Damage

Damage
It is also necessary that the defendant's breach
of duty must cause damage to the plaintiff.

The plaintiff has also to show that the damage

thus caused is not too remote a consequence of
the defendant's negligence. This we saw in the
last section.
 Damage
Damage can be:
1. Economic
2. Physical
3. Psychological
 Damage
The initial burden of making out at least a prima
facie case of negligence (including damage) as
against the defendant lies heavily on the
plaintiff, but once this onus is discharged, it will
be for the defendant to disprove it.
If the plaintiff is not able to prove negligence on
the part of the defendant, the defendant cannot
be made liable.
 Damage
As observed by Lord Wensleydale in Morgan v.
Sim
The party seeking to recover compensation for
damage must make out that the party against
whom he complains was in the wrong. The
burden of proof is clearly upon him, and he must
show that the loss is to be attributed to the
negligence of the opposite party. If, at the end,
he leaves the case in even scales, and does not
satisfy the court that it was occasioned by the
negligence or default of the other party, he
 Damage
Direct evidence of the negligence, however, is
not always necessary and the same may be
inferred from the circumstances of the case.
Though, as a general rule, the plaintiff has
to discharge the burden of proving
negligence on the part of the defendant,
there are, however, certain cases when the
plaintiff need not prove that and the
inference of negligence is drawn from the
facts.
There is a presumption of negligence
 Damage
When the accident explains only one thing and
that is that the accident could not ordinarily
occur unless the defendant had been negligent,
the law raises a presumption of negligence on
the part of the defendant.

In such a case, it is sufficient for the plaintiff to

prove accident and nothing more.

The defendant can, however, avoid his liability

 Damage
For the maxim res ipsa loquitur to apply, it is
necessary that the event causing the accident
must have been in the control of the defendant.
Thus, when the circumstances surrounding the
thing which causes the damage are at the
material time exclusively under the control or
management of the defendant or his servant
and the happening is such as does not occur in
the ordinary course of things without negligence
on defendant's part, the maxim applies and the
burden of proof is shifted from the plaintiff to the
 Damage
Municipal Corporation of Delhi v. Subhagwanti

Res ipsa loquitor was applied.

 Damage
The Supreme Court held that the fall of Clock
Tower tells its own story in raising an inference
of negligence on the part of the defendant.
Since the defendants could not prove absence of
negligence on their part, they were held liable.
 Damage
Pillutla Savitri v. G.K. Kumar
The plaintiff's husband, who was a practicing
Advocate at Guntur, was relaxing in front of his
tenanted premises on the ground floor.
Suddenly, a portion under construction on the
first floor of the building collapsed and the sun-
shade and parapet wall fell down on the
Advocate, resulting in his death.
The principle of res ipsa loquitur was applied
and there was presumed to be negligence on
the part of the defendant, who were getting the
 Damage
Chairman, M.P.E.B., Rampur, Jabalpur v. Bhajan
Gond
In this case, live electric wires maintained by the
defendants had broken and were lying in a field.
The wife of plaintiff came in contact with the
wires and died of electrocution.
Inference was drawn that the defendants, i.e.,
the Electricity Board was not properly
maintaining the electric transmission lines.
The Electricity Board was held liable to pay
damages to the claimant.
 Damage
Foreign matter left inside after surgery
Aparna Dutta v. Apollo Hospital Enterprises Ltd.
The plaintiff got herself operated in the
defendant hospital.
Due to the negligence of the hospital surgeon,
who performed the operation, an abdominal
pack was left in her abdomen. The same was
removed by a second surgery.
Leaving foreign matter in the body during the
operation was held to be a case of res ipsa
loquitur.
 Damage
When the accident is capable of two
explanations, such a presumption is not raised
Walkelin v. London and South Western Railway
Co.
Dead body of a man was found near a railway
crossing on the defendant's railway. The man
had been killed by a train at night.
In an action by the widow, it was held that from
the facts, it could not be reasonably inferred
that res ipsa loquitor applies.
 Damage
Lord Halsbury said: "One may surmise, and it
was but surmise and not evidence, that the
unfortunate man was knocked down by a
passing train while on the level crossing; but
assuming in the plaintiff's favour that fact to be
established, is there anything to show that the
train ran over the man rather than the man ran
against the train?"
 Damage
Rebuttal of the presumption of negligence
If the defendant is able to prove that what
apparently seems to be negligence was due to
some factors beyond his control he can escape
liability.

Nagamani v. Corporation of Madras

An iron post, on a pavement, belonging to the
Madras Corporation fell for unknown reasons on
a passer-by causing head injuries and ultimate
death of the person.
 Damage
The presumption of negligence on the part of
the Corporation was raised but the Corporation
was able to rebut the presumption by proving
that
the steel column which had fallen had been
erected only 30 years ago whereas it had a
normal life of 50 years,
such columns were securely fixed on a cement
pavement in an iron socket sunk three feet deep
and
that occasional inspection of the pillar including
 Damage
However, in Kallulal v. Hemchand
The wall adjoining a highway collapsed on a day
when there was 2.66 inches of rain.
The Madhya Pradesh High Court held that the
presumption of negligence in keeping the house
in disrepair could not be rebutted by proving
that the house had collapsed on the day when
there was a rainfall of 2.66 inches, as 2 to 3
inches of rain during the rainy season did not
constitute an act of God and the same ought to
have been anticipated and guarded against.
 Nervous Shock
This branch of law is comparatively of recent
origin.

These kinds of harms are often referred to as

soft harms as opposed to hard harms, meaning
psychological injury as opposed to physical
injury.

It provides relief when a person may get some

physical injury or may not suffer any physical
injury but psychological injury, but the cause of
 Nervous Shock
Wilkinson v. Downton
The defendant was held liable when the plaintiff
suffered nervous shock and got seriously ill on
being told falsely, by way of practical joke, by
the defendant that her husband had broken both
the legs in an accident.
 Nervous Shock
Dulieu v. White and Sons
The defendant's servant negligently drove a
horse van into a pub and the plaintiff, a
pregnant woman, who was standing there
behind the bar, although not physically injured,
suffered nervous shock, as a result of which she
got seriously ill and gave premature birth to a
stillborn child.
The defendants were held liable.
 Nervous Shock
Kennedy, J. although recognized an action for
nervous shock but he imposed a very great
limitation when he held that for such an action,
the shock must be such as arises from
reasonable fear of immediate personal injury to
oneself.
This meant that if by the negligence of X,
danger is created for A, A can bring an action, if
he suffers nervous shock.
If, on the other hand, seeing or hearing of the
danger to B, another person, say A, suffers
 Nervous Shock
However, as in several areas of tort law, not
every decision and court has agreed with the
above mentioned limitation imposed by Dulieu
v. White and Sons.

Hambrook v. Stokes Bros., recognized an action

when danger of physical injury to B caused a
nervous shock to A. The facts of the case are as
follows:
The defendants employee left a lorry at the top
of a steep narrow street unattended, with the
 Nervous Shock
The plaintiffs wife had been walking up the
street with her children and had just parted with
them a little below.
She saw the lorry rushing around the bend
towards her and further below where her
children were.
She became very frightened for the safety of her
children, who by that time were out of sight and
who she knew must have met the lorry in its
travels.
She was almost immediately afterwards told by
 Nervous Shock
As a consequence of her fright and anxiety she
suffered a nervous shock which eventually
caused her death.
The court held that the husband was entitled to
recover for the shock inflicted on her due to the
reasonable fear of the immediate injury to her
child from the runaway lorry.
An express distinction was to be made between
shock caused by what the mother saw with her
own eyes and what she might have been told by
bystanders, liability being excluded in the latter
 Nervous Shock
Persons outside the zone of physical danger
were nevertheless owed a duty of care, because
injury by shock was foreseeable in such
circumstances.
 Nervous Shock
Although, as has been stated above, it is not
necessary that the plaintiff himself must be in
the area of physical impact to bring an action for
nervous shock, it is, however, necessary that
the plaintiff must be so placed where injury
through nervous shock can be foreseen.
Where any kind of injury to the plaintiff cannot
be foreseen by the defendant, the defendant
does not owJ any duty of care to the plaintiff and
will not be liable for the loss suffered by him.
 Nervous Shock
In King v. Phillips the defendant's servant was
negligently backing a taxi-cab into a boy on a
tricycle. The boy's mother, who was in an
upstairs window, at a distance of about 70 to 80
yards, could only see the tricycle under the taxi-
cab and heard the boy scream but could not see
the boy.
The boy and the tricycle got slightly damaged
but the mother suffered nervous shock.
The mother was held to be wholly outside the
area of reasonable apprehension and the
 Contributory Negligence
Explaining the concept of contributory
negligence, the Supreme Court in Municipal
Corporation of Greater Bombay v. Laxman Iyer,
observed :
Where an accident is due to negligence of both
parties substantially, there would be
contributory negligence and both would be
blamed.

If A, going on the wrong side of the road, is hit

by a vehicle coming from the opposite direction
 Contributory Negligence
Contributory negligence is applicable solely to
the conduct of a plaintiff.

Here plaintiff's negligence does not mean

breach of duty towards the other party but it
means absence of due care on his part about
his own safety.
Additionally, 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
 Contributory Negligence
Agya Kaur v. Pepsu Road Transport Corporation
A rickshaw which was being driven on the
correct side of the road was hit by a bus coming
on the wrong side of the road at a high speed.
The rickshaw puller at that time was carrying
three adults and a child in the rickshaw.
It was held that although the rickshaw was
overloaded but that factor did not contribute to
the consequences.
 Contributory Negligence
It was observed:
Even if the rickshaw was without a passenger
or with one or two passengers, the accident
would not have been avoided and, therefore, the
mere fact that the deceased rickshaw puller was
carrying three adults and a child would be no
ground to make any deduction in the award of
compensation on the ground of contributory
negligence."
 Contributory Negligence
Earlier, the rule was that in cases of
contributory negligence, the plaintiff was
to fail.
Butterfield v Forrestor
In this case, the defendant had put up a pole
across a street road, which was visible from 100
yards.
The plaintiff came galloping on his horse, rode
against the obstruction and fell with the horse.
In a suit for damages, the plaintiff failed as he
too was a fault for not slowing down when the
 Contributory Negligence
But his was considered to be a very harsh and
unjust rule, denying the plaintiff relief even
when the major responsibility of the damage
suffered rested on the defendant.
To change this situation, the rule of last
opportunity was devised, which meant that if
the defendant had the last opportunity to avoid
the accident, he was held solely responsible for
the injury even where plaintiff was also
negligent.
 Contributory Negligence
Davies v. Mann
In this case, the plaintiff fettered the forefeet 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, B, "a man might
justify the driving over goods left on a public
 Contributory Negligence
The application of the rule of 'Last Opportunity'
was further defined in the case of British
Columbia Electric Co. v. Loach
In this case, 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
 Contributory Negligence
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 the part of
the wagon's driver, the tram could have been
stopped and the accident averted.
The personal representatives of the deceased
brought an action against the tramway
company.
 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 which
they had incapacitated themselves from availing
because of their own negligence.
 Contributory Negligence
Apportionment of Damages
However, this was finally modified and now,
where the negligence of both the parties
contributes to the damage for which damages
are being claimed, the court can now apportion
the blame and reduce the damages to the
extent of the claimants share in the
responsibility for the damage.
 Contributory Negligence
In UK, a law was passed in 1945 to this effect:
Law Reform (Contributory Negligence) Act,
1945
Section 1(1) "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
 Contributory Negligence
Thus, generally speaking, 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 per cent.

Doctrine of apportionment of damages in

India
In India, there is no Central Legislation
corresponding to the Law Reform (Contributory
Negligence) Act, 1945 of England.
However, the position brought about by the Law
 Contributory Negligence
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 which 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
Rural Transport Co v Bezlum Bibi

Whether deceased was guilty of contributory

negligence? -
Held, no - Not only deceased but a number of
passengers were invited by appellant and its
employees to travel on roof - Contributory
negligence would be no defence because
deceased had a right to reasonably assume that
defendant would do things rightly and carefully
so as to ensure a safe journey for him.
 Contributory Negligence
In this case - 50% of compensation was reduced
on account of contributory negligence by the
lower tribunal. But the High Court later found
that there was not contributory negligence to
begin with.
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.
 Contributory Negligence
Subhakar v. Mysore State Road Transport
Corporation
The Court reduced the compensation payable to
the extent the claimant was himself at fault.
There, the claimant appellant who was going on
a cycle suddenly turned to the right side of the
road.
He was hit by the respondent's bus who was
also driving rashly, resulting in his fall and injury
to his leg necessitating hospitalization for about
2 1/2 months.
 Contributory Negligence
Vidya Devi v. M.P. Road Transport
Corporation
In that case, a motor cyclist driving
negligently dashed against a bus and died in
the accident.
The driver of the bus was also found to be
negligent in not keeping a good look out so
as to avert a possible collision.
It was held that between the deceased motor
cyclist and the driver of the bus, the blame
 Contributory Negligence
In Harris v. Toronto Transit Commission, 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.

However, in Sushma Mitra v. Madhya Pradesh

State Road Transport Corporation, the plaintiff
was travelling in a bus resting her elbow on a
window sill. The bus at that time was moving on
a highway. She was injured when hit by a truck
 Contributory Negligence
When sued for the injury, the defendant took
the plea that the act of resting elbow on a
window sill was an act of contributory
negligence.
The Madhya Pradesh High Court did not allow
this defence.
It was held that as she acted like a reasonable
passenger while the bus was moving on the
highway, she was entitled to claim
compensation.
 Contributory Negligence
It was observed:
... it is clear that the plaintiff cannot be held to
be guilty of contributory negligence in the
circumstances of the case. It is true that in
crowded streets of big towns, the passengers,
who are adult, are expected to keep their limbs
within the carriage and contributory negligence
may be inferred in certain circumstances if they
fail to take this safety measure, but here we are
dealing with the case where the plaintiff was
injured while the bus was moving on a highway
 Contributory Negligence
Mrs. Sydney Victor v. Janab S. Kadar Sheriff
Mrs. Victor, who was travelling in a bus was
holding a window cross-bar of the bus while her
right thumb was gripping the window bar on its
outer side.
The lorry coming from the opposite direction
was being driven negligently.
The sides of the two vehicles hit each other, as a
result of which Mrs. Victor's thumb was
completely severed.
The plea of the defendant, that gripping of the
 Contributory Negligence
It was held that mere gripping of the window
cross-bar in a position in which the right thumb
was gripping the bar on its outside side would
not be negligent act on the part of the injured
especially when the vehicle was on a broad
highway and not moving in any crowded place.
 Contributory Negligence
When the plaintiff is negligent but his
negligence has not contributed to the harm
suffered by him, the defence of contributory
negligence cannot be pleaded.
In Municipal Board, Jaunpur v. Brahm Kishore,
the plaintiff, who was going on his cycle without
headlight on a road in the darkness, fell into a
ditch dug by the defendant who had not
provided any light, danger signal or fence to
prevent such accidents in the darkness.
It was held that the accident could not have
 Contributory Negligence
Contributory Negligence cannot be
pleaded in certain Motor Vehicle Accidents
The Motor Vehicles Act, 1988 fixed amount of
compensation to the accident victim.
In case of such a claim, the right to claim
compensation is not affected by any wrongful
act, neglect.
 Contributory Negligence
The Doctrine of Alternative Danger
Sometimes, the plaintiff is justified in taking
some risk where some dangerous situation has
been created by the defendant.
The plaintiff might become perplexed or nervous
by a dangerous situation created by the
defendant and to save his person or property, or
sometimes to save a third party from such
danger, he may take an alternative risk.
The law, therefore, permits the plaintiff to
encounter an alternative danger to save
 Contributory Negligence
Jones v. Boyce
In that case, the plaintiff was a passenger in the
defendant's coach and the coach was driven so
negligently that the plaintiff was alarmed.
With a view to saving himself from the danger
created by the defendant, he jumped off the
coach and broke his leg.
If the plaintiff had remained in his seat, he
would not have suffered much harm because
the coach was soon after stopped.
 Contributory Negligence
It was held that the plaintiff had acted
reasonably under the circumstances and he was
entitled to recover. Lord Ellenborough said :
"To enable the plaintiff to sustain the action, it is
not necessary that he should have been thrown
off the coach, it is sufficient if he was placed by
the misconduct of the defendant in such a
situation as obliged him to adopt the alternative
of a dangerous leap or to remain at certain peril;
if that position was occasioned by the default of
the defendant, the action may be supported."
 Contributory Negligence
Presumption that others are careful
There are many circumstances when the plaintiff
can take for granted that the defendant will be
careful.

Traffic in the streets would be impossible if the

driver of each vehicle did not proceed more or
less upon the assumption that the drivers of all
the other vehicles will do what is their duty to
do, namely, observe the rules regulating the
traffic on the streets. Toronto Railway Co. v.
 Contributory Negligence
Contributory Negligence of Children
What amounts to contributory negligence in
the case of a mature person may not be so in
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.
 Contributory Negligence
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 does not
have the road sense or experience of his or
her elders and, therefore, the plaintiff, in this
case, cannot be blamed for contributory
negligence.

If, however, a child is capable of appreciating

 Contributory Negligence
The Doctrine of Identification
The defence of contributory negligence can
be taken not only when the plaintiff himself
has been negligent but also when there is
negligence on the part of the plaintiff's
servant or agent
Provided that the master himself would have
been liable for such a negligence if some
harm had ensued out of that.
 Contributory Negligence
Children in custody of adults
The doctrine of identification was at one time
applied in case of children in charge of an adult,
and, as such, if a child, who was incapable of
taking care of himself, was in the custody of
some adult and was injured due to the
negligence of the defendant and also the adult
in whose custody he was, he could be met with
the defence of contributory negligence as he
was identified with the adult having his custody
Wait v. North Eastern Railway
 Contributory Negligence
However, the doctrine of identification has
been considered to be overruled even in the
case of children in the custody of an adult
since the decision in The Bermina

Oliver v. Birmingham Midland Omnibus Co.

A child of four years was in the care of his
grandfather and was crossing a road along
with him. Suddenly, the defendant's omnibus
came there and the grandfather being
 Contributory Negligence
The child was struck by the defendant's
omnibus and injured. He was not identified
with his grandfather and in spite of the
contributory negligence on the part of the
grandfather, the child was entitled to recover
compensation from the defendant.
 Composite Negligence
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."
 Composite Negligence
Nature of liability in case of Composite
Negligence
The liability of the composite tortfeasors is
joint and several.
No one of the tortfeasors is allowed to say
that there should be apportionment, and his
liability should be limited to the extent he is
at fault.
 Composite Negligence
The judgment against the composite
tortfeasors is for a single sum without any
apportionment in accordance with the fault
of various tortfeasors, and the plaintiff can
enforce the whole of his claim against
anyone of the defendants, if he so chooses.

The defendant, who has paid more than his

share of the liability may claim contribution
from the other defendants.
 Composite Negligence
Amthiben v. Superintending Geophysicist,
O.N.G.C.,
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
 Composite Negligence
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.
 Composite Negligence
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.
 Composite Negligence
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.
 Composite Negligence
As between the composite tortfeasors, i.e.,
the driver of the truck and the driver of the
jeep, the liability was apportioned at 75%
and 25% respectively.
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.