January 27, 2021

Contributory Negligence and its Defences

law of torts

Introduction-

Contributory negligence is a type of tort where the person, who must care omit his duty and harm another person. It is one of the self-defence that is taken by the accused. It is an act of ignorance and carelessness by the person who has the duty to care which a reasonable man would do.

Negligence in a layman’s language is the omission of the duty to take care of, which results in injury to the appellant. Both the property and the person can be harmed due to negligence.

Suit for the negligence arises whenever there is a breach of duty which the man of reasonable calibre would not do and it resulted in injury.

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To arise any suit for negligence it is necessary that-

  • There should be ignorance and carelessness.
  • Breach of duty which a reasonable and prudent man would not do.
  • Breach of duty which is recognised by the law.

Illustrations-

1. If A is driving a car in the night without headlights and accidentally injure B who is coming from the wrong side. Then it is the case of contributory negligence as B should not walk on the wrong side of the road and A should have turned on the headlights of the car as a reasonable man would do.

2. If a doctor accidentally during an operation left one of its tools in the patient’s stomach then it is a case of negligence from the side of the doctor. As it is the utmost duty of the doctor and he was completely negligent on his part.

Concept of duty to care-

The phrase duty to care itself means it is an obligation on the person to take care and to do things more carefully so that there will be zero chances of any risk or injury from their side. If there is any kind of omission to fulfil the duty then it gives rise to the liability.

In the case of Donoghue V. Stevenson[1]- The girl was having a ginger beer when she discovered there is a decomposed snail in the bottle and due to the consumption of ginger beer she suffered from gastroenteritis. She sued the manufacturer of the bottle.

It was held that the manufacturer is liable and he has the duty to care before selling the bottles to others and he should take all the necessary steps to avoid any kind of injury to the neighbours.

Degree of Care- The degree of care is directly responsible for the gravity of the injury caused. The more the gravity of the injury the more care is required. If any act or omission can cause injury to the great extent then more care is required.

Example- A was a gatekeeper of the railway he opened the gate without even seeing whether the train is coming or not. X who was driving the car was hit by the train when he was crossing the railway. It was held A has to check and after that only he has to open the gates.

Concept of Contributory Negligence-

It means that the ignorance or the carelessness of both the parties is involved. It is a defence which is available to the defendant which prevents the plaintiff to get compensation[2].

Contributory negligence is the ignorance of due care on the part of the plaintiff to avoid the consequences of the defendant’s negligence[3].

The concept of Contributory negligence is based on the principles of “Volenti non-fit injuria”. The maxim means that the injury has suffered voluntarily and the defendant is not fully liable. So, if the plaintiff is not taking due care and due diligence where he has to take care of and he got injured then the liability is both on the plaintiff and the defendant.

But if both the plaintiff and the defendant take due care and all the measures to avoid the accident or the injury then the plaintiff cannot sue the defendant for that.

The burden of Proof- The burden of proof is on the defendant to prove that the plaintiff is equally liable for the act. And the plaintiff was not careful and due to which he suffered injuries.

In the case of Great central rly. V. Bates[4]- The plaintiff sustained injuries as he fell down from the shaft of the lift because he went backwards opened the doors and stepped through it assuming that the lift would still be in place[5].

It was held that this is the case of contributory negligence the plaintiff won’t get any compensation.

In the case of Hansraj v. Tram CO.[6]- X boarded in a moving tramcar and suffered injuries. So, X sued the company. It was held that X should have waited for the tramcar to stop and then he should have boarded so the company was not held liable.

The defence of contributory negligence is not available when- it is proved that the defendant has the duty to take full care and he is legally bound to take full care and diligence. So, if any injury is caused to the plaintiff then the defendant will be held liable.

For example- A and B was travelling in a bus and A, in order to show something to B, pointed his hand outside the window and the window suddenly got open and A was injured. Although there was A’s duty to not take out his hands of the window but the staff and the crew were liable as it was their duty to check all the windows and the doors.

Rule of the last opportunity- It means who is having the last opportunity to avoid the accident.

For example- If the dog suddenly came before the car which B was driving rashly then B will be held liable as he was having the last opportunity to prevent the accident.

It is always the defendant who has the last opportunity according to the law and it will be treated as his negligence.

Conclusion-

From the above, it can be concluded that contributory negligence is a defence used by the defendant to prove that the plaintiff is also equally liable and to save himself from giving compensation or damages to the plaintiff. The burden to prove that it is the case of contributory negligence is always on the defendant.

References


[1] 1932 A.C. 562.

[2] Krishnendra Joshi, Contributory Negligence, Ipleaders, May 4, 2019, https://blog.ipleaders.in/contributory-negligence/.

[3] Ibid.

[4] (1940) 3 All.E.R.399.

[5] Joshi, supra note 2.

[6] 35 Bom.478.


Author: Riddhi Daga (Hidayatullah National Law University)

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