the part of the party complaining about the party complaining about the behavior of the
former within the scope of the obligation ; (2) infringement of that duty ; and (3) consequential
damage.

1
Law of Torts – By R.K Bangia
One of the Sub parts of Negligence is Contributory Negligence. Contributory negligence is a
defense against a negligence-based claim. If available, the defense totally bars plaintiffs from
any recovery if they contribute through their own negligence or fault to their own injury. An
accident would be considered to be the consequence of contributory negligence if "the proximate
cause of the accident is an act or omission of ordinary care or in defiance of duty or obligation on
the part of the complaining party in conjunction with negligence on the part of the other party."
Because the doctrine of Contributory Negligence can lead to severe outcomes, it has been
abolished by many common law jurisdictions in favor of a "comparative fault" or "comparative
negligence" approach. A comparative negligence method decreases the plaintiff's award of
damages by the proportion of fault assigned to the plaintiff by the fact-finder for his/her injury.

In some jurisdictions, the defendant must demonstrate a plaintiff or plaintiff's negligence in order
to effectively raise a contributory negligence claim. In other cases, a plaintiff has the burden of
proof to disprove his or her negligence. A plaintiff may be prevented from recovering due to an
accident being 1% or more at fault. Historically, the rule in all countries was contributory
negligence, leading to severe results. Contributory negligence legislation has been created and
adopted by many countries.

Introduction to Plaintiff the Wrongdoer:

Plaintiff is the word used to define a party initiating a court action to seek a legal remedy,
whether a civil court lawsuit or a criminal court charges. The defendant is known as the party to
the lawsuit, or the individual charged with a crime. The Plaintiff may refer to the prosecuting
lawyer or the state seeking charges. The Plaintiff is known as the “petitioner” in some cases and
the defendant is known as the “respondent”. The law excuses the defendant when the plaintiff's
own act was either illegal or incorrect. This defense emerges from the Latin maxim "ex turpi
causa non oritur action," meaning that no action arises from an immoral cause. Thus, the
plaintiff's own unlawful act could lead to a legitimate defense in torts. This maxim not only
refers to tort law, but also to contracts, restitution, assets and trusts. Where the maxim is
implemented effectively, it operates on recovery as a full bar. It is often referred to as the defense
of illegal conduct, although it extends to immoral conduct beyond illegal conduct. This defense,
though taken extremely rarely, has long been under discussion. This defense of ex turpi causa
can be strongly linked to the legal maxims "jus ex injuria non oritur," which implies that no right
can result from a mistake and "Commodum Ex Injuria Sua Nemo Habere Debet" implies that a
wrongdoer should not be allowed to take benefit of his conduct by law.

There lies no liability to the defendant when the plaintiff is at fault and there’s no responsibility
of the defendant to pay the damages. If the right of a plaintiff is infringed, he may file a lawsuit
in a court against the defendant. But what if the act of the plaintiff itself is unlawful? How will
the defendant be saved? The ‘plaintiff the wrongdoer is at rescue here.

To understand this more clearly let’s look at this example-

The plaintiff placed electrical cables around his limits to safeguard his property from trespassers.
He didn't placed any notice of the same though. An individual attempts to enter his property and
thus gets wounded because of the electrical wiring. In such a case, the plaintiff's defense of the
wrongdoer may be claimed as the plaintiff has failed to notify the electrical wiring in this case
and to protect his property he used unreasonable approach.

Another example –

A bridge under the defendant's control gives off due to the passage through it, of the overloaded
truck of the plaintiff. There was a warning sign about the bridge's condition. Thus, the plaintiff,
despite understanding the bridge's condition, permitted his overloaded truck to pass it on.

Hence, the action of the plaintiff in the above-mentioned situation was the determining action for
the damage he endured. He would not have caused any injuries if he had taken a normal loaded
-truck. The defendant can claim the defense. But looking this at the other way If the act of the
defendant is the determining cause of the plaintiff's harm, then that defense can not come to his
rescue. Lets take an example of this- The defendant had badly maintained a bridge. The
defendant had badly maintained a bridge. There have been different complaints about it, but to
its impact nothing has been achieved. One day the truck of the plaintiff was passing through the
bridge, which was not loaded, and it happened that the bridge gave away. In this situation,
contrary to the above, the act of the defendant is the determining act of the plaintiff's damage.
The plaintiff can therefore undoubtedly claim damages from the defendant for the injury
caused.by him.

Understanding Contributory Negligence

When the plaintiff contributes to the harm caused by the defendant's negligence or misconduct
by his own lack of care, he is deemed guilty of contributory negligence. An accident would lead
from contributory negligence if "the proximate cause of the accident is the act or omission that is
linked to the negligence of the other party due to want of ordinary care or defiance of duty.

Contributory negligence, in law, behavior contributing to one's own injury or loss and failing to
fulfill the standard of prudence to be observed for one's own good. The plaintiff's contributory
negligence is often accused of negligence in defense.

Historically, the doctrine grew out of the distrust of juries, which in private injury proceedings
were generally more sympathetic to complainants. Also promoted the doctrine was the policy of
not allocating liability between sides to litigation (i.e. charging each with a portion of the blame).

Contributory negligence generally occurs in a lawsuit where a complainant has charged a

defendant with negligence. The defendant may then impose contributory negligence on the
plaintiff. In common law, if the defendant proves this charge by a prevalence of evidence, the
plaintiff can not recover any damages— even if the defendant was negligent— because the
negligence breaches the nexus between defendant’s negligence and plaintiff’s injury or loss. In
English law since the Law Reform (Contributory Negligence) Act (1945) and in many U.S.
states, if the plaintiff is shown to have contributed to the injury, recovery may still be permitted,
but provision is made for a fair reduction of damages. Contributory negligence should be
differentiated from several other concepts that are often used in negligence cases: risk
assumption, which relieves the defendant of a duty of due care towards the plaintiff when the
latter willingly exposes himself to certain risks ; last clear opportunity, which enables the
applicant to recover even if contributorily negligent — if the defendant had the last chance to
avoid the Unfortunate.
In determining whether a person has been contributorily negligent, the following factors
(amongst others) are relevant:

1. The probability that the harm would occur if care was not taken.
2. The probable seriousness of the harm, or the mere knowledge.
3. The burden of taking precautions to avoid the damage.
4. The utility of the risk-creating activity in which the individual is engaged.

Historical Background of Contributory Negligence

The evolution of Contributory Negligence cases has been a long process. The cases relating to
product liability are mostly related to the UK,as it has set a foundation for these cases.

Contributory negligence on the scene of our legal history is a comparatively early comer. Most
authors placed their entry in 1809 with Butterfield v. Forrester's now renowned English case.
This case is also the one where there was no defence for Contributory negligence available. The
doctrine was then received hospitable enough in America2 but in the important state of New
York, for example, it was not until the mid-century (1850) and the rise of industrial enterprise
(especially railraoding), that the rule assumed significance and began to come into its own. Yet
in spite of its novelty the announcement of the doctrine caused no stir at the time (as has often
been noted), and was made with the off-hand manner of adjudicators who are treading on
familiar ground.

Contributory conduct of the injured party in medieval and early modern

common law

Although Roman law was not received in English common law to the extent that it was received
on the continent, it certainly influenced the concepts, terminology and principles of English
common law.4 Some thoughts on the subject of contributory negligence were also taken from
Roman law.5 It is interesting that the English jurist of the 13th century Henry de Bracton (c.

2
1210-1268), In his briefing on homicide by misadventure and accidents.3 The behavior of the
injured party was apparently irrelevant in cases of (criminally sued) crimes.4 However, the
concept of contributory negligence can not be discovered as such in the prevalent medieval law
of criminal offenses. In his briefing on homicide by misadventure and accidents.5 The behavior
of the injured party was apparently irrelevant in cases of (criminally sued) crimes. However, the
concept of contributory negligence cannot be discovered as such in the prevalent medieval law of
criminal offenses. Nevertheless, there are some cases which, when considered from a modern
contemporary perspective, deal with the problem of ‘contributory negligence’. Due to the
different limited types of intervention, a general principle of contributory negligence in this era is
unplausible. Two groups of instances can be differentiated in which the injured party's
contribution behavior was applicable: the first group concerns instances in which the injured
party's contribution behavior was dealt with by the judiciary. By looking at the causal relations
of the act of the wrongdoer and the act of the injured party with the loss that occurred; in the
second group, some considerations of negligence can already be discerned.

Contributory negligence in 19th and 20th

The concept of negligence as an independent ground of liability took a clear shape in the
eighteenth and early nineteenth centuries.31 The defense of contributory negligence originated
from Butterfield v. Forrester (1809), the leading case of contributory negligence in the early
nineteenth century,32 although the term contributory negligence was not yet mentioned.6
Surprisingly, the rule set out in Butterfield v. Forrester was said to be a well-established rule –
easily adopted by the legal profession without arguing against it. The case was as this- A man
riding a horse colliding with a pole on a public road where the rider was thrown out of his horse
and wounded. The person was rejected his claim for damages on the grounds that he was found
riding at excessive velocity and also not taking ordinary care. According to the judge before
whom this case was brought at first example, if he culled, an injured party could not recover his
loss. A just move before the jury was rejected (1750-1818), apparently a furious jury in its own
day, who declared without backing the authority.

6
Butterfield v. Forrester (1809) 11 East 60/103 E.R. 926 (K.B. 1809)
Doctrinal justifications for denying claims for damages in the case of contributory behavior by
the injured party are found primarily in the theory of Causality.43 In the case of contributory
negligence, the injured party's act, rather than the wrongdoer's, is considered to be the closest
cause.7 Other possible justifications provided are based on the voluntary assumption of risk or
the idea that the injured party should come to court with ‘clean hands’ or are derived from the
construction of the injured party and the wrongdoer as joint tortfeasors.

Rules to Determine the Contributory Negligence:

The Contributory Negligence Act prescribes the rule when Plaintiff is involved in contributory
negligence. The following rules determine this:

1. Negligence of the plaintiff in the relation to the defence of contributory negligence

doesn't have the same connotation as is assigned to it as a tort of negligence. Here the
plaintiff does not necessarily have to owe the other party a duty of care. What must be
proved is that the plaintiff owns the damage. Therefore, “all that is necessary to establish
contributory negligence is to prove to the satisfaction of the jury that thet injured party
did not in his own interest take the reasonable care of himself and contributed, by his own
"want of care, to his own injury”8.

A good example for this point would be the Case Law Bhagwat Sarup vs.
Himalaya Gas Co., the defendant Co. sent his delivery guy to send the gas cylinder replacement
to the plaintiff on his property. The cylinder cap was defective. The delivery guy got an axis for
the opening of the cylinder from the plaintiff and struck the cap with the axe. The gas leaked
from there, causing the death of the daughter of the plaintiff, also injures to some other family
members and damage to his property. It was held that there was sole negligence on the part of
the delivery man but there plaintiff gave an axe to the delivery man on asking did not imply
contributory negligence on the part of the plaintiff.

2. It is not sufficient to demonstrate that the plaintiff did not take proper care of his own
safety. It must also be proved that the resulting harm was caused by his absence of care.
7
P.A. Landon, Pollock’s Law of Torts (1951)
8
Law of Torts By R.K Bangia
 If negligence on the part of the defendant had caused the same harm even if the plaintiff
had been cautious and negligence on the part of the plaintiff was not the operational
cause of the accident, the defense of contributory negligence would have been possible.
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 negligence here cannot be considered to be a contributory negligence for his
injury by the defendant.

Famous case law- Agya Kaur Vs. Pepsu Road Transport corporation.9
An auto with a rickshaw and three adults and a child, while being driven correctly, was
hit by a bus driven at a high speed and also coming from the wrong direction. It was held
that there was negligence on the part of the bus driver only, and inspite of the fact that
rickshaw was overloaded, there was no contributory negligence in the part of the ricksaw
driver because it was not the auto rickshaw which contributed to the accident.

Contributory Negligence of Children

Principles and rules which apply to a mature or an adult is not necessarily going to apply in the
cases of dealing with a child. Child cannot be expected to be as careful as a mature person. Age
of the individual, thus, has to be taken into consideration to ascertain if a person is guilty of
contributory negligence or not.

Factors Considered in Determining Negligence of Children:

1. Intelligence
2. Experience with the activity
3. Instructions provided
4. Maturity
5. Alertness
6. Supervision etc.

9
Law of Torts By R.K Bangia
In India there are certain which really defined the meaning of cases with Childred.

In R. Srinivasa vs. K.M. Parasivamurthy, a child of about 6 years was hit by a lory while
standing just near the foothpath. It was help that the child lacked the road sense and therefore,
the Plainitiff cannot be blamed for this.

The Doctrine of “Last Opportunity Rule”

The Last Opportunity Rule is one of the major Remedies that are followed in the cases of
Contributory Negligence. It is also known as “Last Clear Chance”. It literally means that last
moment at which the individual had the time to act upon the situation and not let the unfortunate
happen. The doctrine "Last Clear Chance" says that if the defendant had the "last chance" to
prevent the accident, even if the plaintiff was partially responsible, the court may still make the
defendant responsible for the act. Suppose, for an instance, the plaintiff ran a red light and the
defendant was hurt. Here, the defendant was partially responsible for their own injury because
they negligently ran the red light, and the defendant would normally not be granted damages for
their injury in a contributory negligence jurisdiction

The key components for the doctrine of the last opportunity rule are:

1. The plaintiff's own negligence put himself in a position of risk or danger.

2. The defendant identified the risk and thus became obliged to prevent it.
3. The plaintiff could not avoid the danger.
4. The defendant was unable to prevent the danger.
5. The plaintiff was injured as a result of the defendant’s failure.

Limitations to the Last Opportunity Rule

 1. The last chance that the defendant would have but for his own negligence is in law
equal to one which he actually had.
2. Where, in reality, the defendant alone learns about risk and does not use due care to
prevent it, he is responsible, even to a negligent plaintiff who clearly had the last
chance or the last opportunity.

Indian Case laws of Last Opportunity Rule:

D.G. Dalal v. State of Gujarat, July 2001

Som Krishna v. Paras Ram and Ors, July 1958

Famous Case law of the Last opportunity Rule:

1. Case Davies vs. Mann10 explains the rule. In this case, the defendant fettered his
donkey's forefeet, leaving him on a tight road. The plaintiff was driving his wagon
by horses too fast that it ran over and murdered the donkey. The defendant was
held liable even when there was negligence on the part of the plaintiff. The
plaintiff is entitiled to recover the damages.

Limit or the Extent of Contributory Negliegence

At Common Law, the plaintiff's contribution negligence was deemed a good defense and the
plaintiff lost his action. The Own negligence of the plaintiff disentitled him to take any action
against the defendant. The Plaintiff's negligence does not imply a breach of obligation toward the
other party, but rather a lack of duty of care on his part regarding his own safety.

10
Law of Torts By R.K. Bangia
In the Case Law of Butterfield Vs. Forrester, By putting a pole over it, the defendant illegally
blocked the highway. The plaintiff who ran violently on the highway in the twilight collided with
the pole and was thrown out of his horse and injured. If the plaintiff had been reasonably careful,
the obstruction could have been detected from a distance of 100 yards and thus prevented the
accident. It was held that the plaintiff had no cause of action because by practicing due care he
could have prevented the accident himself.

This rule works as a great hardship particularly for the plaintiff because for a slight negligence
on his/her part, he/she may lose their action as a defendant whose negligence may have been the
main cause of damage to the plaintiff.

Presumption of Contributory Negligence:

The very common presumption in the cases of Contributory Negligence is that people tend to
presume that “Other Are Careful”. There are many instances where the plaintiff can assume that
the defendant is going to be careful. In such a case, he has no duty against the defendant's
unforeseen negligence. The defendant can not blame the plaintiff for not having defended against
the accident if the obligation to take care does not exist.

In the case law of Gee vs. Metropolitan Railway Co. - The train had left a station and a train
door was negligently left unfastened by the defendant’s servants and the door dropped open,
causing the plaintiff to fall out of the train and caused him injury. The door the plaintiff pleaded
that “res ipsa loquitur” (the things speaks for itself) applied, as accidents of this kind generally
do not happen if adequate care is taken, and this was something within the railway company's
exclusive control and plaintiff had a right to presume that railway servants were not negligent in
leaving the door unfastened.

The Burden Of Proof in Contributory Negligence

The burden of proof resides on the defendant. In order to obtain the defense of contributory
negligence, the defendant must demonstrate that the plaintiff is liable like him and ignored due
diligence that could have prevented the consequences of the defendant's negligence.

Case Laws-

- Great Central Railway Co. Vs. Bates (1921)11

The plaintiff suffered injuries as he slipped off the lift's shaft because walked back opening the
gates and stepped through it assuming the lift was still in location.

The man was guilty of Contributory Negligence and therefore he wasn’t entitled to recover the
damages

Difference Between Plaintiff the Wrongdoer and Contributory

Negligence

There are some basic ideas of defense and the various ways it can be constructed. One of those
commonly recognized defenses in any tort is "when the plaintiff is the wrongdoer." Under this
principle, the law excuses the defendant when the plaintiff's own act was either illegal or
incorrect. The defense derives from the Latin maxim "ex turpi causa non oritur action," meaning
that no action arises from an immoral cause. So the plaintiff's unlawful act can prove to be a
valid defense for the defendant in itself.

The principle of contributory negligence is another form of defense that the defendant can bring
across. This is a sort of defense in which the defendant may claim that a plaintiff has contributed
to his own injuries or losses in some manner. It will prevent a plaintiff who is found to be
"contributorily negligent" from getting damages. In those cases where this is provided as a
defence, it is the defendant's responsibility to prove that the plaintiff was also negligent.

11
 Gillies v Procurator Fiscal, Elgin HCJ (Bailii, [2008] ScotHC HCJAC – 55, 2008 GWD 31-476, 2008 SCCR 887, 2008 SCL 1316,
2008 SLT 978, 2009 JC 25, [2008] HCJAC 55) 
Under contributory negligence, the plaintiff adds in some manner to the damage caused to
himself by the defendant's deeds, whereas in the event of the plaintiff the wrongdoer, the
plaintiff's act in itself is unlawful or incorrect.

Key differences lies-

1. Law straight away leaves the defendant and doesn’t the plaintiff to recover his/her
damages in the case of “Plaintiff being the Wrongdoer”

2. The defendant may argue in case of contributory negligence that there’s a plaintiff who
also contributed in some way to their own injuries or damages.

3. In “Contributory Negligence” plaintiff contributes to the harm caused whereas in

“Plaintiff the Wrongdoer” the act of the plaintiff is in itself an unlawful act or a wrong.

To conclude, just because the plaintiff is at fault does not prevent him from claiming
the compensation from the defendant. Ultimately, it is up to the defendant to prove that
[the plaintiff's act (plaintiff the wrongdoer)/or the extent of the plaintiff's negligence
(contributory negligence)] was the determining cause of the damage that he received.

Table of Cases:

I. Municipal Corporation of Greater Bombay Vs. Laxman Iyer12

II. Davies Vs. Swan Motor Company Limited13
III. Harris Vs. Toronto Transit Commission14\
IV. Bird Vs Holbrook15
V. Padmavati Vs. Dugganaika16

12
A.I.R 2003 SC 4282.
13
(1949) 1 All. E.R. 620.
14
1968 A.C.J. 264
15
(1828) 4 Bing. 628
16
(1975)1 Kam L.J. 93 : 1975 A.C.J. 222.
Conclusion:

It can be concluded that contributory negligence is the defense available to the defendant that
restricts or prohibits the plaintiff from receiving compensation or benefits. Taking due diligence
to avoid the negligence of others is the omission of an act or ignorance. The burden of evidence
resides on the defendant in the event of contributory negligence. There are certain conditions for
the defense of contributory negligence in which it doesn’t apply as mentioned above.

Whereas, Plaintiff the wrongdoer is altogether a different concept and still there are ways for the
plaintiff to recover damages even if he/she is unlawful in their acts. It doesn’t disable the
plaintiff to have the compensation. All he/she has to prove that the act of the plaintiff was the
determining cause of the harm suffered by him/her.

METHOD OF STUDY:

The researcher has adopted the doctrinal method of research.

REVIEW OF LITERATURE:
Law of Torts by Justice G P Singh
Law of Torts by W.V.H. Rogers
Ratanlal & Dhirajlal, The Law of Torts by Justice G P Singh
Law of torts by R.K. Bangia 24th edition Allahabad Law Agency
Winfield &Jolowicz on Tort by H. Rogers

Textbook on Tort by David Howarth

Tort Law by Mark Lunney& Ken Oliphant

National Law Institute University, Course material on Law of Torts by Asst. Prof. Kavita Singh

BIBLIOGRAPHY:
 ⠀https://www.quora.com/What-is-the-difference-between-a-plaintiff-wrongdoer-vs-
contributory-negligence
 ⠀https://en.wikipedia.org/wiki/Tort_law_in_India#Contributory_negligence
 https:/www.lawctopus.com/academike/general-defenses-in-torts/
 https:/www.justia.com/injury/negligence-theory/comparative-contributory-negligence/
 https:/blog.ipleaders.in/contributory-negligence-plaintiff-the-wrong-doer/
 https:/indiankanoon.org/search/?formInput=contributory%20negligence%&%plain tiff
%wrongdoer%20cases