PAGE1

Contributory and Composite

Negligence
In the partial fulfillment for the requirement of the project on the subject of Law of Torts of B.A. LL.B (Hons.), First
Semester.

Submitted to: - Submitted By:Ms. Sangeeta Taak Group No.-XII

Jaspreet Chadha: - 542.
Jatin Garg: - 552.
Shaili Kailasia: - 562.
Harendar Neel: - 572. PAGE2

PREFACE
We feel great pleasure in presenting the project under study. We hope that the readers will find the project interesting and
that the project in its present from shall be well received by all. The project contains the explanation and analysis relating
to Contributory and Composite Negligence under the Law of Torts.
Every effort is made to keep the project error free. We would gratefully acknowledge the suggestions to improve the
project to make it more useful. PAGE3

ACKNOWLEDGMENT
We have been taught the subject of Law of Torts by our Respected Lecturer, Ms. Sangeeta Taak who helped us all through
in the accomplishment of this project. Our sincerely thanks to the Respected Lecturer, who helped us to gather the various
sources which we could give final shape to the topic under study. She not only provided us a platform to compile but also
guided us at all levels.
We, also thank the members of the library staff and computer section for the cooperation in making available the books
and accessing the internet even during their free time.
We hope that the project in its present form shall be received by all. PAGE4

Table of Content
Chapter 1
1. Introduction to Negligence..8
1.1 Introductory......8
1.2 Definitions and Essentials of Negligence....10
Chapter 2
2. Contributory Negligence....14
2.1 Meaning and Nature......................14
2.2 Present Law- The UK Act of 1945...15
2.3 Application.......17
2.4 Causation of Damages.......18
2.5 Duty of Care.19
2.6 Rules of Contributory Negligence......19
2.7 Indian Position.......21
2.8 Dilemma Produced By Negligence....23
2.9 Contributory Negligence of Children..24
2.10 Doctrine of Identification...25
2.11 Last opportunity Rule..26
2.12 Basic Theories of Contributory Negligence....27
Chapter 3
3. Composite Negligence.29
3.1 Meaning.29
3.2 Nature of liability in composite negligence....29
3.3 Indian Position.31
3.4 Duty of care33
Chapter 4 PAGE5

4. Distinction between contributory and composite negligence

...35
Chapter 5
5. Conclusion and Suggestions..37
Bibliography.39 PAGE6

Table of cases:1) Admiralty Commissioner v. S.S Volute, [1992] 1 AC 129.

2) Amthiben v. Superintending Geophysicist, O.N.G.C. [1976] ACJ (72) (Guj.).
3) Bernia Mills v. Armstrong, [1881] 18 AC 1.
4) Bhagwat Swarup v. Himalaya Gas Co., AIR [1985] H.P. 41.
5) British Columbia Electricity Rly. Co. v. Loach, [1916] 1 AC 719.
6) Butterfield v. Forster, [1809] 11 East 60.
7) Davies v. Mann, [1842] 10 MandW 546.
8) Donoghue v. Stevenson, [1932] AC 532.
9) Donovan v. Union Cartage Co, [1933] 2 KB 71.
10) General Manager, Karnataka State Road Transport Corpn, v. Krishnan, AIR [1981] Kant 11.
11) Governor-General-in-Council v. Bibi Saliman, AIR [1949] Pat 388.
12) Haris v. Toronto Transit Commission, [1886] ACJ 264.
13) Harrold v. Watney, [1898] 2 QB 320.
14) Hedley Byrne and Co. Ltd. v. Heller and Partners, [1964] AC 465.
15) Hira Devi v. Bhaba Kant Das. AIR [1977] Gau 31.
16) Jeetkumari Poddar v. Chittagong Engg. And Elec. Supply Co. Ltd., AIR [1947] Cal 195.
17) Jones v. Boyce, [1816] 1 Stark 493.
18) Jones v. Livox Quarries Ltd, [1952] 2 Q.B. 608.
19) Lynch v. Nurdin, [1841] 1 QB 29.
20) Marcroft v. Scruttons Ltd, [1954] 1 Lloyds Rep 395.
21) Narinder Pal Singh v. Punjab State. AIR [1989] PandH 82.
22) New India Insurance Co. Ltd. v. Ashok Kumar Acharya. AIR [1994] Orissa 220.
23) Parsani Devi v. The State of Haryana. (1973) A.C.J. 531 (P. and H.).
24) Poonam Verma v. Ashwin Patel, AIR [1996] SC 2111.
25) Pramod Kumar Rasiklal Zaveri v. Karamsy Kunvarji Tak, [2002] 6 SCC 455.
26) Prayagdatta v. Mahendra Singh. [1996] ACJ 529 (M.P.).
27) Reeves v. Metropolitan Police Commissioner, [2000] 1 A.C. 360.
28) Rural Transport Service v. Bezlum Bibi, AIR [1980] Cal. 165.
PAGE7

29) SatbirSingh v. Balwant Singh. [1987] ACJ 1096.

30) Standard Chartered Bank v. Pakistan National Shipping Corp (Nos. 2 and 4), [2002] UKHL 43.
31) Stapley v. Gypsum Mines Ltd, [1953] 2 All ER 478.
32) Sushma Mitra v. Madhya Pradesh State Road Transport Corporation, AIR [1974] M.P. 68.
33) Thorogood v. Bryan, [1849] 8 CB 115.
34) Union of India v. Hindustan Liver Ltd. AIR [1975] Punj-Har. 259.
35) Union of India v. Supriya Ghosh, AIR [1973] Pat 129.
36) Vaughan v. Menlove, [1837] 3 Bing NC 468.
PAGE8

Chapter 1
INTRODUCTION TO NEGLIGENCE
1.1 Introductory
In the modern law of tort, the word negligence has two meanings. Firstly, it indicates the state of mind of a party in doing
act and secondly, it means a conduct which the law deems wrongful. Originally the word was generally used in its
subjective sense as a particular mode of doing another wrongful act. In this sense negligence means inadvertence or
carelessness. It means blameworthy inadvertence in the consequences of conduct insofar as a reasonable man would have
adverted to them.1
1.
2.

P.S.A. Pillai, Law of Tort, Eastern Book Company, Lucknow, 2009, p.160.
Ibid.

Negligence in the sense of conduct refers to the behavior of a person who, although innocent of any intention to bring
about the result in question, has failed nevertheless to act up to the standards set by law, which is usually that of a
reasonable man. When a statue, prescribes a certain standard of behavior with a view to avoiding injury to persons, it has
been said that the failure to come up to that standard is statutorily equivalent to negligence, without proof of
carelessness.2
Through civil litigation, if an injured person proves that another person acted negligently to cause his injury, he can
recover damages to compensate for his harm. Proving a case for negligence can potentially entitle the injured plaintiff to
compensation for harm to their body, property, mental well-being, financial status, or intimate relationships. However,
because negligence cases are very fact-specific, this general definition does not fully explain the concept of when the law
will require one person to compensate another for losses caused by accidental injury. Further, the law of negligence at
common law is only one aspect of the law of liability. Although resulting damages must be proven in order to recover
compensation in a negligence action, the nature and extent of those damages are not the primary focus of negligence
cases.
Negligence suits have historically been analyzed in stages, called elements, similar to the analysis of crimes. An important
concept related to elements is that if a plaintiff fails to prove PAGE9

any one element of his claim, he loses on the entire tort claim. For example, let's assume that a particular tort has five
elements. Each element must be proven. If the plaintiff proves only four of the five elements, the plaintiff has not
succeeded in making out his claim.
Now, negligence has become an independent, specific tort itself. Although it is cleared a mental element, still Judges in
deciding whether a man is guilty of negligent conduct or not apply an external standard and do not take into consideration
his real mental attitude at the moment of the act. Thus to determine whether a particular driver has been negligent in
driving his car along the public road, or whether a doctor has been negligent in performing a particular operation, they
apply an external standard of a reasonable man placed in similar circumstances.
If the Judge is of opinion that a reasonable man placed in similar circumstances as the defendant would not have acted in
that way and caused damage to the plaintiff, then the plaintiff is liable. The reason for the application of this external
standard by Judges in England was due to increase of railway accidents and other injuries from industrial machinery in
that country during the nineteenth century. Then it would be easy for even willful wrongdoers to say that they never
intended to do any harm to any person, much less to the particular plaintiff, it would never intended to do any harm to any
person, much less to the particular plaintiff, and it would be very difficult for the latter to prove the mental state of such a
defendant. The existence of a duty situation or a duty to take care is thus essential before a person can be held liable in
negligence.
The conduct of a reasonable man as envisaged in English common Law could be seen from the decision of Vaughan v.
Menlove.3 The plaintiff had some interested in certain cottages on land adjoining that on which the defendant had erected
a haystack. The plaintiffs cottages were damaged by a fire which had spread from the haystack which was insured. When
the condition of the stack, and the probable and almost inevitable consequence of permitting it to remain in its then state
were pointed out to him, he abstained from the exercise of the precautionary measures that common prudence and
foresight would naturally suggest, and very coolly observed that he would change it. It was manifest that he adverted to
his interest in the insurance office. The defendant was held liable. Tindal, C.J. while rejecting the argument of the
defendant that he had acted bona fide to the best of his judgment and that should be accepted, said thus: Instead,
therefore, of saying that the liability for negligence should be co-existence
3. [1837] 3 Bing NC 468. PAGE10

with the judgment of each individual, which would be as variable as the length of the foot of each individual, we ought
rather to adhere to the rule which requires in all cases a regard to caution such as a man of ordinary prudence would
observe.
Lord Macmillan remarked thus in Glasgow Corpn. v. Muir4: The standard of foresight of the reasonable man eliminates
the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question. A
reasonable man does not mean a paragon of circumspection. He can be calm, cool, collected and is expected to take
normal precautions for his own safety even in an emergency.5
4. [1943] AC 448.
5. Billions and Sons
6. AIR [1996] SC 2111.
7.

v. Riden, [1958] AC 240.

M.N. Shukla, The Law of Torts, Central Law Agency, Allahabad, 2008, p.243.

In Poonam Verma v. Ashwin Patel6 the negligent doctor caused the death of a patient by prescribing medicines of the
discipline for which he was not registered under the law. His negligence was held to be negligence per se which is defined
in Black Law DICTIONARY as under: Negligence per se: conduct, whether of act or omission, which may be declared
and treated as a negligence without any argument or proof as to the particular surrounding circumstances, either because
it is a violation of a statue or valid municipal ordinance, or because it is so probably opposed to the dictates of common
prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it. As a general
rule, the violation of a public duty, enjoyed by law for the protection of person or property, so constitutes. 7
1.2 Definition and Essentials of Negligence
According to Blackburn:Those who go personally or bring property where they know that they or it may come into collision with the persons or
property of others have by law a duty cast upon them to use reasonable care and skill to avoid such a collision. Through
civil litigation, if an injured person proves that another person acted negligently to cause his injury, he can recover
damages to compensate for his harm. Proving a case for negligence can potentially entitle the injured PAGE11

plaintiff to compensation for harm to their body, property, mental well-being, financial status, or intimate relationships.
Negligence is assessed against an objective standard, having regards to the circumstances and to the standard of care
which would reasonably be expected of a reasonable person in similar circumstances. Normally the question of existence
of a duty situation in a given case is decided on the basis of existing precedents concerning similar situations; but it is now
well accepted that new duty situations can be recognized. 8
8 Ibid.
9.

[1932] AC 532.

An important concept related to elements is that if a plaintiff fails to prove any one element of his claim, he loses on the
entire tort claim. For example, let's assume that a particular tort has five elements. Each element must be proven. If the
plaintiff proves only four of the five elements, the plaintiff has not succeeded in making out his claim. The elements that
must be established in every negligence case are: duty, breach, causation, and damages. Negligence can be conceived of
as having just three elements - conduct, causation and damages. More often, it is said to have four (duty, breach, causation
and pecuniary damages) or five (duty, breach, actual cause, proximate cause, and damages). Each would be correct,
depending on how much specificity someone is seeking. Thus its ingredients are:1) Duty of care to the plaintiff:It means a legal duty rather than a mere moral, religious or social duty. The plaintiff has to establish that the defendant
owed to him a specific legal duty to take care, of which he has made a breach. There is no general rule of defining such
duty. It depends on each case whether a duty exists.
The case of Donoghue v. Stevenson9 [1932] illustrates the law of negligence, laying the foundations of the fault principle.
In his ruling, Justice Lord MacMillan defined a new category of the law of torts because it was analogous to previous
cases about people hurting each other. He then went on to define Neighbor as persons who are so closely and directly
affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my
mind to the acts or omissions that are called in question. Reasonably foreseeable harm must be compensated. This is the
first principle of negligence. PAGE12

2) Breach of duty:The defendant must not only owe the claimant a duty of care, he must be in breach of it. The test for deciding whether
there has been a breach of duty is laid down in the oft-cited dictum of Alderson B. in Blyth v. Birmingham Waterworks
Co. 10Negligence is the omission to do something which a reasonable man, guided upon those considerations which
ordinarily regulate the conduct of human affairs, would not do, or doing something which a prudent and reasonable man
would not do. Negligence is the omission to do something which a reasonable man, guided upon those considerations
which ordinarily regulate the conduct of human affairs would do or doing something which a prudent and responsible man
would not do. The law requires the caution which a prudent man would observe. The standard is objective and it means
what a judge considers should have been the standard of a reasonable man.
10.

[1856] 11 Ex. 781 at 784.

The law requires taking of two points into consideration to determine the standard of care required:a) The importance of the object to be attained
b) The magnitude of the risk
c) The amount of consideration for which services, etc. are offered.
3) Damage:To claim compensation a person must suffer harm. Recovery of compensation depends upon the type of harm suffered.
These harms may fall in following cases:a) Physical harm, i.e. harm to body;
b) Harm to reputation.
c) Harm to property, i.e. land and buildings and interests pertaining thereto, and his goods;
d) Economic loss; and
e) Mental harm or nervous shock.
PAGE13

The fact of economic loss was recognized in Hedley Byrne and Co. Ltd. v. Heller and Partners11, wherein a banker
negligently gave a reference to one who acted thereon and suffered damage; it was held that the duty is plain and the
damage was not too remote. In other words it was held by that a duty of care in making statements was a legal possibility.
11. [1964] AC 465.
12.

Dillon v. Legg, 68 Cal. 2d 728 [1968] and Molien v. Kaiser Foundation Hospitals, 27 Cal. 3d 916 [1980].

Emotional distress has been recognized as an actionable tort. A claimant who suffered only emotional distress and no
pecuniary loss would not recover for negligence. However, courts have recently allowed recovery for a plaintiff to recover
for purely emotional distress under certain circumstances. The state courts of California allowed recovery for emotional
distress alone even in the absence of any physical injury, when the defendant physically injures a relative of the plaintiff,
and the plaintiff witnesses it12. PAGE14

Chapter 2
Contributory Negligence
2.1 Meaning and Nature
Contributory negligence is carelessness by a plaintiff which has contributed to and is in whole or in part the cause of the
injury or harm he complains of, as having been caused to him by the defendants fault. It is ones failure to avoid getting
hurt by the defendant or it is the fault of the claimant in the very occurrence of the accident. 13 This rule of contributory
negligence first appeared at the beginning of the nineteenth century, though the general idea is traceable much earlier. The
courts modified the defense of contributory negligence by the so-called rule of last opportunity.
13.

Choudhari Fuljibhai v. Fakirmohaned, [1982] GLH 578.

Governor-General-in-Council v. Bibi Saliman, AIR [1949] Pat 388.
15. S.P. Singh, Law of Tort, Universal Law Publishing Co. Pvt. Ltd, New Delhi, 2006, p.178.
16. [1809] 11 East 60.
14.

This is a defense in which the defendant has to prove that the plaintiff failed to take reasonable care of his own safety and
that was a contributing factor to the harm ultimately suffered by the plaintiff. If the defendants negligence was the cause
of accident, the plaintiff can recover in spite of his own negligence. 14 The topic of contributory negligence is a
multifarious topic. It extends its tentacles to the topics of defenses to a tort, damages in tort, special defense to the tort of
negligence and too limiting, modifying and defining the topic of negligence. 15
The first case in which the principles of contributory negligence were evolved was Butterfield v. Forster16.In this case; A
wrongfully obstructed a road by placing a pole across it. B came along that road towards evening riding his horse at such
an excessive speed that he was overthrown due to the pole and injured. There was sufficient daylight to see the obstruction
at a distance of 100 yards. In the action that was brought by B, the injured, claiming damages against A, it was held that
the latter was not liable; for despite As negligence B could have avoided the accident by taking due care of him. Bayley,
J. said: - If he had used ordinary care he must have seen the obstruction; so that the accident appeared to happen entirely
from his own fault. PAGE15

While awarding compensation in Pramod Kumar Case17 wherein a truck dashed against a car the Supreme Court observed
that the question of contributory negligence arises when there has been some act or omission on the claimants part which
has materially contributed to the damage caused, and is of such a nature as could probably be described as negligence.
Negligence ordinarily means breach of a legal duty to care but when used in the expression contributory negligence, it
does not mean any breach of duty. It only means the failure by a person to use reasonable care for the safety of either
himself or his property so that he becomes blameworthy in part as an author of his own wrong.
17 .
18.

Pramod Kumar Rasiklal Zaveri v. Karamsy Kunvarji Tak, [2002] 6 SCC 455.
[1886] ACJ 264.

Subject to non- requirement of the existence of duty, the question of Contributory negligence is to be decided on the same
principle on which the question of the defendant is decided. The standard of a reasonable man is as relevant in the case of
a plaintiffs contributory negligence as in the case of a defendants negligence. But the degree of want of care which will
constitute contributory varies with the circumstances and the factual situation of the case.
In Haris v. Toronto Transit Commission18, the Supreme Court of Canada has held that if a boy sitting in a bus projected
his arm outside the bus in spite of warning and is injured, he is guilty of contributory negligence.
2.2 Present Law- The UK Act of 1945
Section 1(1) of the Act of 1945 provides as follows:Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or
persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage,
but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable
having regard to the claimants share in the responsibility of damages.
By s.4 Damage includes loss of life and personal injury. It also includes economic loss 19 and injury to property. By the
same section fault means negligence, breach of statutory duty or PAGE16

19.

Platform Home Loans Ltd v. Oyston Shipways Ltd [2000] 2 AC 190.

S.P. Singh, Law of Tort, Universal Law Publishing Co. Pvt. Ltd., New Delhi, 2006, p.231.
21. Corporacion Nacional de Cobre de Chile v. Sogemin Metals Ltd [1997] 1 WLR 1396. The identical New Zealand statue was held not to
apply to the economic torts in Dellabarca v. Storemen and Packers Union [1980] 2 NZLR 734.
22. Bank v. Fairclough Building Ltd [1995] QB 214Barclays.
20.

23. [2000] 1 AC 360.

24.

[2002] UKHL 43.

other act or omission which gives rise to a liability in tort or would, apart from the Act, give rise to the defense of
contributory negligence.20
The scope of the Act is wide, but not unlimited, for there were a number of torts where at common law the defendant
could not escape liability by showing contributory negligence on the part of the claimant and this is carried over into the
statutory regime. Thus the 1945 Act is inapplicable to intentional interference with goods, to deceit or to other claims
based upon dishonesty, whether framed as conspiracy including breach of contract or in some other way. 21 After some
hesitation, the courts seem now to accept that the Act may be applicable to cases of contributory negligence, given
sufficiently serious conduct on the part of the claimant. The act does not apply to claims for breach of contract where the
defendants liability arises from some contractual provision which does not depended negligence on his part 22. The
difference in principles available to contributory fault in contract and tort has, like limitation of actions, been a significant
source of litigation over the boundary between those two heads of liability.
Turning to the conduct of the claimant to which the Act applies, it is not confined to contributory negligence. Where the
claimant intends to do harm to him and that does not break the chain of caution entirely, the Act is applicable, so that in
Reeves v. Metropolitan Police Commissioner,23 where the defendants were in breach of duty to prevent the sane deceased
killing himself, the damages were reduced by 50 percent.
There was intentional wrongdoing by the claimant in Standard Chartered Bank v. Pakistan National Shipping Corp (Nos.
2 and 4)24 but, unlike in Reeves, it was not intentional as to the loss suffered. Ship-owners knowingly presented to the
claimant Bank an incorrectly dated bill of lading and the Bank (not having noticed the falsity) paid the seller of the goods
under a letter of credit issued by a Vietnamese bank. The claimant Bank then presented the various shipping documents to
the Vietnamese bank, concealing the fact that some of these did not PAGE17

conform to the letter of credit. The Vietnamese Bank noticed discrepancies and refused to pay the claimant Bank noticed
discrepancies and refused to pay the claimant Bank on the letter of credit. When the claimant Bank sued the ship-owners
for deceit the latter contended that since the claimant Bank had themselves unsuccessfully attempted to deceive the
Vietnamese bank, their loss25 was at least partly their own fault under the 1945 Act. However, while the claimants
intended to deceive the Vietnamese bank, they did not intend to lose their payment under the credit; with regard to that,
they were negligent and the case was governed, without reference to Reeves, by the ordinary rule that a fraudster cannot
rely on the contributory negligence of his victim.
25. i.e. the amount of the payment under the credit, less whatever was released by the sale of the cargo.
26. [1842] 10 MandW 546.
27.

[1916] 1 AC 719.

2.3 Application
Rigid application of this doctrine created injustice. In Davies v. Mann26, therefore, the doctrine of last opportunity was
introduced. It was approved by the House of Lords. In British Columbia Electricity Rly. Co. v. Loach27 the doctrine was
modified. In this case one Sands was being driven in a wagon by X whom, by the negligence of both himself and Sands
got the wagon on the railway companys level crossing when the companys train was approaching the crossing at the rate
of thirty-five to forty miles per hour. The engine driver first saw the wagon when the train was about 400 feet from the
crossing. He at once applied the brakes. If the brakes had been in good order he would have stopped the train at a distance
of about 300 feet they were defective and the train therefore hit and killed Sands whose representative sued the company.
The company was held liable for they would have had the last opportunity of avoiding the accident but for their initial
negligence in starting with defective brakes. It came to be known as the Doctrine of Constructive Last Opportunity.
The Law Reform (Contributory Negligence) Act, 1945 remedied the injustice produced by the Constructive Last
opportunity Rule, in regard to negligence on land and made the parties liable to bear the loss in proposition to their degree
of fault. The detection of fault of each party PAGE18

and appointment of damages now reflect the comparative importance of each partys fault. The position is now
equitable.28
28.

D.D. Basu, The Law of Torts, Kamal Law House, Kolkata, 2010, p.71.
OConnel v. Jackson [1972] 1 QB 270; Capps v. Miller [1989] 2 All E.R. 333.
30. Froom v. Butcher [1976] QB 286.
31. Davies v. Swan Motor Co [1949] 2 KB 291.
32. Owens v. Brimmel [1977] QB 859. See also Gregory v Kelly [1978] R.T.R. 426 (knowledge of defective brakes).
29.

33. [1952] 2 QB 608.

34.

Moor v. Nolan [1960] 94 ILTR 153.

2.4 Causation of Damages:

In the majority of cases the claimants negligence will have contributed to the accident which led to his injury (as where a
driver or pedestrian fails to keep a proper look-out or an employee omits to turn off a machine before cleaning it) but this
is not necessary for a finding of contributory negligence: what is essential is that the claimants conduct contributes to his
damage. Thus there may be a reduction where a motor cyclist fails to wear a crash helmet, 29 where a passenger in a car
does not wear his seat belt,30 or where a man rides in a dangerous position on the outside of a dust cart, 31 or rides with a
rider whom he knows to have taken substantial quantities of alcohol. 32
In Jones v. Livox Quarries Ltd33, the claimant was riding on the tow bar at the back of a traxcavator vehicle in order to
return from his place of work to the canteen when the driver of another vehicle negligently drove into the back of the
traxcavator and caused him injury. Though the obvious danger arising from riding on the tow bar was that of being thrown
off, it was held that the risk of injury from the traxcavator being run into from behind was also one to which the claimant
had exposed him and his damages were reduced accordingly. The result would have been otherwise, for example he had
been hit by a shot from a negligent sportsman. 34
While it always seems to have been accepted that only causative fault has any role to play in cases of contributory
negligence, the Court of Appeal has held that under the similar regime of contribution by multiple tortfeasors under the
Civil liability (Contribution) Act 1945 non-causative fault may be taken into account. The limits (or indeed the validity) of
the proposition are not clear and it would probably be difficult to convince the court that the same should apply in the
context of contributory negligence. PAGE19

2.5 Duty of Care:The existence of a duty of care is, of course, essential to a cause of action for negligence, but for contributory negligence
it is quite unnecessary that the claimant should owe a duty of the defendant. All that is required is that the claimant should
have failed to take reasonable care for his own safety. One sometimes comes across references to the claimant owing
himself a duty to take care of his safety, but strictly speaking this, like the duty to mitigate, is a contradiction in terms.
A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a
reasonable, prudent man, he might be hurt himself and in his reckonings he must take into account the possibility of
others being careless. The degree of want of care which will constitute contributory negligence varies with the
circumstances. As with any other aspect of the law of negligence the standard of care demanded may be adjusted to meet
changing needs.35
35.

Retrieved from, http://sixthformlaw.info/02_cases/mod3a/aqa/_cases_remedies_contrib.htm, at 1:21 on Oct 25, 2010.

Radley v. L. and.N. W. Rly. [1876] 1 AC 754.
37. [1992] 1 AC 129.
36.

2.6 Rules of contributory Negligence:The rule of contributory negligence deduced from decided cases may be stated thus: The ultimate question is who caused
the accident?
(1) If it were the defendant, the plaintiff can recover in spite of his own negligence. (Davies v. Mann and Radley case36 .)
(2) If it were plaintiff, he cannot recover in spite of the defendants negligence. (Butterfield v. Forrester.)
(3) If it were both plaintiff and the defendant, the plaintiff cannot recover. (A) Admiralty Commissioner v. S.S Volute37 (B)
Eurymedon case.
In the former case, Admiralty Commissioner v. S.S. Volute, a collision occurred between the Radstock, a destroyer, and the
Volute, a merchant ship under convoy. The collision was due to the fault of the Volute in changing her course without
giving the proper whistle signal, and to PAGE20

the immediately subsequent fault of the Radstock in increasing her speed with knowledge of the danger caused by the
Volutes change of course. It was held that both ships were to blame, although the last opportunity of avoiding the collision
was with the Radstock. There was not sufficient separation of time, place or circumstance between the negligent
navigation of the Radstock and that of the Volute to make it right to treat the negligence on board the Radstock as the sole
cause of the collision.38
38. T. Weir, A Casebook on Tort, Sweet and Maxwell Ltd., London, 2004.
39.

[1953] 2 All ER 478.

Stapley v. Gypsum Mines Ltd.39 is a decision of the House of Lords in which the majority of their Lordships explained and
applied the rule of contributory negligence in the light of the new enactment in England. In that case the deceased Mr.
Stapley and another Dale were both working in a gypsum mine. The roof of the place where they were working was found
unsafe and the foreman asked them to remove it. After attempting unsuccessfully to remove it they gave up and the
deceased Stapley resumed his work beneath the roof with the result that he died as the result of the fall of the defective
roof. In dropping the work of removal of the roof both workmen were guilty of breach of their statuary duty. In an action
by the widow of the deceased workman against the G.M. Ltd., it was held that both the deceased and Dale were equally
negligent and in breach of their statuary duty, and the negligence of the one was so mixed up with the negligence of the
other that the negligence of the deceased could not be regarded as an independent act, unrelated and distinct from their
negligence, so as to make it the sole real or effective cause of the accident and therefore Dales fault should be regarded
as having contributed to the accident and hence the respondents (the company) being his employers, were also liable to
the widow in damages.
We must note that the plea of common employment was not available to the defendants (respondents) as it had been
abrogated in England by the Law Reforms (Personal Injuries) Act of 1948. The defendants were made liable on the
principle of vicarious liability of their employee Dale, who was the fellow workman of the deceased. Their contention that
the deceaseds negligent act of resuming work under the roof was the substantial cause of the accident was rejected by the
majority. But the share of the deceased in the negligent act which brought about his death was fixed at 80% and his widow
was held entitled to recover only 20% of the total PAGE21

amount of damages fixed by the trial court. This apportionment was made under the Law Reforms (Contributory
Negligence) Act, 1945.
The law imposes on a plaintiff the obligation to take all reasonable steps to mitigate the evil; it debars him from claiming
any part of the damages which was caused due to his own neglect or lapses. In Marcroft v. Scruttons Ltd.40 the plaintiff
fell down a ships hatch. The hurt appears to be not very serious. But he subsequently developed neurosis which rendered
him a nervous shock He was advised by a psychiatrist to attend a hospital for treatment. This was not acted upon. The
court held that the refusal was unreasonable and it was proper to assess the damages upon the basis that loss subsequent to
the refusal must fall upon the plaintiffs himself. 41
40.

[1954] 1 Lloyds Rep 395.

Retrieved from, http://www.duhaime.org/LegalDictionary/C/ContributoryNegligence.aspx, at 2:41 on Oct 25, 2010.
42. Jeetkumari Poddar v. Chittagong Engg. and Elec. Supply Co. Ltd., AIR [1947] Cal 195.
41.

2.7 Indian Position:In India, there is no Central Legislation corresponding to the Law Reform (Contributory Negligence) Act, 1945 of
England. The position brought about by the Law Reform Act in England is very just and equitable. The Kerala Legislature
has taken a lead by passing The Kerala Torts (Miscellaneous Provisions) Act, 1976. Sec. 8 of the Act makes provision for
apportionment of liability in case of contributory negligence. The provision is similar to the one contained in the English
Law Reform Act of 1945. In various cases which have come before various High Courts in India, the doctrine of
apportionment of damages, on the lines of the Law Reform Act has been followed and contributory negligence has been
considered as a defense to the extent the plaintiff is at fault.
In India, however, courts accepted this position with hesitation as could be observed in Jeet Kumari42 and Bibi Saliman
cases. In the first case A took a bath and was coming to her shop wet and with a vessel full of water on her head. She took
a short cut but while doing so she took support of an electric wire (belonging to an electric company B) in order to climb a
raised platform. The wire being live A was instantaneously killed. It was argued that she was guilty of contributory
negligence but the court decided that there was no duty cast on anyone to move PAGE22

always with a dry body, there was nothing wrong in taking a short and the real test in contributory negligence was that,
though there was negligence on both the sides, whether A could have reasonably avoided the consequences of Bs
negligence. And here, mere absence of negligence on As part would not be sufficient to show that A was guilty of
contributory negligence. Moreover A had no knowledge of danger caused by Bs negligent act of letting a live electric
wire fall from a pole on the land in the way.43
43.

A. Singh, Introduction to Law of Torts, Wadhwa and Company Law Publisher, New Delhi, 2001, p.67.
See also B.N. Rly. Ltd. v. Tara Prasad, AIR [1928] Cal 594- where it was held that allowing persons to cross the line at unmanned
railway crossing and not blowing a whistle by the engine driver, was no negligence in him.
45. Brij Mohan Sahni v. Mahinder Kumar, [1966] ACJ 83 (Punj).
46. Union of India v. Laxman, AIR [1954] Vindh Pra 17.
44.

47. AIR [1980] Cal. 165.

48.

Retrieved from, http://chestofbooks.com/society/law/Popular-Law-4/Section-87-Contributory-Negligence.htm, at 23:50 on Oct 26, 2010.

In the second case the plaintiff claimed damages from the Government on the ground that her son aged 18 was killed in
the Kiul station yard by a pilot engine. The court held that there was no negligence of the railway and the plaintiff failed.
However, the court observed that the admiration would make ex gratia compensation to the plaintiff. 44
The position in India as it stands today is that the rule of last opportunity was discarded by Brij Mohan case45 by the
Punjab High Court and after Laxman case46 practically all the High Courts apportion the liability according to the degree
of fault of the parties. In spite of this there has been no legislation in this regard in India. This position has been criticized.
In Rural Transport Service v. Bezlum Bibi,47 the conductor of an over-crowded bus insisted passengers to travel on the
roof of the bus. The driver ignored the fact that there were passengers on the roof and tried to overtake a car. As he
swerved the bus on the right for the purpose and went on the Kutcha Road, a passenger sitting on the roof was hit by the
branch of a tree, he fell down, and he received severe injuries, and then died. It was held that both the driver and the
conductor were negligent towards the passengers negligence on the part of the passengers including the deceased, who
took the risk of travelling on the roof of the bus. The compensation payable by the defendants was reduced by 50% and
they were asked to pay Rs. 8,000 instead of Rs. 16,000. 48 PAGE23

In Bhagwat Swarup v. Himalaya Gas Co.,49 the defendant company sent its deliveryman to deliver the replacement of a
gas cylinder to the plaintiff at his residence. The cap of the cylinder was defective. The deliveryman obtained an axe from
the plaintiff for opening the cylinder and hammered the cap with the axe. The gas leaked from there and caused fire
resulting in the death of the plaintiffs daughter, injuries to some other family members and damage to his property. It was
held that mere fact that the plaintiff gave an axe/hammer to the deliveryman on asking did not imply contributory
negligence on the part of the plaintiff, because the plaintiff was a lay man but the deliveryman was a trained person and
supposed to know the implications of the act being done by him.
49. AIR [1985] H.P. 41.
50. AIR [1974] M.P. 68.
51. AIR [1973] Pat. 129.
52.

J.N.Pandey, Law of Torts and Consumer Protection Act, Central Law Publications, Allahabad, 2005, p.195.

In Sushma Mitra v. Madhya Pradesh State Road transport Corporation, 50the plaintiff was travelling in a bus resting her
elbow on a window still. The bus at the time was moving from the opposite direction. When sued for the injury, the
defendant took the plea that the act of resting on a window still was an act of contributory negligence. The Madhya
Pradesh High Court did not allow this defense. It was held that as she acted like a reasonable passenger whiles the bus
moving on the highway, she was entitled to compensation.
In Union of India v. Supriya Ghosh51 the deceased was passing through a railway level-crossing in his car at about 8:45
p.m. The car was knocked down by a mail train and the deceased was seriously injured and later died of those injuries.
The level-crossing was a manned one with the gates. At the time of the accident the gates were open and the gateman was
not present there. It was contended by the defendant that, but for the contributory negligence on the part of the deceased,
the accident could not have taken place. He ought to have noticed the headlight of the engine. 52
2.8 Dilemma Produced by Negligence:Where a person is placed in a perilous situation or in a dilemma due to the negligent act of another and the person in
danger, just to save himself, in the agony of the moment moves in a manner which turns out to be dangerous and sustains
injuries, he will be able to get damages PAGE24

from the other although he could have avoided the harm if he had remained calm and quiet in his original place.
In Jones v. Boyce53 the plaintiff, a passenger on the top of the defendants coach, was placed by the negligence of the
defendant in a perilous alternative of to jump or not to jump. He jumped and was injured. Had he kept his seat he would
have escaped. But he was able to recover from the defendant for he had acted reasonably and not from a rash
apprehension of danger. The court does not demand of the plaintiff the care of a superman, but of a superman, but of a
man of ordinary nerve and presence of mind.
53. [1816] 1 Stark 493.
54. [1841] 1 QB 29.
55. [1898] 2 QB 320.
56.

[1933] 2 KB 71.

2.9 Contributory Negligence of Children:When the plaintiff is a child or other person under some form of personal incapacity, it is sufficient if he shows as much
care as a person of that age may reasonably be expected to show. For example, in Lynch v. Nurdin,54 the defendant
negligently left his horse and cart unattended in the street and the plaintiff, aged seven, climbed into it while another boy
made the horse move on and so caused the plaintiff to fall down and suffer injuries; it was held that the defendant was
liable.
Again, in Harrold v. Watney,55 the defendant occupied land adjoining the highway and surrounded by the fence which was
rotten and dangerous and therefore a nuisance to the highway. The plaintiff, a boy aged four, climbed upon the fence in
order to look over it and the fence fell with him and injured him. It was held that he recovers.
But in such cases there will be no liability to the child unless the thing through which the accident happens is likely to
attract children to intermeddle with it and is dangerous if intermeddled with. So in Donovan v. Union Cartage Co.56 where
a child of seven years climbed on to an unhorsed van which had been left unattended in a street and fell and was injured, it
was held that the defendants were not liable. PAGE25

In Gough v. Thorne57, while dealing with the negligence on the part of a child and the degree of a childs responsibilities,
Lord Denning , M.R. said that:57. [1967] ACC CJ 138.
58.

Retrieved from, http://guest1.lawyersclubindia.com/experts/Composite-Negligence-Contributory-Negligence-116991.asp, at 15:31 on Oct

27, 2010.
59. [1849] 8 CB 115.

A very young child cannot be guilty of contributory negligence. An older child may be; depends on the circumstances. A
judge should only find a child guilty of contributory negligence if he or she is of such an age as reasonably to be expected
to take precautions for his or her own safety; and then he or she is only to be found guilty if blame should be attached to
him or her. A child has not the road sense or the experience of his or her elders. He or she is not to be found guilty unless
he or she is blameworthy.58
Note:If the injury is due partly to the negligence of the childs parent or guardian in failing to look after it and partly to the
negligence of the defendant the child may still recover his whole loss against the defendant, for he is not identified with
the negligence of his parent or guardian and the case follows the normal rule that a claimant may sue and execute
judgment against either of two concurrent tortfeasors for the whole sum.
2.10 Doctrine of identification:The doctrine of identification means that a servant, agent or child is identified with his master, principal or
guardian/custodian, as the case may be. The defense of contributory negligence can be pleaded not only when the plaintiff
himself has been negligent but also when there is negligence on the part of plaintiffs servant. Thus, as between the
plaintiff and the defendant, each is identified with any third person for whom he is vicariously liable. But, can the
contributory negligence of an independent contractor engaged by the plaintiff affect the plaintiffs action? In Thorogood v.
Bryan59, plaintiff was identified with such an independent PAGE26

contractor and the negligence of the independent contractor could be pleaded as a defense to an action brought by the
plaintiff.60
60. R. Ranchhoddas
61. [1881] 18 AC 1.
62.

and D. Keshavlal Thakore, The Law of Torts, Wadhwa and Company Nagpur, New Delhi, 2007, p.176.

V. Harpwood, Principles of Tort Law, Cavendish Publishing Ltd., London, 2000, p.145,

But this case was overruled by the House of Lords in Bernia Mills v. Armstrong.61The facts were that two ships were
drowned. It was found that both the ships were at fault. In an action by the representatives of the deceased persons, the
defendant pleaded contributory negligence. The House of Lords did not identify the deceased with their carrier for its
negligence for the purpose of the defense of contributory negligence, and held the owners of the ship, other than that in
which they were passengers, liable for damages.
2.11 Last Opportunity Rule:According to this rule, when two persons are negligent, that one of them, who had the latter opportunity of avoiding the
accident by taking ordinary care, should be liable for the loss. It means that if the defendant is negligent and the plaintiff
having a later opportunity to avoid the consequences of the negligence of the defendant does not observe ordinary care, he
cannot take make the defendant liable for that. Similarly, if the last opportunity to avoid the accident is with the defendant,
he will be liable for the whole of the loss to the plaintiff.
The case of Davies v. Mann, explains the rule. In that case, the plaintiff fettered the fore-feet of his donkey and left it on a
narrow highway. The defendant was driving his wagon driven by horses too fast that it negligently ran over and killed the
donkey. In spite of his own negligence, the plaintiff was held entitled to recover because the defendant had the last
opportunity to avoid the accident. If that were not so, said Parke, a man might justify the driving over goods left on a
public highway or even over a man lying asleep there, or purposely running against a carriage going on the wrong side
of the road.62
The rule of last opportunity was also very unsatisfactory because the party, whose act of negligence was earlier, altogether
escaped the responsibility and whose negligence was subsequent was made wholly liable even though the resulting
damage was the product of the PAGE27

negligence of both the parties. In case of maritime collisions, the position was remedied in 1911 by the Maritime
Convections Act, 1911 according to which where some damage has been caused due to the fault of two or more vessels,
the liability to make good that loss or damage would be in proportion to the degree in which each vessel was in fault.63
63.

Section 1, Maritime Convections Act, 1911.

2.12 Basic Theories of Contributory Negligence:Various theories have been advanced by jurists as to the basic principle of contributory negligence. Some of the important
theories and criticisms are as follows:2.12.1 Penal Theory:Under this theory, a person who has once been negligent should be punished severely for his fault and should not be
permitted to recover damages. In pari delict potior est condito defendants means that where both parties are equally at
fault, the condition of the defendant is the best. But this theory of punishment did not hold well in very many cases where
the plaintiff (as in Davies v. Mann) was able to recover damages in spite of his own contributory negligence.
2.12.2 Public Policy:In order to induce self-vigilance amongst members of the public and thereby minimize accidents on the highway, courts
were inclined to give stress to this principle of contributory negligence. But in the actual decision of cases only few judges
have laid down this as the reason for making a party liable, although a few have referred to this aspect along with the
others.
2.12.3 Principle applicable to Joint Tortfeasors:In actions of contributory negligence, both the plaintiff and the defendant should be deemed to be joint tortfeasors and as
such neither party should be allowed to recover damages against the other. This is a far-fetched theory for it is obvious
that in such cases the parties have not the necessary previous intention to cause injury to the other which is one of the
essential ingredients with regard to the actions by joint tortfeasors. PAGE28

2.12.4 Volenti non fit injuria:The theory of plaintiffs implied or express consent to undergo the injury is also sometimes advanced as the probable
basic principle of contributory negligence. But this cannot be a true basis for there are essential differences between the
two defenses (see Davies v. Mann). The defenses of contributory negligence confess and avoid a prime facie liability; it
excludes the idea of deliberation and relies upon the failure of the plaintiff to exercise reasonable care. On the defense of
Volenti non fit injuria, viz., that the plaintiff has willed to run the risk, none of these statements are true. 64
64. J. Murphy,
65. [1940] AC 165.
66.

Street on Torts, Oxford University Press, New York, 2006, p.201.

P.S.A. Pillai, Law of Tort, Eastern Book Company, Lucknow, 2009, p.165.

2.12.5 Causation:Of all the theories mentioned above, the causation theory seems to be the most probable basic principle of contributory
negligence. Lord Atkin said (in Caswell v. Powell Duffryn Associated Collieries Ltd. 65 ) thus:
I find it impossible to divorce any theory of contributory negligence from the concept of causation. It is negligence which
contributes to cause the injury. And whether you ask whose negligence was responsible for the injury or from whose
negligence did the injury result, or adopt any other phrase you please, you must in the ultimate analysis be asking who
caused the injury. The question for the court to determine is not whose fault was it? but who caused it? 66 PAGE29

Chapter 3
Composite Negligence
3.1 Meaning :When the negligence of two or more persons results in the same damage, there is said to be Composite Negligence, and
the persons responsible for causing such damage are known as Composite Tortfeasors. In England, such tortfeasors could
be classified into two categories: - joint tortfeasors and independent tortfeasors, and there were different rules governing
the liability of these two categories of tortfeasors. The liability of these two categories of persons has been made
somewhat similar through legislation, i.e. the Law Reform (Married Women and Tortfeasors) Act, 1935 and Civil Liability
(Contribution) Act, 1978. The courts in India have not followed the statutory law of England wherever it was against the
principles of equity, justice and good conscience. The distinction between joint tortfeasors and independent tortfeasors is
not of much relevance in India. The term composite negligence has been used in India to cover both kinds of cases of
independent tortfeasors and joint tortfeasors. Sometimes, the courts have been unmindful of the fact that the terms joint
tortfeasors and independent tortfeasors have different connotations, the term Composite or joint tortfeasors has been used
to connote a situation, which is in fact one of independent tortfeasors. 67
67. G.H.L. Fridman, Fridman on Torts, Waterloo Publishers, London, 1990, p.234.
68.

AIR [1977] Gau 31.

3.2 Nature of liability in composite negligence:The liability of the tortfeasors in composite negligence cases is joint and several. No one is allowed to say that there
should be apportionment of damages and his liability should be on the basis of his fault. The judgment against the
composite tortfeasors is for a single sum without any apportionment, and that it is the discretion of the plaintiff to enforce
the whole of his claim against any one of the defendants. However, the defendant who has paid more than his share may
claim contribution from the other defendants. A case worth mentioning at this point is Hira Devi v. Bhaba Kant Das.68
PAGE30

The facts were that due to negligence of the driver of a State Transport bus and the driver of a car, there was an accident
resulting in the death of a person travelling in another car and injury to some other persons in that car. The tribunal made
apportionment of damages as between the owners of the bus and the car. The Guwahati High Court, however, held that the
tribunal was in error in apportionment the damages between the two tortfeasors. The court stated that this is a case of joint
tortfeasors and that the liability of the owner of the car has not been established. The claimants were held entitled to
recover the entire amount of the claim from the owner of the bus i.e., State of Assam. The court also observed that this
does not affect the right of the State to claim contribution from the other tortfeasor, namely the owner of the bus.
In 1963, in a Single Bench decision of the Punjab and Haryana High Court i.e., The State of Punjab v. Phool Kumari69, it
had been held that there could be apportionment of liability between various tortfeasors, but that decision has been
dissented in many subsequent cases.
69. AIR [1963] Punjab 125.
70. AIR [1976] Raj 173.
71. R. Kidner, Casebook on Torts, Oxford University Press, New Delhi, 2002, p. 34.
72.

[1987] ACJ 1096.

The other case is of United India Fire and General Insurance Co. v. Sagar Kanwar70, where it was held by the Rajasthan
High Court that there could be no apportionment of damages in case of composite tortfeasors. It is no concern of the
tribunal to apportion the damages between them. The court observed that in such a case the claimants are entitled to
damages jointly and severally from negligent respondents. 71
Similarly, in SatbirSingh v. Balwant Singh,72 there was a collision between a motor cycle and a truck, resulting in the
death of pillion rider and injuries to the motor cyclist. The court found negligence of the motor cyclist to the extent of
two-third and that of truck driver one-third. There was no negligence of the pillion rider. Thus, there was composite
negligence of the truck driver and the motor cyclist against the pillion rider. The court held that the widow of the pillion
rider was entitled to claim the whole amount from the truck owner and his insurance company. Thereafter, the truck owner
and the insurance company could claim the amount from the motor cyclist to the extent of his liability. PAGE31

3.3 Indian Position:In the words of Shiv Dayal, J. in Manjula Devi v. Manjushri73, when a person is injured as a result of the combined
effect of the negligence of two other persons, it is a case of what has been styled by Pollock as Injury by composite
negligence.
73. [1968] ACJ 1 (M.P.).
74. General Manager, Karnataka State Road Transport Corpn. v. Krishnan,
75. Narinderpal Singh v. Punjab State through Secy. Transport Punjab Govt., [1988] 27 R PandH 483.
76. J.H. Logan, Brief Case on Tort Law, Cavendish Publishing Ltd., London, 1995, p. 72.

AIR [1981] Kant 11.

77.

Manjula Devi v. Manjushri, [1968] ACJ 1 (M.P.).

K. Gopalakrishnan v. Shankara Narayan, AIR [1968] Mad. 436.
79. K.V. Narasappa v. Kamalamma, AIR [1968] Mys. 3.
80. Parsani Devi v. State of Haryana, [1973] AC 531 (P. and H.).
81. State of Orissa v. Archana Naik, [1975] ACJ 116(Orissa).
82. Amthiben v. S.G. O.N.G.C., [1976] ACJ 72 (Guj.).
83. National Ins. Co. v. Kastoori Devi, [1988] ACJ 8 Raj.
84. Hira Devi v. Bhabha Kanti Das, AIR [1977] Gwa. 31.
78.

In Krishnan case74 two passenger buses brushed each other and as a result therefore the left hands of both the passengers,
aged 26 and 40 working as spinners and winders in a factory, were cut off below the shoulder joint. In the absence of
satisfactory explanations by the drivers, both were made liable on the presumption raised by the use of the maxim res ipsa
loquitur and their negligence was composite negligence. The court in this case awarded compensation of Rs. 40,000 and
35,000 and they were held to be jointly and severally liable. This was on the principle working behind the composite
negligence. Practically all the High Courts in India have favoured this doctorine. Hence there is a single decree without
any apportionment of damages according to the degree of the fault.
It has been held by the Punjab and Haryana High Court in Narindarpal Singh Case75 that in case of composite negligence,
while awarding the amount, the tribunal can direct the payment of the entire amount of compensation jointly and severally
but at the same time would apportion the liability between two vehicle owners for their facility. Thus on the basis of the
provisions of the Motor Vehicles Act it could safely be held that the tribunal has the jurisdiction to apportion the liability,
even in a case of composite negligence. 76
The high court of Madhya Pradesh77, Madras78, Mysore79, Punjab and Haryana80, Orissa81, Gujarat82, Rajasthan83,
Guwahati84, and Karnataka85, have expressed in favor of non-appointment PAGE32

85. Karnataka S.R.T. Corp.

86. [1996] ACJ 529 (M.P.).
87. [1973] ACJ 531 (P. and H.).
88.

v. Krishnan, AIR [1981] Kant. 11.

AIR [1989] P. and H. 82.

of damages between various composite tortfeasors, with discretion to the plaintiff to enforce the whole of his claim
against any of the tortfeasors. This is in consonance with the joint and several liabilities of the various tortfeasors.
In Prayagdatta v. Mahendra Singh86, there was an accident between a bus and a motor cycle, resulting in the death of the
pillion rider on the motor cycle. The bus driver and the motor cyclist were equally negligent, and an action was brought
for composite negligence against both of them. During the trial, the motor cyclist died and his legal representatives were
not imp leaded. It was held that in such a case, the owner and the driver of the bus could be made liable only for their 50%
share of liability.
In Parsani Devi v. The State of Haryana,87 due to the negligence of the driver of a bus belonging to the Haryana
Government and the driver of a private jeep, there was an accident resulting in the death of a number of persons and
injuries to some others. In an action to claim compensation, the State of Haryana took the plea that it being a case of
composite tortfeasors, its liability should be limited to only one-half of the claim. The plea was rejected, and it was held
that both the drivers being composite or joint tortfeasors, the liability of payment of the compensation by the State as
owner of the bus extends to the whole of the amount that may be awarded, it being left open to the State of Haryana to
seek such contribution from such persons as it may deem fit.
In Narinderpal Singh v. Punjab State,88 the appellant, who was travelling in the Punjab Roadways Bus, was seriously
injured in the right arm and the same had to be amputated as a result of the head on collision between that bus and a truck
coming from the opposite direction. He was awarded Rs. 75,000/- as damages for the same. Both the drivers were found
to be equally negligent and for the convenience of the claimant, the liability of the Punjab State, who owned the bus and
the New India Assurance Co., who had insured the truck was rated as 50:50, i.e., half and half. However, at the option of
the claimant, each defendant could be made to pay the entire claim. In this case, claimant had recovered the entire amount
from the Insurance Company. The PAGE33

Insurance Company was held entitled to reimbursement of half of the amount and interest thereon from the State of
Punjab.
3.4 Duty of care:Composite negligence would arise when negligent acts or omissions of two or more persons have caused damages to a
third person. In such a case, the said third person does not contribute to the mishap or to the damages and, as such, he is
entitled to sue all or any one of the negligent person for damages. Therefore two or more persons owe a duty of care
towards any individual. The court has to see the extent to which the parties are liable.
In Amthiben v. Superintending Geophysicist, O.N.G.C.89, the Gujarat High Court apportioned the damages payable by the
composite tortfeasors, but stated that the liability of the tortfeasors was joint and several, and this apportionment was only
for the purpose of working out their respective liability inter se. This was a case both of composite and contributory
negligence, and the assessment of damages was made accordingly. In this case, the driver of a jeep observed a truck
coming in the middle of the road from a long distance. The headlights of the truck were not dimmed. The driver of the
jeep dimmed the headlights, reduced the speed, but did not take precaution to go to the Kutcha road on the left side, to
avoid an accident with the truck. There was an accident between the two vehicles, and one of the persons, on the front seat
of the jeep was thrown out of the jeep, and killed. It was found that there were three persons on the front seat of the jeep,
whereas there was a space only for two persons, including the driver to sit comfortably. The deceased was sitting on the
extreme right of the driver, and some portion of his body was protruding outside the jeep. 90
89. [1976] ACJ (72) (Guj.).
90.

S. Deakin, A. Johnston and B. Markesins, Markesinis and Deakins Tort Law, Oxford University Press Inc., New York, 2003, p.178.

The damages were assessed at Rs. 99,000 but it was held that there was contributory negligence of the deceased to the
extent of 8 to 10% and therefore the compensation payable was reduced by Rs. 9,000, i.e., damages amounting to Rs.
90,000 were awarded. PAGE34

As between the composite tortfeasors, i.e., the driver of the truck and the driver of the jeep, the liability were apportioned
at 75% and 25% respectively.91 The court, however, declared that this liability of the aforesaid respondents towards the
claimant shall be joint and several and the apportionment is for working out their respective liability inter se. 92
91.

Similarly was also held to be the position in Beandry v. Kiess, [1968] ACJ 34, a decision of the Supreme Court of British Columbia,
Canada, where apportionment of damages for liability of tortfeasors inter se was made.
92. [1976] ACJ at 91. Apportionment of damages for working out the respective liability of the composite tortfeasors is a very welcome
thought. It saves the tortfeasors from the botheration of once again going to a court to get their respective liabilities apportioned. So long as
the decree against them is joint and several, and even if an apportionment is made for the purpose of their respective liability inter se, the
plaintiffs position is well protected. In Sunil Kumar v. Binodini Rath, AIR [1977] Orissa 112, the liability of the two composite tortfeasors
was apportioned as 50:50 without specifying that the liability under the decree was joint and several. To the extent of this omission, it does
not appear to be a happy decision. PAGE35

Chapter 4
Distinction between Contributory and Composite Negligence:The High Court of Orissa in its decision in New India Insurance Co. Ltd. v. Ashok Kumar Acharya93distinguished
between contributory negligence and composite negligence and observed that in the former, the plaintiff who has suffered
damage injury or damage is partly responsible for his injury or and his claim for damages is reduced in proportion to his
extent of negligence of applying the rule of apportionment, but in the case of composite negligence, injury or damage is
caused to the party by the act or omission of two or more persons due to their negligence caused independently. Therefore,
the plaintiff can recover damages jointly or severally from the persons who are guilty of composite negligence. In essence,
there is no negligence on the part of the plaintiff in case of composite negligence and he has a right to claim damages in
full from any or all defendants who are involved in a composite negligence. 94
93. AIR [1994] Orissa 220
94. WVH Rogers, Winfield and Jolowicz
95. Law Reform (Contributory Negligence) Act, 1945.
96.
97.

on Tort, , Sweet and Maxwell Ltd., London, 2006, p. 89.

Rural Transport Service v. Belgium Bibi, AIR [1980] Cal. 165.

AIR [1975] Punj-Har. 259.

In a case of contributory negligence, the court has to see the extent to which the parties are at fault. There is
apportionment of damages both in England 95 and India96. The defendants liability is reduced to the extent the plaintiff is
found guilty of contributory negligence.
Reiterating the same view the High Court of Punjab in Union of India v. Hindustan Liver Ltd. 97held that the concept of
contributory negligence is altogether different from that of composite negligence and it is best illustrated by the facts of
this case. The vegetable ghee manufactured by the Hindustan Lever Ltd. worth Rs. 19185/- was being transported by the
defendant by road. The driver of the truck which was carrying the consignment found the railway crossing gate open for
the road traffic and, therefore, tried to cross it but in the mean time the train happened to pass through the level crossing
resulting in collision with the truck and all the tins containing ghee were scattered all around causing damage and the
death of the driver, cleaner and the coolie who were in the truck. The accident was caused by the negligence of the railway
gateman who had gone somewhere leaving the railway gate open for road traffic. The PAGE36

claimant, Hindustan Lever Ltd. sued the railway and the transporter for damages. The railway accepted its liability for the
negligence of its gateman but also contended that the contributory negligence of the transporter was also responsible for
the accident and, therefore, he should also be held liable. Dismissing the railways plea, the Court held that this was a case
of composite negligence and not of contributory negligence. Pointing out the difference between the two, the Court held
that in the case of Contributory negligence, it is the partial negligence which is involved but in case of composite
negligence, there is no negligence of the plaintiff, it is the joint negligence of two or more independent persons which
causes damage to the plaintiff. In other words, in composite negligence, the plaintiff, i.e. the claimant is the victim of the
joint negligence of independent defendants without his fault in the resulting wrong.
The second point of difference is that contributory negligence is considered as defense whereas composite negligence is
not. In the case of contributory negligence, the court has to see the extent to which the parties are at fault and the court
decides the apportionment of damages between the plaintiff and the defendant according to the decree of their faults. In
the case of composite negligence, the liability of the two or more defendants is joint and several and the court does not
decide the apportionment of damages between / among the defendants. Consequently, there is a single decree for the
whole amount against all the defendants, without any apportionment of damages. This has been beautifully explained by
the Rajasthan High Court in the Case of United India Fire and General Insurance Co. v. Sagar Kanwar98 in the following
words:98.

AIR [1976] Raj 173.

It seems to us that where the negligence of the claimant injured or the deceased also contributes to the happening of the
accident, the amount of compensation that the respondent will be required to pay shall be in proportion to the volume of
his fault or negligence but where a person is injured or dies in an accident which occurs not on account of his negligence,
but because the drivers of the colliding vehicles were negligent, the claimants are entitled to damages jointly and
severally from the negligent respondents. It is no concern of the tribunal to apportion damages between them. PAGE37

Chapter 5
Conclusion and Suggestions
When the plaintiff by his own want of care contributes to the damage caused by the negligence or wrongful conduct of the
defendant, he is considered to be guilty of contributory negligence. It is ones failure to avoid getting hurt by the
defendant or it is the fault of the claimant in the very occurrence of the accident. When the negligence of two or more
persons results in the same damage, there is said to be Composite Negligence, and the persons responsible for causing
such damage are known as Composite Tortfeasors. The scope of the (English) Law Reform Act, 1945 is wide, but not
unlimited, for there were a number of torts where at common law the defendant could not escape liability by showing
contributory negligence on the part of the claimant and this is carried over into the statutory regime. Contributory
negligence is a defense in which the defendant has to prove that the plaintiff failed to take reasonable care of his own
safety and that was a contributing factor to the harm ultimately suffered by the plaintiff whereas in composite negligence
is not defense because of many individuals contributing to the damage to a particular individual where individual was not
at fault. The liability of the persons guilty of composite negligence is joint and several. In India, there is no Central
Legislation corresponding to the Law Reform (Contributory Negligence) Act, 1945 of England. The position brought
about by the Law Reform Act in England is very just and equitable. The liability of composite negligence has been made
somewhat similar through legislations, i.e., the Law Reform Act, 1935 and Civil Liability Act, 1978.
The existence of a duty of care is, of course, essential to a cause of action for negligence, but for contributory negligence
it is quite unnecessary that the claimant should owe a duty of the defendant. In cases of contributory negligence
consideration of the conduct of the injured or deceased person becomes material. In composite negligence, there is a
liability of distinct individuals. No one is allowed to say that there should be apportionment of damages and his liability
should be on the basis of his fault. When the plaintiff is a child or other person under some form of personal incapacity, it
is sufficient if he shows as much care as a person of that age may reasonably be expected to show. PAGE38

Many cases related to composite and contributory negligence have been decided by the High Courts and Supreme Court
of India and laid down new principles in the legal field. The topic of contributory negligence is a multifarious topic. It
extends its tentacles to the topics of defenses to a tort, damages in tort, special defense to the tort of negligence and too
limiting, modifying and defining the topic of negligence. Subject to non- requirement of the existence of duty, the
question of Contributory and Composite Negligence is to be decided on the same principle on which the question of the
defendant/defendants is/are decided. Therefore, we can conclude that composite and contributory negligence are essential
types of negligence and they laid important principles in the law of Torts. They are really helpful to an individual to define
negligence in a descriptive and analytical way and make the scope of the negligence vast and wide-spread. Contributory
negligence can be used as a defense by the defendant while Composite negligence makes defendants to divide the
damages to be paid to the plaintiff between them. PAGE39

Bibliography:1. Basu, D. D., the Law of Torts, Kamal Law House, Kolkata, 2010.
2. Deakin, S., A. Johnston and B. Markesins, Markesinis and Deakins Tort Law, Oxford University Press Inc., New York,
2003.
3. Fridman, G.H.L., Friedman on Torts, Waterlow Publishers, London, 1990.
4. Harpwood, V., Principles of Tort Law, Cavendish Publishing Ltd., London, 2000.
5. Kidner, R., Casebook on Torts, Oxford University Press, New Delhi, 2002.
6. Logan, J.H., Brief Case on Tort Law, Cavendish Publishing Ltd., London, 1995.
7. Murphy, J., Street on Torts, Oxford University Press, New York.2006.
8. Pandey, J.N., Law of Torts and Consumer Protection Act, Central Law Publications, Allahabad, 2005.
9. Pillai, P.S.A., Law of Tort, Eastern Book Company Publishing (P) Ltd., Lucknow, 2004.
10. Ranchhoddas, R. and D. Keshavlal Thakore, the Law of Torts, Wadhwa and Company Nagpur, New Delhi, 2007.
11. Rogers, W.V.H., Winfield and Jolowicz on Tort, Sweet and Maxwell Ltd., London, 2006.
12. Shukla, M.N., the Law of Torts, Central Law Agency, Allahabad, 2008.
13. Singh, S.P., Law of Tort, Universal Law Publishing Co. Pvt. Ltd., New Delhi, 2006.
14. Singh, A., Introduction to Law of Torts, Wadhwa and Company Law Publisher, New Delhi, 2001.
15. Weir, T., A Casebook on Tort, Sweet and Maxwell Ltd., London, 2004.
16. Retrieved from, http://sixthformlaw.info/02_cases/mod3a/aqa/_cases_remedies_contrib.htm, at 1:21 on Oct 25, 2010.
17. Retrieved from, http://www.duhaime.org/LegalDictionary/C/ContributoryNegligence.aspx, at 2:14 on Oct 25, 2010.
18. Retrieved from, http://chestofbooks.com/society/law/Popular-Law-4/Section-87-Contributory-Negligence.html, at
23:50 on Oct 26, 2010.
19. Retrieved from, http://guest1.lawyersclubindia.com/experts/Composite-Negligence-Contributory-Negligence116991.asp, at 15:31 on Oct 27, 2010.