Contributory negligence

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At common law, contributory negligence acted as a complete defence.

However, under the Law Reform (Contributory Negligence) Act
1945, contributory negligence operates as a partial defence whereby the
courts can apportion loss between the parties. This makes it a more
attractive option to the courts than other defences which can operate
harshly and absolve a defendant of liability no matter how much at fault they
may be. Consequently the defences ofvolenti non fit injuria and ex turpi
causa are perhaps of less significance. Contributory negligence will often
succeed where other defences fail. For example Revill v Newbery [1996] 2
WLR 239 Case summary, Nettleship v Weston [1971] 3 WLR 370 Case
summary.

S.1(1) Law Reform (Contributory Negligence) Act 1945 provides that where
a person suffers damage as a result partly of his own fault and partly the
fault of another(s), a claim shall not be defeated by reason of the fault of the
person suffering damage. Thus contributory negligence operates as a partial
defence. At first instance in Pitts v Hunt [1990] 3 All ER 344 (Case
summary) the court used this section to find that the Claimant was
100% contributory negligent.However, this was held to be illogical and
inconsistent with the wording of the Act which requires the damage to be
partly the fault of both parties.

Requirements of contributory negligence

The burden of proof is on the defendant to demonstrate:

1. The claimant failed to take proper care in the circumstances for
their own safety
2. The failure to take care was a contributory cause of the damage
suffered

1. The claimant failed to take proper care in the circumstances for

their own safety
Lack of proper care for own safety differs from the standard for breach of
duty:
Davies v Swan Motor co [1949] 2 KB 291

Case summary

The standard is variable and all circumstances are taken into

account
Barrett v Ministry of Defence [1995] 1 WLR 1217 Case summary

Children, particularly young children are unlikely to be found

to have failed to take proper care:

Gough (an infant) v Thorns [1966] 1 WLR 1387 Case summary

2. The failure to take care was a contributory cause of the

damage suffered
Note that the failure to take care must be a contributory cause to the
damage suffered as oppose to the causing the incident that resulted in
damage. This point was made clear in Capps v Miller [1989] 1 WLR 839 Case
summary.
Common examples of what constitutes failing to take care for own safety
include:
Failure to wear a seat belt:
Froom v Butcher [1976] QB 286 Case summary

Failure to wear or fasten a crash helmet on a motorcycle:

O'Connell v Jackson [1971] 3 WLR 463

Capps v Miller [1989] 1 WLR 839

Case summary.

Exposing oneself to danger:

Davies v Swan Motor co [1949] 2 KB 291 Case summary

Jones v Livox Quarries [1952] 2 QB 608 Case summary

Contributory negligence and joint tortfeasors

Contributory negligence can operate in three party situations. The courts
must, however, always assess the degree to which the Claimant contributed
to his own injury before assessing the responsibility of the tortfeasors:

Fitzgerald v Lane [1989] 1 AC 328

Case summary

Contributory negligence and other defences

Contributory negligence may be raised and often is raised in conjunction

with other defences. There is also an overlap with causation issues
particularly where the defence raises the act of the claimant as novus actus
interveniens. The courts are generally more amenable to a finding of
contributory negligence than other defences as it allows them to apportion
loss between the parties to reach a more just result rather than the all or
nothing approach of other defences.
The courts are reluctant to make a finding of ex turpi causa preferring the
defence of contributory negligence:

Revill v Newbery [1996] 2 WLR 239

Case summary

Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360 Case

summary

Similarly the courts would prefer to make a finding of contributory

negligence than volenti non fit injuria:

Nettleship v Weston [1971] 3 WLR 370 Case summary.

Stapley v Gypsum Mines [1953] AC 663 Case summary
The courts are less likely to find that the act of the claimant breaks the chain
of causation, prefering a finding of contributory negligence:
Sayers v Harlow UDC [1958] 1 WLR 623

Case summary

Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360 Case

summary

Badger v
Ministry of
Defence[2005]
QBD
Full case here

^[Tort contributory negligence]

D employed the deceased as a boiler maker. During
the course of his employment, he had been
exposed to asbestos, which caused him to develop
asbestosis he developed lung cancer which
eventually killed him. D smoked and so contributed
to the negligence that caused his death.
Held: D did not take reasonable care for his own
safety.
Continuing to smoke amounted to contributory
negligence which was causative of lung cancer. A
reasonably prudent man, warned that there was a
substantial risk that smoking would seriously
damage his health, would stop smoking.
C won damages reduced by 20%

Booth v
White [2003]
CA

[Remedies - contributory negligence allowing himself to be carried by drunken

driver, C does not have to question the driver
as to how much he had to drink]
C and D were drinking in a pub, but not always
together. C was injured as a passenger in D's car.
Held: Reaffirmed the principles set out in Owens.
Specifically, that the law did not require a
passenger to question a driver as to how much
alcohol he had consumed. Therefore, the judge
was not wrong in finding on the facts that the
passenger was not contributorily negligent.

Green v

[Remedies - contributory negligence -

Gaymer [1999]
QBD

allowing himself to be carried by drunken

driver where it is obvious, damages reduced
by 20%]
C was the pillion passenger on a motorcycle that
hit a lamppost, C was injured and D who had been
drinking, was killed.
Held: Evidence that deceased driver had
consumed at least five pints of cider. Reasonable to
conclude claimant was aware that the deceased's
capacity to drive was impaired when they left the
pub and found guilty of 20% contributory
negligence.

Malone v
Rowan [1984]
QBD

[Remedies - contributory negligence - not

contributory if D's condition as a drunken
driver is not obvious]
C the widow of a man who had been a passenger
in a car driven by a man who had been drinking
but displayed no obvious signs of drunkenness.
Held: No deduction for contributory negligence.
Emphasised that the burden of proof is on
defendant and also there was no direct evidence of
the deceased passenger's knowledge of what the
driver had consumed.

Owens v
Brimmell [1977
] QBD

[Remedies - contributory negligence - 20%

deduction for not wearing a seat belt and
allowing himself to be carried by drunken
driver]
C and D together in D's car drank considerable
amounts of beer in a pub. Whilst driving home C
did not wear a seat belt. D negligently caused an
accident, whereby C was injured.
Held: The principle was recognised that a
passenger can be held to have been contributorily
negligent if he rides with a driver who he knows
has consumer alcohol in such quantity as is likely
to impair to a dangerous degree that driver's
capacity to drive properly and safely.
On the facts, the passenger was found guilty of
20% contributory negligence.

Traynor v

[Remedies - contributory negligence - not

Donovan
[1978] Sheldon
J

contributory if D's condition as a drunken

driver is not obvious]
C was a front seat passenger in a car driven by D.
She was not wearing a seat belt. D was over the
drink drive limit but this was not obvious to C.
Held: No deduction for contributory negligence on
the basis that the symptoms of drunkenness on the
facts would not necessarily have been apparent to
a lay person.

Contributory negligence is negligent conduct by the injured party that is a contributing

cause of her injuries, and that falls below the legal standard for protecting oneself from
an unreasonable risk of harm.
At common law, the defense of contributory negligence was an absolute defense and
served as a complete bar to recovery. Most jurisdictions today have adopted the
doctrine of comparative negligence, whereby the amount of the plaintiffs award is
reduced by the extent to which plaintiffs conduct contributed to the harm.
Contributory negligence is a bar to recovery only when it is a proximate cause of the
injury. If the damage is not the necessary or ordinary or likely result of contributory
negligence, but is due to some other unlikely event which could not reasonably have
been anticipated or regarded as likely to occur, the plaintiffs negligence is too remote to
act as a bar to recovery.

Standard of Care
The standard of care in contributory negligence is the same as in ordinary negligence;
i.e., that which a reasonable person would have done under the same or similar
circumstances. The act or omission of an injured party which amounts to contributory
negligence must be a negligent act or omission, and it must serve as a proximate cause
of the injury and not merely as a condition. An act or omission that merely increases or
adds to the extent of the loss or injury will generally not preclude recovery. It may
however reduce the amount of damages.
If a plaintiff voluntarily disregards warnings and assumes the risk of certain dangers, but
is injured through the negligence of the defendant from an entirely different source of
danger, of which she was not and could not have been aware, and of whose existence it
was the duty of the defendant to warn, then the plaintiffs failure to heed the warning
does not constitute contributory negligence.

Intentional Torts
The defense of contributory negligence generally is not available for intentional torts or
where the defendant is found to be guilty of wanton and willful misconduct. It can also
be unavailable where the defendant has violated a statute clearly designed for the
protection of the plaintiff. Contributory negligence is not a defense for strict liability torts
unless the plaintiff has knowingly assumed an unreasonable risk.

Rescue Doctrine
The majority rule is that if a person is injured while attempting to rescue another person
or property from danger, the rescuer is not contributorily negligent unless the conduct is
reckless.

Leading Cases
Alexander v. Kramer Bros. Freight Lines, Inc. Alexander sued Kramer Brothers
after he suffered personal injuries in an accident with the defendants truck and Kramer
Brothers asserted contributory negligence as a defense. The court held that the plaintiff
has the burden of proof to show that he or she was not contributorily negligent.
Baltimore & Ohio R. Co. v. Goodman Goodman was struck and killed by a train
while driving over a railroad crossing. His view was obstructed and he did not get out to
look for an approaching train. The court ordered a directed verdict that Goodman was
contributorily negligent on the grounds that no reasonable jury could have found in favor
of the plaintiff under the facts of the case.
Brown v. Kendall Kendall injured Brown while trying to separate their dogs and stop
them from fighting. Brown was standing behind Kendall and he was struck in the eye
with a stick. The court held that the injured party cannot recover if both parties were not
negligent, or if both parties were negligent, or if the injured party was negligent but the
defendant was not.
Butterfield v. Forrester Forrester laid a pole across a road. Butterfield was riding at
high speed at twilight and did not see the pole. He hit the pole and suffered personal
injuries. The court held that Butterfield was contributorily negligent because if he had
been using ordinary care he would have been able to see and avoid the obstruction.
Eckert v. Long Island R. R. Co. Eckert saw a boy sitting on railroad tracks. He
succeeded in saving the boy but was struck and killed by the train. The court held that
when a rescuer attempts to save someone in imminent peril, he may assume
extraordinary risks or perform dangerous acts without being contributorily negligent.
Martin v. Herzog Martin was killed in an accident while driving a buggy without lights
at night. The defendant was driving on the wrong side of the road. The court held that

the violation of a statutory duty of care is negligence per se and a jury may not relax that
duty. In order for a party to be liable for negligent conduct, the conduct must be the
cause of the injury.
Roberts v. Ring Ring was 77 years old and had impaired hearing and vision. While
driving on a busy street he saw a seven year old boy run into his path but failed to stop
in time to avoid hitting him. The court held that while the defendant cannot take
advantage of impairments and infirmities to avoid a finding of negligence, the injured
party is held to a standard that takes age and maturity into account.
Smithwick v. Hall & Upson Co. Smithwick was told not to work on a platform but was
not told that the wall was about to collapse. He worked on platform despite the warning
because he believed the risk of falling was the only danger. The court held that the
failure to heed a warning is not contributory negligence if the injury was the result of a
different source of risk caused by the defendant, and the injured party was unaware of
that risk.
Solomon v. Shuell Plain clothes police officers were arresting robbery suspects. The
decedent thought the suspects were being attacked and was shot by one of the officers
when he came out of his house with a gun. The court held that under the rescue
doctrine, contributory negligence is not present if the rescuer had a reasonable belief
that the victim was in actual danger.
Related posts:

Palsgraf v. Long Island Railroad Co.

Frummer v. Hilton Hotels International, Inc.
Canterbury v. Spence

Contributory negligence examples

Posted on September 26, 2010 by Mark Thompson

Contributory negligence needs some explanation.

Contributory negligence is sometimes called partial fault, but this is
confusing. The concept is based on a claimant being partly responsible
for the damage. I am asked about 50:50 offers to settle personal injury
cases. They are usually just compromise offers which have no real
basis in law.

A good example to start with is a car driver or passenger who

does not wear a seat belt. Not wearing the seat belt does not cause
the accident, but it contributes to the damage (the injury in this
example). Another example is where an employee has failed to wear
safety equipment. An accident occurs for other reasons, but the failure
to wear safety equipment contributes to the injury, not the accident. If
this claim is upheld by the court, the employer can suggest that any
damages awarded to the complainant should be reduced by an amount
that represents the portion of the blame assumed by the employee. If a
claimant is found to have contributed by 20 per cent, that same 20 per
cent will be deducted from the compensation received.
You could imagine a situation involving an accident at work where
both claimant and defendant are to blame, and the outcome is divided
in the same proportion as each party is to blame.
One more example to help. A driver who drives too fast for the road
conditions will be found negligent if he hits a pedestrian. If
that pedestrian did not check the traffic the pedestrian will be
found to have contributed, and the proportion will depend on how
much time was available to the driver to avoid the pedestrian.

Until 1945 contributory negligence was a complete defence to a claim

for compensation. The Law Reform (Contributory Negligence) Act
1945 means contributory negligence is no longer a complete defence,
although if you are found to have contributed by 100 per cent your
case will fail.
A Court is given rather vague guidance as it can reduce damages to
such extent as the Court thinks just and equitable having regard to the
claimants share in the responsibility for the damage I could set out
101 examples of court decisions, but every each case depends on its
particular circumstances so I will paint the picture for you.
There are a few technicalities to weigh up. The words above from
the 1945 law say ..suffer damage as the result.. so for the claimants
compensation to be reduced their fault must be part of the cause of the
damage. If the claimants fault is the only fault then the action fails.
Fault is the same fault used to show a defendant is to blame. Fault is
proved by showing negligence or breach of statutory duty.
The claimants share of responsibility means the link between the
fault and the damage, and also the amount of blame which attaches to
the conduct. The more blameworthy the conduct the greater the share
of responsibility.
Contributory negligence is very important for two reasons:
1.

The percentage by which you are found to contribute is the

percentage deducted from your compensation. So if you are found
50 per cent to blame you loss 50 per cent of the compensation.

2.

An admission of liability does not mean contributory negligence

cannot be argued against you. So just because a Defendant has
admitted liability does not mean you will get 100 per cent of your
compensation. Ask for an admission of liability and agreement that
contributory negligence will be argued against you.

The concept of fair and equitable comes into play to take account
of a cyclists age, for example. In a 2003 case called Russell v Smith
a 10 year old cyclist was seen as a vulnerable road user, and
compensation was reduced by 50 per cent rather than 75 per cent
which would have been found against an older cyclist. A similar
approach is likely for a young or inexperienced worker.
I started by explaining the contribution is to the damage, that is the
injury, and not the happening of the event that caused the injury. Lets
go back again to the seat beltexample. Not wearing a belt does
not cause an accident, but it can contribute to the extent of
the injury. In a famous 1976 case called Froom v Butcher the
decision was:

No contribution if failure to wear belt played no part in injury,

contributed to some degree then 15 per cent contribution, and
If belt would have reduced injury substantially then 25 per cent
contribution.

This decision was made before seat belt wearing became law. It is
often challenged but it stands firm.

The argument for contributory negligence must be made by the

defendant. If Court proceedings have been started a Defendant must
put forward its argument of contribution in its Defence.
Even if liability is admitted, or you have a technical
judgment, contributory negligence can still be argued. It
always confused me, but contributory negligence is an issue relevant
to the amount of compensation, and not a defence to a finding of fault.
A few examples will help, and hopefully not confuse.
Trial judge found the claimants contributory negligence was 100 per
cent responsible when he tripped over a blackboard, despite there
being a statutory duty which applied to the employer. The claimant
appealed and the decision was put right. As there was a clear breach of
the employers duty, then some responsibility must attach to the
Defendant. The employer should not have allowed the obstruction in
the first place, but the claimant was found 50 per cent to blame for not
looking where he was going.
A claimant got out of a car in a bus lay by and crossed the road,
and was hit by the defendants car. The first decision was that the
driver was completely to blame for driving too fast, and using side
lights rather than headlights in the dark. The case was appealed and it
was confirmed the driver was to blame, but so was the pedestrian. Just
as the driver had not seen the pedestrian, the pedestrian had not seen
the car, and both were there to be seen. The driver had a greater duty
as he was in charge of a potentially dangerous equipment (a car) so the
reduction for contributory negligence was 25 per cent.

A cyclist was not found to have contributed when a driver who

had just pulled into the side of the road opened his door.
A very lucky claimant (he survived) was caught in the gap between
platform a train, and the guard did not see him, and the train pulled
off. The claimant was drunk and behaving idiotically on the
platform. The rail company was responsible for the guards failure to
see the passenger, and the passenger was found to have contributed by
50 per cent.

Motorcycle filtering and contributory negligence

I look separately at the complex issue ofmotorcycles filtering through

traffic. That is an area of law where contributory negligence is often a
very important argument.
Enough examples, and I hope you have got the picture. You will rarely
find a decided case exactly like yours, so to advise various decided
cases will be looked at and your case will be slotted between them.

Contributory negligence examples

Posted on September 26, 2010 by Mark Thompson

Contributory negligence needs some explanation.

Contributory negligence is sometimes called partial fault, but this is

confusing. The concept is based on a claimant being partly responsible
for the damage. I am asked about 50:50 offers to settle personal injury
cases. They are usually just compromise offers which have no real
basis in law.

A good example to start with is a car driver or passenger who

does not wear a seat belt. Not wearing the seat belt does not cause
the accident, but it contributes to the damage (the injury in this
example). Another example is where an employee has failed to wear
safety equipment. An accident occurs for other reasons, but the failure
to wear safety equipment contributes to the injury, not the accident. If
this claim is upheld by the court, the employer can suggest that any
damages awarded to the complainant should be reduced by an amount
that represents the portion of the blame assumed by the employee. If a
claimant is found to have contributed by 20 per cent, that same 20 per
cent will be deducted from the compensation received.
You could imagine a situation involving an accident at work where
both claimant and defendant are to blame, and the outcome is divided
in the same proportion as each party is to blame.

One more example to help. A driver who drives too fast for the road
conditions will be found negligent if he hits a pedestrian. If
that pedestrian did not check the traffic the pedestrian will be
found to have contributed, and the proportion will depend on how
much time was available to the driver to avoid the pedestrian.
Until 1945 contributory negligence was a complete defence to a claim
for compensation. The Law Reform (Contributory Negligence) Act
1945 means contributory negligence is no longer a complete defence,
although if you are found to have contributed by 100 per cent your
case will fail.
A Court is given rather vague guidance as it can reduce damages to
such extent as the Court thinks just and equitable having regard to the
claimants share in the responsibility for the damage I could set out
101 examples of court decisions, but every each case depends on its
particular circumstances so I will paint the picture for you.
There are a few technicalities to weigh up. The words above from
the 1945 law say ..suffer damage as the result.. so for the claimants
compensation to be reduced their fault must be part of the cause of the
damage. If the claimants fault is the only fault then the action fails.
Fault is the same fault used to show a defendant is to blame. Fault is
proved by showing negligence or breach of statutory duty.
The claimants share of responsibility means the link between the
fault and the damage, and also the amount of blame which attaches to
the conduct. The more blameworthy the conduct the greater the share
of responsibility.

Contributory negligence is very important for two reasons:

1.

The percentage by which you are found to contribute is the

percentage deducted from your compensation. So if you are found
50 per cent to blame you loss 50 per cent of the compensation.
2.
An admission of liability does not mean contributory negligence
cannot be argued against you. So just because a Defendant has
admitted liability does not mean you will get 100 per cent of your
compensation. Ask for an admission of liability and agreement that
contributory negligence will be argued against you.
The concept of fair and equitable comes into play to take account
of a cyclists age, for example. In a 2003 case called Russell v Smith
a 10 year old cyclist was seen as a vulnerable road user, and
compensation was reduced by 50 per cent rather than 75 per cent
which would have been found against an older cyclist. A similar
approach is likely for a young or inexperienced worker.
I started by explaining the contribution is to the damage, that is the
injury, and not the happening of the event that caused the injury. Lets
go back again to the seat beltexample. Not wearing a belt does
not cause an accident, but it can contribute to the extent of
the injury. In a famous 1976 case called Froom v Butcher the
decision was:

No contribution if failure to wear belt played no part in injury,

contributed to some degree then 15 per cent contribution, and
If belt would have reduced injury substantially then 25 per cent
contribution.

This decision was made before seat belt wearing became law. It is
often challenged but it stands firm.
The argument for contributory negligence must be made by the
defendant. If Court proceedings have been started a Defendant must
put forward its argument of contribution in its Defence.
Even if liability is admitted, or you have a technical
judgment, contributory negligence can still be argued. It
always confused me, but contributory negligence is an issue relevant
to the amount of compensation, and not a defence to a finding of fault.
A few examples will help, and hopefully not confuse.
Trial judge found the claimants contributory negligence was 100 per
cent responsible when he tripped over a blackboard, despite there
being a statutory duty which applied to the employer. The claimant
appealed and the decision was put right. As there was a clear breach of
the employers duty, then some responsibility must attach to the
Defendant. The employer should not have allowed the obstruction in
the first place, but the claimant was found 50 per cent to blame for not
looking where he was going.
A claimant got out of a car in a bus lay by and crossed the road,
and was hit by the defendants car. The first decision was that the
driver was completely to blame for driving too fast, and using side
lights rather than headlights in the dark. The case was appealed and it
was confirmed the driver was to blame, but so was the pedestrian. Just
as the driver had not seen the pedestrian, the pedestrian had not seen
the car, and both were there to be seen. The driver had a greater duty

as he was in charge of a potentially dangerous equipment (a car) so the

reduction for contributory negligence was 25 per cent.
A cyclist was not found to have contributed when a driver who
had just pulled into the side of the road opened his door.
A very lucky claimant (he survived) was caught in the gap between
platform a train, and the guard did not see him, and the train pulled
off. The claimant was drunk and behaving idiotically on the
platform. The rail company was responsible for the guards failure to
see the passenger, and the passenger was found to have contributed by
50 per cent.

Motorcycle filtering and contributory negligence

I look separately at the complex issue ofmotorcycles filtering through

traffic. That is an area of law where contributory negligence is often a
very important argument.
Enough examples, and I hope you have got the picture. You will rarely
find a decided case exactly like yours, so to advise various decided
cases will be looked at and your case will be slotted between them.
Contributory Negligence

 Volenti non fit inuria

Ex turpi causa non oritur action
Of these three, I am aiming to discuss in detail about contributory negligence.
CONTRIBUTORY NEGLIGENCE:When a person by his own want of care contributes to the damage caused by the
negligence or the wrongful conduct of the defendant, he is considered to be guilty of
Contributory Negligence. Contributory Negligence it does not mean breach of any
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. It is not a complete defence, where the plaintiffs own fault has contributed to
the damages he suffered and the plaintiff will have his/her damages reduced in proportion
to his/her fault.
Contributory negligence is a defense to a claim based on negligence. It is applied in cases
where the plaintiff by his own negligence or fault has contributed to the harm suffered
due to the negligence or wrongful conduct of the defendant. For example, a pedestrian
who tries to cross the road all of a sudden and is hit by a moving vehicle, is guilty of
contributory negligence. Similarly, if A, going on the wrong side of the road,is hit by a
vehicle coming from the opposite direction and driven rashly by B , A can be met with
the defence of contributory negligence.
Contributory negligence defers from contribution, which is a claim bought by one
tortfeaser against another to recover some or all of the money damages awarded to the
plaintiff.
To be guilty of contributory negligence, the plaintiff should not have acted like a prudent
man. if he has taken as much care as a prudent man would have taken in a similar
situation, there is no contributory negligence.
When the plaintiff is negligent, but his negligence hasnt contributed to the harm suffered
by him, the defence of contributory negligence cannot be pleaded.

RULES TO DETERMINE CONTRIBUTORY NEGLIGENCE:The Contributory Negligence Act, 1945 prescribes the rule when there is contributory
negligence on the part of the plaintiff. There are 2 rules to determine whether there is
contributory negligence or not: Negligence of the plaintiff in relation to the defence of contributory negligence does not
have the same meaning as is assigned to it as a tort of negligence. Here the plaintiff need
not necessarily owe a duty of care to the other party. What has to be proved is that the
plaintiff did not take due care of his own safety and thus contributed to his own damage.
It is not enough to show that the plaintiff did not take due care of his own safety. It has
also to be proved that it is his lack of care which contributed to the resulting damage. If
the defendants negligence would have caused the same damage even if the plaintiff had
been careful and the plaintiffs negligence is not the operative cause of accident, the
defence of contributory negligence cant be pleaded. For example, the plaintiff is
negligent in driving the motor cycle on the road without proper brakes and the defendant
aiming at a bird negligently shoots and injures the plaintiff, the plaintiffs negligence here
cant be considered as contributory negligence for this injury by the defendant.
BURDEN OF PROVING CONTRIBUTORY NEGLIGENCE
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.
LAST OPPORTUNITY RULE:-

At common law, contributory negligence on the part of the plaintiff was considered to be
a good defence and the plaintiff lost his action. Plaintiffs own negligence disentitled him
to bring any action against the negligent defendant.The rule of law is that if there is
blame causing the accident on both sides, however small that blame may be on one side,
the loss lies where it falls.
This rule worked a great hardship particularly for the plaintiffs because for a slight
negligence on his part, he may lose his action against a defendant whose negligence may
have been the main cause of damage to the plaintiff. The courts therefore modified the
law relating to contributory negligence by introducing the LAST OPPORTUNITY
RULE. According to this rule, when two persons are negligent, that one of them, who
had the later 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 negligent act of the defendant does not
observe any ordinary care, he cannot make the defendant liable for that. Similarly, if the
last opportunity to avoid the accident was 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 in a narrow highway. The
defendant was driving his wagon driven by the horses too fast that it negligently ran over
and killed the donkey. In spite of his own fault, the plaintiff was held entitled to recover
because the defendant had last opportunity to avoid the accident.
The application of the last opportunity rule was further defined in the case of British
Colombia Electric Co.v. Loach and the party who could have the last opportunity to avert
the accident, if he had not been negligent, was considered to be responsible for the
accident. In other words, the rule was extended to cases of CONSTRUCTIVE LAST
OPPORTUNITY. In that case, the driver of a wagon, in which the deceased was seated,
negligently brought the wagon on the level crossing of the defendants tramline without
trying to see whether any tram was coming on the line. A tram, which was being driven
too fast, caused the collision. It was found that the tram which caused the accident was
allowed to go on the line with defective brakes and if the brakes were in order then, in
spite of the negligence on part of the wagons driver, the tram could have been stopped
and accident averted. The legal representatives of the deceased brought an action against
the tramway company. The defendants pleaded the defence of contributory negligence .It

was held that they could not take the defence of contributory negligence because they had
the last opportunity to avoid the accident. The defendants were therefore held liable.
CONTRIBUTORY NEGLIGENCE OF CHILDREN:What amounts to contributory negligence in the case of a mature person may not be the
case of a child because a child cannot be expected to be as careful as a grown up person.
Age of a person, therefore, has to be taken into account to ascertain whether a person is
guilty of contributory negligence or not. In R.Srinivasa v. K.M.Parasivamurthy, a child of
about 6 years was hit by a lorry while standing just near the footpath. It was held that a
child of that age doesnt have the road sense like his elders and, therefore, the plaintiff,
cannot be blamed for contributory negligence.
DOCTRINE OF APPORTIONMENT OF DAMAGES IN INDIA:LAW REFORM (CONTRIBUTORY NEGLIGENCE) ACT,1945:Section1 (1) of the Act 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(s), 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 for the damage.
Thus, if in an accident the plaintiff is as much at fault as the defendant, the compensation
to which he would otherwise be entitled will be reduced by 50%.
In India, there is no central legislation corresponding to the Law Reform (contributory
negligence) Act,1945 of England. The Kerala legislation 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 DOCTRINE OF ALTERNATIVE DANGER:Although, the plaintiff is supposed to be careful in spite of the negligence of the
defendant, the plaintiff might become perplexed or nervous by a dangerous situation

created by the defendant and to save his person or property, he may take an alternative
risk. The law, therefore allows the plaintiff to encounter an alternative danger to save
himself from the danger created by the defendant .If the course adopted by him results in
some harm to himself, his action against the defendant will not fail. The judgement of the
plaintiff should not, however, be rash. In Shyam Sunder v. State of Rajasthan, due to the
negligence of the defendants, the State of Rajasthan, a truck belonging to them caught
fire hardly after it had covered a distance of only 4 miles on a particular day. One of the
occupants, Navneetlal, jumped out to save himself from the fire, he struck against a stone
lying by the roadside and died instantaneously .The defendants were held liable.
CONTRIBUTORY NEGLIGENCE AND VOLENTI NON FIT INJURIA
DISTINGUISHED
1. CONTRIBUTORY NEGLIGENCE is based on the proportion of his fault in the
matter. The damages which the plaintiff will be reduced to the extent the claimant himself
was to blame for the loss. VOLENTI NON FIT INJURIA is a complete defence in a case
of negligence which totally makes the defendant free from the liability. The defendants
liability in case of

2. In the defence of CONTRIBUTORY NEGLIGENCE, both plaintiff as well as

defendant is negligent. In VOLENTI NON FIT INJURIA, the plaintiff may be volens but
at the same time exercising due care for his own safety. Moreover, defendants negligence
may rule out the application of the defence.
CONCLUSION
Contributory Negligence is a type of defence for the defendant with which he can show
some negligence on the part of the plaintiff so that the amount to be paid as compensation
is reduced to the extent of the plaintiffs own negligence. Thus, Contributory Negligence
is a good defence for the defendants to use against the plaintiffs in cases related to some
specific torts.

Since this defence favoured the defendants in most of the cases, the last opportunity rule
was brought in wherein whoever among the defendant and plaintiff had the last
opportunity to prevent the accident was held liable.
egligence As A Tort: Meaning Essentials And Defences: An
Overview
I. MEANING: In everyday usage, the word negligence denotes mere
carelessness. In legal sense it signifies failure to exercise standard of
care which the doer as a reasonable man should have exercised in the
circumstances. In general, there is a legal duty to take care when it
was reasonably foreseeable that failure to do so was likely to cause
injury. Negligence is a mode in which many kinds of harms may be
caused
by
not
taking
such
adequate
precautions.
II.
DEFINITION:
WINFIELD AND JOLOWICZ: According to Winfield and JolowiczNegligence is the breach of a legal duty to take care which results in
damage, undesired by the defendant to the plaintiff [Ref. Winfield and
Jolowicz
on
Tort,
Ninth
Edition,
1971,
p.
45].
In Blyth v. Birmingham Water Works Co., (1856) LR 11 Exch. 781;
ALDERSON, B. defined negligence as, negligence is the omission to do
something which a reasonable man.. would do, or doing something
which
a
prudent
or
reasonable
man
would
not
do.
In Lochgelly Iron & Coal Co. v. Mc Mullan, 1934 AC 1; LORD WRIGHT
said, negligence means more than headless or careless conduct,
whether in commission or omission; it properly connotes the complex
concept of duty, breach and damage thereby suffered by the person to
whom
the
duty
was
owing.
III. ESSENTIALS OF NEGLIGENCE: - In an action for negligence, the
plaintiff
has
to
prove
the
following
essentials:
1. DUTY TO TAKE CARE: One of the essential conditions of liability for
negligence is that the defendant owed a legal duty towards the
plaintiff. The following case laws will throw some light upon this
essential
element.

 In Grant v. Australian Knitting Mills Ltd., 1935 AC 85; the plaintiff

purchased two sets of woolen underwear from a retailer and contacted
a skin disease by wearing an underwear. The woolen underwear
contained an excess of sulphates which the manufacturers negligently
failed to remove while washing them. The manufacturers were held
liable as they failed to perform their duty to take care.
2. DUTY TO WHOM: Donoghue v. Stevenson, 1932 AC 562 carried the
idea further and expanded the scope of duty saying that the duty so
raised extends to your neighbour. Explaining so as to who is my
neighbour LORD ATKIN said that the answer must be the 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 which are called in
question.
3. DUTY MUST BE TOWARDS THE PLAINTIFF- It is not sufficient that the
defendant owed a duty to take care. It must also be established that
the defendant owed a duty of care towards the plaintiff.
In Bourhill v. Young, 1943 AC 92; the plaintiff, a fishwife, alighted from
a tram car. While she was being helped in putting her basket on her
back, a motor-cyclist after passing the tram collided with a motor car
at the distance of 15 yards on the other side of the tram and died
instantly. The plaintiff could see neither the deceased nor the accident
as the tram was standing between her and the place of accident. She
had simply heard about the collision and after the dead body had been
removed she went to the place and saw blood left on the road.
Consequently, she suffered a nervous shock and gave birth to a stillborn child of 8 months. She sued the representatives of the deceased
motor-cyclist. It was held that the deceased had no duty of care
towards the plaintiff and hence she could not claim damages.
4. BREACH OF DUTY TO TAKE CARE: Yet another essential condition for
the liability in negligence is that the plaintiff must prove that the
defendant committed a breach of duty to take care or he failed to
perform
that
duty.
In Municipal Corporation of Delhi v. Subhagwanti, AIR 1966 SC 1750; a
clock-tower in the heart of the Chandni Chowk, Delhi collapsed causing

the death of a number of persons. The structure was 80 years old

whereas its normal life was 40-45 years. The Municipal Corporation of
Dellhi having the control of the structure failed to take care and was
therefore,
liable.
In Municipal Corporation of Delhi v. Sushila Devi, AIR 1999 SC 1929; a
person passing by the road died because of fall of branch of a tree
standing on the road, on his head. The Municipal Corporation was held
liable.
5. CONSEQUENT DAMAGE OR CONSEQUENTIAL HARM TO THE
PLAINTIFF: The last essential requisite for the tort of negligence is that
the damage caused to the plaintiff was the result of the breach of the
duty.
The
harm
may
fall
into
following
classes:
physical
harm,
i.e.
harm
to
body;

harm
to
reputation;
harm to property, i.e. land and buildings and rights and interests
pertaining
thereto,
and
his
goods;

economic
loss;
and

mental
harm
or
nervous
shock.
In Achutrao Haribhau Khodwa v. State of Maharashtra (1996) 2 SCC
634; a cotton mop was left inside the body by the negligence of the
doctor.
The
doctor
was
held
liable.
IV. DEFENCES FOR NEGLIGENCE: In an action for negligence following
defences
are
available:1. CONTRIBUTORY NEGLIGENCE: It was the Common law rule that
anyone who by his own negligence contributed to the injury of which
he complains cannot maintain an action against another in respect of
it. Because, he will be considered in law to be author of his wrong.
Butterfield v. Forrester, (1809) 11 East 60; the defendant had put a
pole across a public thoroughfare in Durby, which he had no right to
do. The plaintiff was riding that way at 8O clock in the evening in
August, when dusk was coming on, but the obstruction was still visible
from a distance of 100 yards, he was riding violently, came against the
pole and fell with the horse. It was held that the plaintiff could not
claim
damages
as
he
was
also
negligent.

2. ACT OF GOD OR VIS MAJOR: It is such a direct, violent, sudden and

irresistible act of nature as could not, by any amount of human
foresight have been foreseen or if foreseen, could not by any amount
of human care and skill, have been resisted. Such as, storm,
extraordinary fall of rain, extraordinary high tide, earth quake etc.
In Nichols v. Marsland, (1875) LR 10 Ex.255; the defendant had a
series of artificial lakes on his land in the construction or maintenance
of which there had been no negligence. Owing to an exceptional heavy
rain, some of the reservoirs burst and carried away four country
bridges. It wa held that, the defendant was not liable as the water
escaped
by
the
act
of
God.
3. INEVITABLE ACCIDENT: Inevitable accident also works as a defence
of negligence. An inevitable accident is that which could not possibly,
be prevented by the exercise of ordinary care, caution and skill. it
means
accident
physically
unavoidable.
In Brown v. Kendal, (1859) 6 Cussing 292; the plaintiffs and
defendants dogs were fighting, while the defendant was trying to
separate them, he accidentally hit the plaintiff in his eye who was
standing nearby. The injury to the plaintiff was held to be result of
inevitable
accident
and
the
defendant
was
not
liable.
In Holmes v. Mather, (1875) LR 10 Ex.261, 267; a pair of horses were
being driven by the groom of the defendant on a public highway. On
account of barking of a dog, the horses started running very fast. The
groom made best possible efforts to control them but failed. The
horses knocked down the plaintiff who was seriously injured, it was
held to be an inevitable accident and the defendant was not liable.
In Stanley v. Powell, (1891) 1 QB 86; the plaintiff and the defendant,
who were members of a shooting party, went for pheasant shooting.
The defendant fired at a pheasant, but the shot from his gun glanced
off an oak tree and injured the plaintiff. It was held that the accident
was an inevitable accident and the defendant was not liable.
BOOKS

REFERRED:

1. Dr. S.K. Kapoor, Law of Torts and Consumer Protection Act, 6th
Edition 2003; Published by Central Law Agency, Allahabad.
2. M.N. Shukla, The Law of Torts and Consumer Protection Act, 18th
Edition 2010; Published by Central Law Agency, Allahabad.
3. R.K. Bangia, Law of Torts , 19th Edition, 2008, Publisher: Allahabad
Law
Agency.
4. Ratanlal and Dhirajlal, The Law of Torts, 24th Edition 1997 Reprint
2002; Published by Wadhwa and Company, Nagpur, India.
5. B.M. Gandhi, Law of Torts, Third Edition 2006 Reprint 2010;
Published by Eastern Book Company, Lucknow, India.