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.

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 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.

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 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.

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 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 care……………………………………………………………………………………………33

Chapter 4

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 4. Distinction between contributory and composite negligence
…………………………………………………………………………………………….………………..35

Chapter 5

5. Conclusion and Suggestions……………………………………………………………..37

Bibliography…………………………………………………………………………………….39

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 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 Lloyd’s 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.

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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.

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 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

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

1
. P.S.A. Pillai, Law of Tort, Eastern Book Company, Lucknow, 2009, p.160.
2
. Ibid.

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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 plaintiff’s 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.

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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

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

4
. [1943] AC 448.
5
. Billions and Sons v. Riden, [1958] AC 240.
6
. AIR [1996] SC 2111.
7
. M.N. Shukla, The Law of Torts, Central Law Agency, Allahabad, 2008, p.243.

PAGE10
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

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.

8
Ibid.
9
. [1932] AC 532.

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 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
10
of Alderson B. in Blyth v. Birmingham Waterworks Co. Negligence 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.

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.

10
. [1856] 11 Ex. 781 at 784.

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 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.

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.

11
. [1964] AC 465.
12
. Dillon v. Legg, 68 Cal. 2d 728 [1968] and Molien v. Kaiser Foundation Hospitals, 27 Cal. 3d 916 [1980].

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 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 defendant’s fault. It is one’s 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.

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 defendant’s 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 A’s 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.
13
. Choudhari Fuljibhai v. Fakirmohaned, [1982] GLH 578.
14
. 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.

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 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 claimant’s 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.

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 plaintiff’s contributory
negligence as in the case of a defendant’s 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
claimant’s share in the responsibility of damages.

By s.4 Damage includes loss of life and personal injury. It also includes economic loss19
and injury to property. By the same section fault means negligence, breach of statutory duty or

17
. Pramod Kumar Rasiklal Zaveri v. Karamsy Kunvarji Tak, [2002] 6 SCC 455.
18
. [1886] ACJ 264.

PAGE15
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 defendant’s 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

19
. Platform Home Loans Ltd v. Oyston Shipways Ltd [2000] 2 AC 190.
20
. 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.
23
. [2000] 1 AC 360.
24
. [2002] UKHL 43.

PAGE16
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.

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 company’s level crossing when the company’s 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

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.

PAGE17
and appointment of damages now reflect the comparative importance of each party’s fault. The
position is now equitable.28

2.4 Causation of Damages:

In the majority of cases the claimant’s 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 claimant’s 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.

28
. D.D. Basu, The Law of Torts, Kamal Law House, Kolkata, 2010, p.71.
29
. O’Connel 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).
33
. [1952] 2 QB 608.
34
. Moor v. Nolan [1960] 94 ILTR 153.

PAGE18
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

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 defendant’s 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

35
. Retrieved from, http://sixthformlaw.info/02_cases/mod3a/aqa/_cases_remedies_contrib.htm, at 1:21 on Oct 25,
2010.
36
. Radley v. L. and.N. W. Rly. [1876] 1 AC 754.
37
. [1992] 1 AC 129.

PAGE19
the immediately subsequent fault of the Radstock in increasing her speed with knowledge of the
danger caused by the Volute’s 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

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 Dale’s 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 deceased’s
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

38
. T. Weir, A Casebook on Tort, Sweet and Maxwell Ltd., London, 2004.
39
. [1953] 2 All ER 478.

PAGE20
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 ship’s 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 plaintiff’s
himself.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
40
. [1954] 1 Lloyd’s Rep 395.
41
. 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.

PAGE21
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 B’s negligence. And here, mere absence of
negligence on A’s part would not be sufficient to show that A was guilty of contributory
negligence. Moreover A had no knowledge of danger caused by B’s negligent act of letting a live
electric wire fall from a pole on the land in the way.43

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
Court’s 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 passenger’s 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

43
. A. Singh, Introduction to Law of Torts, Wadhwa and Company Law Publisher, New Delhi, 2001, p.67.
44
. 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.
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.

PAGE22
 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 plaintiff’s 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.

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
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.

PAGE23
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 defendant’s 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.

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.

53
. [1816] 1 Stark 493.
54
. [1841] 1 QB 29.
55
. [1898] 2 QB 320.
56
. [1933] 2 KB 71.

PAGE24
 In Gough v. Thorne57, while dealing with the negligence on the part of a child and the
degree of a child’s responsibilities, Lord Denning , M.R. said that:-

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 child’s 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 plaintiff’s 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
plaintiff’s action? In Thorogood v. Bryan59, plaintiff was identified with such an independent

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.

PAGE25
contractor and the negligence of the independent contractor could be pleaded as a defense to an
action brought by the plaintiff.60

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

60
. R. Ranchhoddas and D. Keshavlal Thakore, The Law of Torts, Wadhwa and Company Nagpur, New Delhi, 2007,
p.176.
61
. [1881] 18 AC 1.
62
. V. Harpwood, Principles of Tort Law, Cavendish Publishing Ltd., London, 2000, p.145,

PAGE26
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

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.

63
. Section 1, Maritime Convections Act, 1911.

PAGE27
2.12.4 Volenti non fit injuria:-

The theory of plaintiff’s 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

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

64
. J. Murphy, Street on Torts, Oxford University Press, New York, 2006, p.201.
65
. [1940] AC 165.
66
. P.S.A. Pillai, Law of Tort, Eastern Book Company, Lucknow, 2009, p.165.

PAGE28
 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

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

67
. G.H.L. Fridman, Fridman on Torts, Waterloo Publishers, London, 1990, p.234.
68
. AIR [1977] Gau 31.

PAGE29
 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.

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.

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.

PAGE30
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’.

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

73
. [1968] ACJ 1 (M.P.).
74
. General Manager, Karnataka State Road Transport Corpn. v. Krishnan, AIR [1981] Kant 11.
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.
77
. Manjula Devi v. Manjushri, [1968] ACJ 1 (M.P.).
78
. 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.

PAGE31
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

85
. Karnataka S.R.T. Corp. v. Krishnan, AIR [1981] Kant. 11.
86
. [1996] ACJ 529 (M.P.).
87
. [1973] ACJ 531 (P. and H.).
88
. AIR [1989] P. and H. 82.

PAGE32
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

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.

89
. [1976] ACJ (72) (Guj.).
90
. S. Deakin, A. Johnston and B. Markesins, Markesinis and Deakin’s Tort Law, Oxford University Press Inc., New
York, 2003, p.178.

PAGE33
 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 plaintiff’s 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.

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 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

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 England95 and India96. The defendant’s
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
97
Ltd. held 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

93
. AIR [1994] Orissa 220
94
. WVH Rogers, Winfield and Jolowicz on Tort, , Sweet and Maxwell Ltd., London, 2006, p. 89.
95
. Law Reform (Contributory Negligence) Act, 1945.
96
. Rural Transport Service v. Belgium Bibi, AIR [1980] Cal. 165.
97
. AIR [1975] Punj-Har. 259.

PAGE35
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 railway’s 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:-

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.

98
. AIR [1976] Raj 173.

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 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 one’s 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.

PAGE37
 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.

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 Bibliography:-

1. Basu, D. D., the Law of Torts, Kamal Law House, Kolkata, 2010.
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University Press Inc., New York, 2003.
3. Fridman, G.H.L., Friedman on Torts, Waterlow Publishers, London, 1990.
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5. Kidner, R., Casebook on Torts, Oxford University Press, New Delhi, 2002.
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8. Pandey, J.N., Law of Torts and Consumer Protection Act, Central Law Publications,
Allahabad, 2005.
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Nagpur, New Delhi, 2007.
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12. Shukla, M.N., the Law of Torts, Central Law Agency, Allahabad, 2008.
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at 1:21 on Oct 25, 2010.
17. Retrieved from, http://www.duhaime.org/LegalDictionary/C/ContributoryNegligence.aspx, at
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Contributory-Negligence.html, at 23:50 on Oct 26, 2010.
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Contributory-Negligence-116991.asp, at 15:31 on Oct 27, 2010.

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