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CONTRIBUTORY NEGLIGENCE
QUESTION BANK
Q.1. Define and explain the doctrine of “contributory negligence” and state exceptions if any.
Q.2. Defences of contributory negligence when it is not allowed?
SHORT NOTES
- Contributory Negligence.
SYNOPSIS
I] Meaning: –
II] Basis Of Doctrine Of Contributory Negligence:
III] Rule Of Contributory Negligence:
IV] The Rule Of Last Opportunity:-
V] Position In India:
VI] Burden Of Proving Contributory Negligence:-
VII] Defences For Contributory Negligence:
- Where a plaintiff has the right to rely on the duty of care of the defendant:-
- Liability of Carrier of Passengers: –
- Doctrine of Alternative danger: –
- Maritime Law:-
- Rescue Cases:-
- Contributory negligence of child:-
VIII] Law Reform (Contributory Negligence) Act, 1945.
I] Meaning: –
‘Contributory negligence may be defined as “negligence of the plaintiff”, in not avoiding the consequences arising from the negligence of some other person (i.e. defendant), when means and opportunity are afforded to do so”. In other words, the person who has suffered damage or injury is also guilty of some negligence and has contributed to the damage. It is the non-exercise by the Plaintiff of such ordinary care, diligence, and skill as would have avoided the consequence of the defendant’s negligence.
In State of Assam V/s. A. K. Talukdar
[1]Facts: The lease was made to extract sand. However, the lease could only extract 50% of the sand, owing to the state’s negligence in maintaining roads and adequate limitations on load-carrying capacity imposed by the State.
Court Held: – Rule of contributory negligence applied, and the State was ordered to allow Plaintiff to take out the remaining 50% sand.
II] Basis Of Doctrine Of Contributory Negligence:-
The doctrine is founded upon the maxim “injure non-remota causa sed Proxima spectator,” i.e., the law considers only the proximate cause, not the remote one. The law considers any act or conduct of the party injured (i.e. plaintiff) which may have immediately contributed to that result (i.e. accident).
III] Rule of Contributory Negligence:-
It is the Common law rule that anyone who, by his own negligence, contributes to the injury he complains of can not maintain an action against another in respect of it.
This rule of contributory negligence was laid down in
Butterfield V/s. Forester [2]
Facts: The defendant wrongfully obstructed a street by placing a pole across it. The Plaintiff was riding home at dusk when there was sufficient light to notice the obstruction, but he collided with a pole and was injured due to riding at high speed.
Held: he had no cause of action. Notwithstanding the defendant’s negligence, the Plaintiff might have avoided the accident using due care.
This common law rule laid down in the instant case was criticised as illogical, and now courts have modified it. This modified rule is called the “rule of the last opportunity,” propounded by John Salmond for the first time.
IV] The Rule of Last Opportunity[3]:-
The rule of the last opportunity means that he who had the last opportunity to avoid the accident, notwithstanding the negligence of others, is solely responsible.
This rule was first time laid down in Davis V/s. Mann [4]
Facts: – Plaintiff had negligently left his donkey with its legs tied on a highway. With his wagon, the defendant came at high speed and ran over the donkey.
Held: – that the defendant was liable, notwithstanding the contributory negligence of the Plaintiff, but the defendant had sufficient opportunity to avoid an accident by the use of reasonable care
V] Position In India:
In India, the rule of reducing compensation exists if the person injured has been found to have contributed to an accident. The Punjab and Haryana High Court has laid it down in Satbir Singh V/s. Balwant Singh [5]
VI] Burden Of Proving Contributory Negligence:-
The onus of proving contributory negligence on the part of an injured person rests in the first instance upon the defendant; the Plaintiff is not bound to prove its non-existence. The reason is that contributory negligence is the defence forwarded by the defendant in his defence of negligence. Therefore, the onus of proving it rests upon him. However, suppose the court finds itself unable to discover to what extent the negligence of the Plaintiff or that of the defendant contributed to bringing about the accident. In that case, the defendant is entitled to succeed in the claim.
VII] Defences for Contributory Negligence:-
1. Where a plaintiff has the right to rely on the duty of care of the defendant:-
There are certain circumstances where the Plaintiff is entitled to assume the absence of danger, and he is not bound to anticipate and take precautions against the possible negligence of the defendant. Contributory negligence is no defence when the Plaintiff suffers due to the defendant’s neglect of duty.
In Gee V/s. Metropolitan Rly. Co[6]
Facts: – Due to the loose handle of the door in the Railway, Plaintiff fell out of it and got injured.
Held: – Plaintiff could recover damages, although he could easily have avoided the accident by simply examining the door handle. Here he was not bound to take that precaution but was entitled to assume that the company’s servants had done their duty by fastening the door’s handle.
2. Liability of Carrier of Passengers: –
The Carrier of passengers owes the passengers a duty to take reasonable care to carry them safely.
3. Doctrine of Alternative danger[7]: –
This doctrine is called “the dilemma principle” or “choice of evils.” When the Plaintiff is put into imminent personal danger by the defendant’s wrongful act, and he makes a reasonable decision to avoid the danger and acts accordingly but still suffers injuries, the defendant is liable.
In Shyam Sunder V/s. State of Rajasthan [8]
Facts: The defendant’s truck caught fire due to negligent maintenance by the defendant. One of the occupants jumped out to save himself, but unfortunately, he was struck by the stone and died.
Held: The defendant was held liable because he had to choose between two dangers (e.g., facing fire or jumping down).
4. Maritime Law[9]:-
The defence of contributory negligence is also not applicable in Maritime law. However, seamen must observe the regulations to prevent collusion at sea.
5. Rescue Cases[10]:-
The defence of contributory negligence is not available in rescue cases if the Plaintiff has taken a risk, even of his death, in rescuing somebody.
Thus, for example, if the truck driver himself gets killed in an attempt to save a boy standing on the track from the danger of the approaching train, he cannot be held contributory liable.
6. Contributory negligence of child:-
The doctrine of contributory negligence as the defence does not apply against children with the same force as in the case of other persons.
VIII] Law Reform (Contributory Negligence) Act, 1945.
The Law Reform (Contributory Negligence) Act. 1945 abolished the contributory negligence doctrine in England. It lays down that if any person suffers damage as a result, partly by the fault of any other person, a claim for damages will not be defeated because of the fault of the person suffering from the damage. However, the damages recoverable in respect thereof are to be reduced to such an extent as the court thinks, equitable, having regard to the claimant’s share in damage.
At common law, if there was contributory negligence on the part of the Plaintiff, he could not recover damages at all. However, the Law Reforms (Contributory Negligence) Act 1945 allows him to recover damages.*****
[1] [AIR 2002 Gau 78]
[2] 1809
[3][3] शेवटी अपघात टाळण्याच्या संधीसंबंधी नियम [ अंत में, दुर्घटना की रोकथाम के अवसरों के संबंध में नियम ]
[4] 1842
[5] 1987
[6] 1873 Q. B.
[7] पर्यायी धोक्यासंबंधी तत्व [ वैकल्पिक खतरा सिद्धांत]
[8] AIR 1986 SC 890
[9] समुद्री कायदा [ समुद्र का कानून]
[10] बचाव कार्य [ बचाव कार्य]