Contributory Negligence-Critical Analysis

Ritesh Shukla

Programme : B.A.LL.B(Hons.)
Subject : Law of Torts
Semester : 1
Roll No : 074-21

Supervisor
Abhishek Negi
(Assistant Professor of Law)

DHARMASHASTRA NATIONAL LAW UNIVERSITY

Jabalpur

November 25,2021
 Acknowledgement

I am extremely privileged to have this opportunity to thank my

teachers under whose guidance and assistance I was able to complete
my project. All my work is possible because of their selfless
supervision on me.

I would like to thank the Vice Chancellor of our university Prof. Dr.
V. Nagaraj for his cooperative attitude towards every student of our
university and to give me an opportunity to gain knowledge and do
creative assignment which will result in enhancement of my research
skills.

With a deep sense of respect, I wholeheartedly thank’s Abhishek

Negi (Assistant professor of Law) for providing this assignment
and giving me all support and guidance, which made me complete
my project. Mam provided us with the ideas and material so this
project could be easy for us to do.
S.no. Topic Page
Number

1 Abstract 4

2 Introduction to Topic 5

3 Contributory Negligence 6

4 Contributory Negligence Rules in India 7

5 Cases Related to Contributory negligence 7

6 Key concepts related to Contributory negligence 7

7 Composite Negligence 9

8 Contributory Negligence v. Composite negligence 10

9 Conclusion 10

10 Bibliography 11
 Critical analysis of Contributory Negligence
By-Ritesh Shukla1

Abstract
This paper is an attempt to explain what contributory negligence in very simple language to
the reader it starts with first explaining the basis to acquaint the reader with the main topic of
the paper like what negligence is and what are the essentials of negligence and some concept
related to it and then discuss some case related to negligence. Then we will discuss about
what is contributory negligence and law related to it in India and appropriation of liability in
different cases of contributory liability later on this paper we will discuss about different key
concepts related to contributory negligence like The last opportunity rule, Doctrine of
Alternative Danger, Doctrine of Identification and about Contributory negligence of children
and case’s related to each of them. At last we will discuss about Composite negligence a
concept of law or torts which is often confused with contributory negligence and we will
differentiate between both of them.
Objective of this paper is to know about what negligence is and what are different types of
negligence are there and burden of proof lies on which party in different cases, to know in
depth about contributory negligence with the help of some of the most prominent cases
related to it and about the distribution of liability in different cases by the courts of India.
The researcher has relied upon the analytical and doctrinal method of research for the
project. In order to gain essential and relevant details and outcomes of the research work, the
researcher has concentrated on collecting the data from the secondary source of information
available through various books, journals, case laws etc. to give the reader the all the relevant
information that a person need to know about contributory negligence.

1
Ritesh Shukla (074-21)- First Semester Student of B.A. LL.B (Hons.) at Dharmashastra National Law University,
Jabalpur (M.P.)
Introduction:
In everyday usage the word Negligence denotes mere carelessness but in legal
usage it signifies failure to exercise the standard of care which a reasonable prudent person
exercises under a given circumstance.
Negligence derived from latin word "negligentia" Negligence is a type of tort
which means a breach of duty (duty to take care) by one person which causes damages to
another person. It is an act of carelessness and ignorance on the part of the defendant which
he is obligated to perform which a rational and prudent man would not do and act must be
foreseeable one, Negligence is committed in respect of both person and property.

Concept of breach of duty comes from a landmark case of Donoghue V. Stevenson2, in this
case the plaintiff suffered from gastroenteritis (intestinal infection) as she consumed the
ginger ale beer in which she found the body of a decomposed snail at the bottom of the
bottle. The ginger beer had been manufactured by the defendant. It was held that the
defendant neglected his duty to take care which caused injuries to the plaintiff.

Breach of duty to take care and measures in order to avoid any kind of performing an act is
the basic requirement in order to raise liability of negligence. Suit for negligence arises when
there is a breach of duty which is recognised by law.

According to Winfield and Jolowicz- Negligence is the breach of a legal duty to take care
which results in damage, undesired by the defendant to the plaintiff3.

From the above give definition we can conclude three basic constituents of Negligence

1. A legal duty towards plaintiff.

2. Breach of the said duty.
3. Consequential damage caused to plaintiff.

Burden of proof

 Plaintiff has the burden of proof. He must prove that he has sustained injury from
the negligence of the defendant and their is a proximate relation between the act
and injury.
 Res ipsa loquitur (the thing speaks for itself) is another condition in which the
plaintiff is not required to prove anything as the accident itself afford the prima
facie evidence.

Some cases related to negligence:

2
Donoghue V. Stevenson 1932 A.C. 562
3
[Ref. Winfield and Jolowicz on Tort, Ninth Edition, 1971, p. 45].
  Booker v. Wenborn4, in this case the defendant boarded a train which has just started
moving but he kept the door open which hit the plaintiff standing on the platform, it
was concluded by the court that Wenborn was liable for negligence.
 Xavier v. State of Tamil Nadu5, in this case petitioner’s only son who was blind died
of electrocution on a street due to leakage of electric current as it was not maintained
sufficiently by the cop. The municipal cop. Was held liable and compensation of
Rs.50,000 was given to the petitioner.
 Nihal Kaur v. Director, P.G.I., Chandigarh 6, in this case scissors was left in the
body of patient during operation which later worsen the condition of the patient and
ultimately led to the death of the patient, scissors was recovered from the ashes of
patient after cremation. Compensation of 1,20,000 was awarded to the dependents of
the deceased.

Contributory Negligence:

The concept of contributory negligence first appeared clearly at

the beginning of the 19th century but the general idea of this concept was somewhat could be
traced much earlier. one of the most significant case laws pertaining to this concept was
Butterfield v Forrester7, in this case the defendant wrongfully obstructed a highway by
putting a pole across it. The plaintiff, who was riding violently in the twilight collided with
the pole and was thrown from his horse and was injured, if the plaintiff would have been
reasonable careful he would have seen the pole and thus avoided the accident. It was held that
the plaintiff had no cause of action against the defendant he himself could have avoided the
accident by being reasonably careful.

Contributory negligence, in law, behaviour that contributes to

one’s own injury or loss and fails to meet the standard of prudence that one should observe
for one’s own good. Contributory negligence of the plaintiff is frequently pleaded in defence
to a charge of negligence. 8

Contributory negligence usually arises in a lawsuit in which a plaintiff has accused a

defendant of negligence. The defendant may then charge the plaintiff with contributory
negligence. At common law, if the defendant proves this charge by a preponderance of
evidence, the plaintiff cannot recover any damages—even if the defendant was negligent—
because the contributory negligence breaks the causal connection between defendant’s
negligence and plaintiff’s injury or loss.

Contributory negligence doesn't only play a significant role in absolving the defendant of his
ability but also the assessment of damages. For a tort of negligence to be contributory in
nature, it should be in the proximate cause of actual injury to qualify as contributory
negligence.
4
(1962) 1 All E.R. 431
5
A.I.R. 1994 Mad.306.
6
III (1996) C.P.J. 441 (Karnataka SCDRC).
7
(1809) 11 East 60.
8
Britannica, T. Editors of Encyclopaedia (2020, May 8). contributory negligence. Encyclopedia Britannica.
https://www.britannica.com/topic/contributory-negligence.
This idea of contributory negligence is loosely based on the maxim "Volenti non fit injuria"
(injury sustained voluntarily). It means that if a person does not exercise due diligence in
order to avoid consequences resulting from the defendant's negligence, the liability for
negligence will fall on both of them.

The defendant bears the burden of proof. To obtain the defence of contributory negligence,
the defendant must prove that the plaintiff is equally responsible as him and he had ignored
due diligence that could have avoided such consequences arising from the defendant's
negligence.

Contributory negligence Law in India:

In India there is no Central Legislation
corresponding to the Law reform of England Contributory Negligence Act, 1945 which is
considered to be very just and equitable. Appropriation of liability in cases of Contributory
negligence in India is decided based on Kerala Torts (Miscellaneous Provisions) Act, 1976
Sec.8 this provision is same as Law reform of England. This law says that a claim for
damages in a contributory negligence case shall not be defeated because of the fault of the
person suffering the damages; however, the damages recoverable in respect thereof shall be
reduced to the extent that the court considers just and equitable in light of the claimant's share
in the responsibility for the damage. In various cases which have come before various High
courts in Indian, the doctrine of apportionment of damages, on the line of the Law Reform
Act has been followed and contributory negligence has been considered as a defence to the
extent the plaintiff is at fault

Some cases related to contributory negligence:

 Rural Transport Service v. Bezlum Bibi9, conductor of an overly crowded bus

invited passengers to sit at the top of the bus, while driving the bus driver ignored the
fact that passengers were sitting at the top of the bus he tried to overtake a cart and
while doing so hurt the passenger sitting at the top of the bus causing him sever
injuries and consequently leading to his death. In this case court held both the driver
and the conductor liable. There was also contributory negligence on the part of the
passengers and the deceased, they took the risk on travelling on the roof of the bus the
compensation payable by the defendant was reduced by 50% and they were asked to
pay Rs. 8,000 instead of Rs. 16,000.
 Agya Kaur v. Pepsu Road Transport Corporation 10, In this case a rickshaw with
three adult and a child was travelling at the correct side of the road and a bus coming
on the wrong side of the road with high speed crash into the rickshaw causing the
death of all of the passengers of the rickshaw, defendant plead defence of contributory
negligence because the rickshaw was overloaded at the time of accident, the court
concluded that the accident was held to be due to the negligence on the part of the
defendant.

9
A.I.R. 1980 Cal. 165.
10
A.I.R. 1980 P. & H. 183.
  Yoginder Paul Chowdhury v. Durgadas11, in this case the Delhi High court has held
that a pedestrian who tries to cross a road all of a sudden and is hit by a moving
vehicle, is guilty of contributory negligence.

Some key concepts related to Contributory Negligence:

1. The last opportunity Rule:

The rule of the last opportunity refers to the last chance to avoid
an accident. If, in a given situation, both the plaintiff and the defendant are negligent, and
whoever has the last chance to avoid such consequences fails to do so, he or she will be held
solely responsible for the accident.

 In British India Electric Co. v. Loach12, the rule of last opportunity was applied.
Plaintiff, a waggon driver in this case, was driving negligently on the level crossing.
The defendant's tram driver arrived at a high speed, saw the waggon on the tramline,
and applied the brakes. However, his brakes failed, he collided with the plaintiff
causing the plaintiff's death. The plaintiff's relatives filed a lawsuit against the
defendant. It was discovered that the brakes were defective, so the defendant had the
last chance, and if the brakes had been in working order, he could have avoided the
accident. He failed to do so, and as a result, the defendant was held liable by the court.

2. The Doctrine of Alternative Danger:

It is also known as dilemma principle. A situation like

this arises when the defendant's wrongdoing places the plaintiff in imminent personal danger.
Plaintiff sustains injury in order to avoid the danger. In such cases, the defendant is held
liable.

 Jones v. Boyce13: a coach-driver was driving with plaintiff negligently and at such a
high speed that plaintiff became alarmed. The coupling on the coach gave way as it
descended the hill; it collided with a post and was about to be turned down. To save
himself, the plaintiff jumped out of the coach and was injured. He went to the court
against the driver. The driver was found to be at fault by the court. If the plaintiff had
not jumped out, he would not have been injured because the coach came to a stop
without incident later. Even so, the driver was held liable because he created a
dilemma for the plaintiff.

3. Contributory Negligence of Children:

11
1972 S.C.J. 483(Delhi)
12
(1960) 1 A.C. 719
13
(1880) 5 A.C. 876
 What constitutes contributory negligence in the case
of an adult may not be so in the case of a child because a child cannot be expected to be as
careful as an adult. The age of a person must therefore be considered when determining
whether or not a person is guilty of contributory negligence. There cannot be a case of
contributory negligence on the part of a child because a child cannot be expected to be as
concerned about his own safety as an adult. In such a case, a contributory negligence plea
cannot be used.

 R. Srinivasa v. K.M. Parasivamurthy14, A 6-year-old child was hit by a lorry while

standing near a footpath. It was ruled that a child of that age lacks the road sense and
experience of his or her elders and, as a result, cannot be blamed for contributory
negligence in this case, and the court rejected the defence of contributory negligence.

4. The Doctrine of Identification:

The defence of contributory negligence can be invoked not

only when the plaintiff is negligent, but also when the plaintiff's servant or agent is negligent,
provided that the master himself would have been liable for such negligence if any harm
resulted from it.

 Bernian Mills v. Armstrong15, In this case, through the fault of the two ships they
collided and two persons on board of one of those ships were drowned. The
representatives of the deceased persons were held entitled to recover compensation
from the owners of the ship other than that in which they were. The deceased were not
identified with their carrier for its negligence for the purpose of the defence of
contributory negligence.

Composite Negligence:

Composite negligence occurs when the negligence or omission of

two or more people has caused damage to a third party. In such a case, the said third party
does not contribute to the accident or damage, and as such, has the right to sue all or any
negligent person for damages. Therefore, two or more people are required for a negligent act
to be called as composite negligence. In the cases of composite negligence courts look into
the degree of responsibility of the parties.

 Karnataka State Road Transport Corporation v. Krishnan16, 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 to both the passengers.

14
A.I.R. 1976 Kant. 92.
15
(1881) 13 A.C. 1.
16
A.I.R. 1981 Kant. 11
Composite Negligence v. Contributory Negligence:
Contributory negligence and composite
negligence are concept of law of torts in which law students are often confused between.
'Composite negligence' refers to the negligence on the part of two or more persons. Where an
individual is injured as a results of negligence on the parts of two or more wrong doers, it's
said that the person was injured on account of the composite negligence of these wrong-
doers. In such a case, each wrong doer, is jointly and severally liable to the injured for
payment of the complete damages and also the injured person has the selection of proceeding
against all or any of them. In such a case, the injured needn't establish the extent of
responsibility of every wrong-doer separately, neither is it necessary for the court to work out
the extent of liability of every wrong-doer separately. On the opposite hand contributory
negligence is a defence for negligence in the hands of defendant in a case negligence it takes
place when there is negligence on the part of the plaintiff himself which contributes to the
harm he suffered. When the injured is guilty of some negligence, his claim for damages isn't
defeated merely by reason of the negligence on his part but the damages recoverable by him
in respect of the injuries stands reduced in proportion to his carelessness and negligence.
Therefore, when the injured is himself partly liable, the principle of 'composite negligence'
won't apply nor can there be an automatic inference that the negligence of both the parties is
equal. The Tribunal had to examine the extent of carelessness of the appellant and thereby
avoided confusion between composite negligence and neglect.
Conclusion:
As there is no act or law related to contributory negligence in India it is based on precedent
and Law reform of England Contributory Negligence Act, 1945 on which most cases a relied
upon to. In this paper we discussed about negligence, its types and essential of its and
definition given by Winfield and Jolowicz and about burden of proof lies on which party in
different cases and distribution of liability and we discussed about different cases related to
all the topics we have discussed and judgement given by the courts in those cases . After
reading this paper the reader will be able to understand about what contributory negligence is
and what the courts judgement might be in different cases and the reader could easily
differentiate between composite negligence and contributory negligence case and which party
is at fault in those cases.
 Bibliography
 Bangia, R.K. (2020). Law of Torts (25th ed., pp. 29-41). Allahabad Law Agency.
 Wright. (1950). Contributory Negligence. The Modern Law Review, 13(1), 2–23.
 Negligence. Contributory Negligence. (1904). The Virginia Law Register, 10(3), 273–
273.
 Donoghue V. Stevenson 1932 A.C. 562
 [Ref. Winfield and Jolowicz on Tort, Ninth Edition, 1971, p. 45].
 (1962) 1 All E.R. 431
 A.I.R. 1994 Mad.306.
 III (1996) C.P.J. 441 (Karnataka SCDRC).
 (1809) 11 East 60.
 Britannica, T. Editors of Encyclopaedia (2020, May 8). contributory negligence.
Encyclopedia Britannica. https://www.britannica.com/topic/contributory-negligence.

 A.I.R. 1980 Cal. 165.
 A.I.R. 1980 P. & H. 183.
 1972 S.C.J. 483(Delhi)
 (1960) 1 A.C. 719
 (1880) 5 A.C. 876
 A.I.R. 1976 Kant. 92.
 (1881) 13 A.C. 1.
 A.I.R. 1981 Kant. 11