Contributory Negligence
Contributory negligence basically means ignorance from both the parties involved.
If a person is driving a car without any breaks met with an accident with another
person who was driving on the wrong side of the road. This results in contributory
negligence. It’s a defence available to the defendant in case of contributory
negligence which prevents the plaintiff to get compensation.
Contributory negligence is the ignorance of due care on the part of the plaintiff to
avoid the consequences of the defendant’s negligence. This concept is loosely
based on the maxim- “Volenti non fit injuria” (injury sustained voluntarily). It
means, if a person is not taking due diligence in order to avoid consequences
resulting out from the negligence of the defendant the liability of negligence will be
on both of them.
Principles of contributory negligence
If the plaintiff is himself negligent for taking due care in order to avoid
consequences and becomes the direct cause of the damages, he is not
entitled to receive any compensation.
If both the plaintiff and the defendant have taken reasonable measure and
ordinary care to such extent where they both wanted to avoid such
consequences then the plaintiff can’t sue the defendant.
The burden of proving contributory negligence
The burden of proof lies over the defendant. In order to get the defence of
contributory negligence, the defendant must prove that the plaintiff is responsible
as him, and ignored due diligence which could have avoided such consequences
arising from the negligence of the defendant.
Eg: A attempted to board a moving tramcar and end up getting injured. He sued
the company. It was held that if he would have boarded in a tramcar, not in
motion, it would have been easier for him to get a firm grip in the handlebar and
settle down easily. The company was not held liable.
When the defence of contributory negligence is not available?
When it is not necessary for the plaintiff to take due care but the defendant was
legally obligated to perform such duty of care failure of which will result in the
liability of negligence for the defendant.
For eg.- A was travelling on a train with his brother. In order to show him
something outside the window got up and placed his hand on the window which
suddenly flew open. Though he could have avoided the accident, it was the duty of
the staff to properly screw the window which would have not resulted in such an
accident.
Butterfield v. Forrester (1809)
In the instant case due to the ignorance of the plaintiff in order to take due care
while driving, he met with a collision with the pole which was wrongfully
obstructed by the defendant. So without considering the negligence of the
defendant, the plaintiff could have avoided the accident.
The second situation is when the defendant has time to recourse and take
reasonable measures in order to avoid an accident.
For eg.- If A is driving a car without headlights at a galloping speed sees B driving
in the wrong side from a long distance. He has the time to recourse and take due
diligence to avoid an accident.
Davis v. Mann (1842)
In the instant case, the defendant ran over the donkey of the plaintiff while driving
at a fast pace. He was negligible and was entitled to pay compensation to the
plaintiff.
The third situation is when a defendant will not get the defence of contributory
negligence when he creates a situation under which the plaintiff gets reasonable
apprehension of imminent threat or menace to his life and in order to escape such
danger he acted rationally and avoided due care of diligence.
The 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 so perplexed or nervous by a dangerous
situation created by the defendant and to save his person or property, or
sometimes to save a third party, may take an alternative risk. The law permits the
plaintiff to encounter an alternative danger to save himself from the danger created
by the defendant.
For eg. A, a bus driver was driving negligently and rashly due to which an accident
was about to take place. But B acting prudently jumped out of the bus and
sustained injuries. A is liable to pay for the damages sustained by B. (Jones v.
Boyce)
Contributory negligence is not applicable over children. The ability to think
rationally and prudently like an adult is absent in a child. Proper allowances are to
be made for the lack of experience and their minute sense of making any judgment.
Though if they sustain any damage by their own actions they will be liable for the
negligence.
S.M. Railway Co. Ltd. v. Jayammal, (1924)
In the instant case, a 7-year-old girl was knocked down by an engine while crossing
the railway line. She was held responsible for the damages as she was capable of
understanding the danger and discrimination while crossing the railway line.
Rule of Last Opportunity
The term rule of the last opportunity means the last opportunity to avoid an
accident. If in a situation both the plaintiff and the defendant are negligent on their
part and whosoever has the last opportunity of avoiding such consequences fails to
do so will be held responsible for such accident solely.
Illustration
A is out for a walk with his dog but without a leash on him. The dog suddenly ran
towards the road and got hit by B who was driving rashly. Here B had the last
opportunity to avoid that accident by pushing the brake pedal.
Limitations
Where the defendant is aware of the gravity of the consequences and fails to take
proper measure, he will be held liable.
For instance in the given example above if, B sees the dog from a long distance
and still avoids to take reasonable care which resulted in the death of the plaintiff,
he will be held liable.
The defendant would have the last opportunity but according to law, it is equal to
one he did for his own negligence.
Davies vs Mann (1842)
In the instant case, the defendant while driving a wagon driven by horses too fast
killed the donkey of the plaintiff which was fettered at the side of the road on a
narrow highway. It was held that the defendant had the last opportunity to avoid
the accident by taking appropriate measures. In spite of his own negligence, the
plaintiff was held entitled to recover because the defendant had the ‘last
opportunity’ to avoid the accident.
