1.
Injury or death to one party is caused due to negligence of second party. But, sometimes, court faces a situation when both the parties in one way or other were negligent. In such situation, the court has to decide as to whose negligence caused the injury or death.
There are three possible answers to such an enquiry depending upon the circumstances of the case-
(i) The defendant's negligence alone caused the death or injury;
(ii) The deceased's or the plaintiff's negligence was solely responsible for the death or injury; and
(iii) The negligence of both the parties caused the death or injury.
Ø Plaintiff will succeed if the defendant's negligence was alone sufficient to cause injury or death , although there was some negligence on part of the plaintiff.
Ø Plaintiff will succeed if the injury or death caused to plaintiff was result of his own negligence, even if there was some negligence on the part of defendent.
Contributory negligence can also be defined as not avoiding the consequence arising from the defendant's negligence although the plaintiff had means and opportunity to do so.
Butterfield v. Forrester, (1809) 11 East 60-65.
In this case, the plaintiff was riding on his horse, violently collided against the pole and got injured. This pole was erected by defendant for some repair work to his house. On the road, there was sufficient light and the pole was visible from a distance of nearly 100 yards. The court rejected the plea of the plaintiff and held that the plaintiff could have avoided the accident by exercising due care.
Ellenborough C.J. stated that-".........a party is not to cast himself upon an obstruction which has been made by the fault of another and avail himself of it, if he does not himself use common and ordinary caution to be in the right. One person in fault will not dispense with another's using ordinary care for himself."
But, the above proposition is not in favour of plaintiff and he may lose action even for his slight negligence. Then, in the case Devis v. Mann, (1882) 10 M & W 546, the court modified the above rule and introduced the 'last opportunity rule'.
Q.
Devis v. Mann, (1882) 10 M & W 546.
The plaintiff left his donkey with two of its legs tied in a narrow street. The defendant was coming on his wagon at a very good speed. The wagon ran over the donkey, and donkey died. The Court found defendant liable as he had the last opportunity to avoid the accident by taking ordinary care. The Court observed-".........although the animal may have been wrongfully there, still the defendant was bound to go along the road at such a pace as would be likely to prevent mischief. Were this not so, a man may justify the driving over goods left on public highway, or even over a man lying asleep there, or purposely running against a carriage going on the wrong side of the road."
British Columbia Electric Co. v. Laoch, (1816) 1 AC 719.
Mr. Hall was in a cart with Mr. Sands. When they were crossing, they did not bother to see whether any tram car was approaching them. When the tram car saw them at level crossing, it was only 400 feet away and when the brake was applied, the tram could not be stopped as the brake was defective and the cart was knocked down.
The Jury found that the tram was at a very high speed and it could have been stopped, if the brakes were in order. At the same time, it was also observed that Mr. Sands was also negligent in not looking whether the line was clear. The defendants took the plea of contributory negligence. But the House of Lords observed that they could not take the defence of contributory negligence as they had the last opportunity to avoid the accident.
It has been seen that in the cases of contributory negligence, damages have also been divided depending upon the proportion of the negligence committed or contribution by both the parties.
Vidya Devi v. M.P. State Road Transport Corp., MANU/MP/0022/1975 : AIR 1975 MP 99.
A motorcyclist ran into a bus negligently and was killed. The bus driver was also found negligent in not averting the possible collision. The Court found that the deceased motorcyclist was more negligent than the bus driver. The blame was in two-third and one-third ratio (motorcyclist: bus driver)
(2/3 : 1/3). The Court thus awarded the damages to the extent of one-third only.
Vidya Soni v. Pushpesh Dwivedi, MANU/MP/0371/2008 : AIR 2008 MP 319.
The claimants-appellants initiated an action for grant of compensation for the death of the deceased who died in a vehicular accident. The tribunal has recorded a finding that the deceased did not have the licence nor was the motor-cycle insured and has held that the deceased has contributed 50% in causation of the accident. However, in appeal the court dislodging and unsettling the finding of the tribunal on that score hold that there has to be causal relationship between violation and accident caused. There has to be some act done by the person concerned in causing the accident. The commission or omission must have some nexus with the accident. In the case at hand, it is clear from the evidence brought on record that the offending vehicle, was coming in a great speed with one head light and dashed against the motor cycle. No evidence has been adduced to establish that the driver of the motor-cycle had acted in any manner due to which the accident was caused.
His presence alone at the place of accident would not tantamount to contributory negligence. Thus, there was absolutely no negligence on the part of the motor-cyclist.
Maya Mukherjee v. Orissa Co-op. Insurance Society Ltd., MANU/OR/0050/1976 : AIR 1976 Ori 224.
A motorcyclist and car collided with each other which resulted in death of motorcyclist. The Orissa High Court fixed the negligence of the motorcyclist at 60% and that of the car driver at 40%. The total damage estimated was
Rs. 75,000. Accordingly, the court awarded Rs. 30,000 to the motorcyclist's heirs.
It may be inferred from the above cases that the law depicted in the Law Reform (Contributory Negligence) Act, 1945 has been followed. It is due to the fact that the Parliament of India has not enacted any law to this effect; so that this unjust and draconian law could be avoided to get implemented by the Court. In 1988, the Government of India amended the Motor Vehicles Act, and minimized the rigour and trauma of common law and allowed a fixed amount of compensation of Rs. 50,000 in case of death and Rs. 25,000 in case of permanent disablement, to accident victims. Even in case of negligence committed by victim, the amount of compensation would not be affected.
3.
If the defendant has placed the plaintiff in a grave situation and the plaintiff tries to escape in a perilous way and has acted under a reasonable apprehension of danger and in a reasonable and prudent way, the defendant cannot set up a defence of contributory negligence.
Q.
Jones v. Boyce, (1816) 1 Stark 493.
In this case, the plaintiff was a passenger in defendant's coach. The driver was driving the coach so negligently that the plaintiff saw imminent danger to his life. In course of saving himself from the danger, he jumped off the coach and his leg was broken. After that the coach stopped. It was the defendant's plea that had the plaintiff remained in his seat, he would not have suffered much harm. The Court was of the view that the plaintiff's act was the demand of the hour and he was justified. Lord Ellenborough observed that "to enable the plaintiff to sustain the action it is not necessary that he should have been thrown off the coach, it is sufficient if he was placed by the misconduct of the defendant in such a situation as obliged him to adopt the alternative of a dangerous leap or to remain at certain peril; if that position was occasioned by the default of the defendant, the action may be supported".
4.
The rule of contributory negligence is not applied in case of children. Their inexperience is taken into account while deciding the cases involving them. Children are not considered as matured enough as an adult to judge the things correctly. When the plaintiff is a child, allowance must be made for his inexperience and infirmity of judgment.
A 6-year old child was crossing the road to reach his school, as the school was on the other side of the road. A motorcycle was coming on that road and it knocked down the boy who got severe injuries. When the action was brought against the defendant, the plea of contributory negligence was raised by the defence. But the Court rejected the plea on the basis that it was a child and it cannot be expected from him that he would behave in a matured manner as an adult. The motorcyclist, as a reasonable person, could have anticipated that during the school hour, children would cross the road and he failed to drive the vehicle cautiously. The Court observed-"There cannot be a case of contributory negligence on the part of children because a child cannot be expected to be as careful for his own safety as an adult and in such a case a plea of contributory negligence cannot be availed."
The defendant installed an electric pump in a room adjacent to the room which was left unattended and open. The plaintiff, a 6-year old child entered the room and put her hand in the running motor without appreciating any danger. She suffered physical injuries and lost two fingers of her right hand. The Court found the defendant liable and awarded a damage of Rs. 1,50,000 in favour of plaintiff for defendant's gross negligence.
An accident took place, when a motorcycle with three passengers riding on it collided with the bus. All three passengers on the motorcycle, the driver and two pillion riders including one child, died in the accident. Both the pillion riders i.e., grown up persons and child got full compensation as they were not found guilty of contributory negligence.
Q.
The Doctrine of Identification means that a servant with his master, agent with his principal and a child with his parents/guardian are identified depending on the case. The defence of contributory negligence can be pleaded not only when the plaintiff was himself negligent but also when the negligence has been contributed by his ward i.e., servant. Since the master is vicariously liable for the act of his servant the rule is that during the employment, negligence of a servant is imputed to his master, whether the master is the plaintiff or the defendant.
Two ships collided with each other and two persons from one ship got drowned due to collision. It was revealed later on that both the ships had committed wrong and were equally responsible for the accident. In an action by the representatives of the deceased persons, the defendant pleaded of contributory negligence. The House of Lords did not identify the victims with their carrier for its negligence for the purpose of the defence of contributory negligence and held the other ship liable for damages.
6.
The onus of proving the contributory negligence is on defendant and if defendant does not take the plea of contributory negligence then the plaintiff is not bound to prove it. In case of inability of the court to decide the extent of negligence committed by the parties, the defendant is likely to take the benefit.
Example-A is trying to catch a bus, the bus has just started and is gaining speed. A has just taken the hold of handle and is trying to put his foot on foot-board but suddenly he lost hold of the handle. His foot could not take his load as it was not firmly fixed. A fell down and got injured. In this case, A will be held liable for his fall from the bus, as he tried to board a moving bus. It was risky to catch a moving vehicle this way. The footboard would not have affected him, if the bus would not have been in motion, so the bus company would not be held liable.
7.
When the negligence is committed by two or more persons, then such negligence is called as composite negligence. The term 'composite negligence' is used in our country for both kinds of cases: independent tort feasors and joint-tort feasors. In composite negligence, liability of the tort feasors is joint and several. In such a situation, no body is allowed to say that there should be apportionment of damages and his liability should be on the basis of his fault. The judgment delivered against the composite tort feasors is for a single sum without any apportionment and it is the discretion of the plaintiff to enforce the whole of his claim against any one of the defendants. If one defendant has paid more than his share, he may claim contribution from the other defendants.
There was an accident due to negligent bus driver of a State Transport and a car driver. One person died due to this accident who was travelling in another car and also some other occupants of that car got injured. The tribunal appointed made apportionment of damages between bus and car owners. But the Guwahati High Court found that the Tribunal was in error in apportioning the damages between the two tortfeasors. The Court stated that this is a case of joint-tortfeasors and the liability of the owner of the car has not been established. The claimaints were held entitled to recover the entire amount of claim from the owner of the bus i.e., State of Assam. Simultaneously, the Court also said that this does not affect the right of the State to claim contribution from the other tortfeasor, i.e., the owner of the car.
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