Contributory negligence basically means ignorance from both the parties involved. If a person is driving a car without any breaks met with an accident with another person who was driving on the wrong side of the road. This results in contributory negligence. It’s a defence available to the defendant in case of contributory negligence which prevents the plaintiff to get compensation.
Contributory negligence is the ignorance of due care on the part of the plaintiff to avoid the consequences of the defendant’s negligence. This concept is loosely based on the maxim- “Volenti non fit injuria” (injury sustained voluntarily). It means If a person is not taking due diligence in order to avoid consequences resulting out from the negligence of the defendant the liability of negligence will be on both of them.
Principles of contributory negligence
If the plaintiff is himself negligent for taking due care in order to avoid consequences and becomes the direct cause of the damages, he is not entitled to receive any compensation.
If both the plaintiff and the defendant have taken reasonable measure and ordinary care to such extent where they both wanted to avoid such consequences then the plaintiff can’t sue the defendant.
The burden of proving contributory negligence
The burden of proof lies over the defendant. In order to get the defence of contributory negligence, the defendant must prove that the plaintiff is responsible as him, and ignored due diligence which could have avoided such consequences arising from the negligence of the defendant.
Great central rly. V. Bates(1940) – The plaintiff sustained injuries as he fell down from the shaft of the lift because he went backwards opened the doors and stepped through it assuming that the lift would still be in place. He was guilty of contributory negligence and therefore was not entitled to recover compensation for the damages sustained.
Hansraj v. Tram CO., – A attempted to board a moving tramcar and end up getting injured. He sued the company. It was held that if he would have boarded in a tramcar, not in motion, it would have been easier for him to get a firm grip in the handlebar and settle down easily. The company was not held liable.
When the defence of contributory negligence is not available?
When it is not necessary for the plaintiff to take due care but the defendant was legally obligated to perform such duty of care failure of which will result in the liability of negligence for the defendant.
For eg.- A was travelling on a train with his brother. In order to show him something outside the window got up and placed his hand on the window which suddenly flew open. Though he could have avoided the accident, it was the duty of the staff to properly screw the window which would have not resulted in such an accident.
Butterfield v. Forrester, (1809) – In the instant case due to the ignorance of the plaintiff in order to take due care while driving, he met with a collision with the pole which was wrongfully obstructed by the defendant. So without considering the negligence of the defendant, the plaintiff could have avoided the accident.The second situation is when the defendant has time to recourse and take reasonable measures in order to avoid an accident.For eg.- If A is driving a car without headlights at a galloping speed sees B driving in the wrong side from a long distance. He has the time to recourse and take due diligence to avoid an accident.
Davis v. Mann-
In the instant case, the defendant ran over the donkey of the plaintiff while driving at a fast pace. He was negligible and was entitled to pay compensation to the plaintiff.
The third situation is when a defendant will not get the defence of contributory negligence when he creates a situation under which the plaintiff gets reasonable apprehension of imminent threat or menace to his life and in order to escape such danger he acted rationally and avoided due care of diligence.
For eg. A, a bus driver was driving negligently and rashly due to which an accident was about to take place. But B acting prudently jumped out of the bus and sustained injuries. A is liable to pay for the damages sustained by B.
The fourth situation is that contributory negligence is not applicable to maritime law.
The fifth situation is that contributory negligence is not applicable is not over children. The ability to think rationally and prudently like an adult is absent in a child. Proper allowances are to be made for the lack of experience and their minute sense of making any judgment. Though if they sustain any damage by their own actions they will be liable for the negligence.
Rule of last opportunity
The term rule of the last opportunity means the last opportunity to avoid an accident. If in a situation both the plaintiff and the defendant are negligent on their part and whosoever has the last opportunity of avoiding such consequences fails to do so will be held responsible for such accident solely.
Illustration – A is out for a walk with his dog but without a leash on him. The dog suddenly ran towards the road and got hit by B who was driving rashly. Here B had the last opportunity to avoid that accident by pushing the brake pedal.
Limitations
Where the defendant is aware of the gravity of the consequences and fails to take proper measure, he will be held liable. For instance in the given example above if, B sees the dog from a long distance and still avoids to take reasonable care which resulted in the death of the plaintiff, he will be held liable.
The defendant would have the last opportunity but according to law, it is equal to one he did for his own negligence.
Davies vs Mann – In the instant case, the defendant while driving a wagon killed the donkey of the plaintiff which was fettered at the side of the road. It was held that the defendant had the last opportunity to avoid the accident by taking appropriate measures.
Rule of Avoidable losses-
Rule of avoidable losses means the duty of an injured person to mitigate the losses or damages. The plaintiff after sustaining injury could make appropriate efforts in order to reduce the effect of such injury. This rule acts to disqualify the plaintiff to take any award for the injury if the defendant can prove that the plaintiff ignored to make such efforts in order to reduce the losses.
Strict liability
Strict liability means the liability of a person for causing damages even if it is not his fault. This liability arises if a person keeps such dangerous substances in his premise that is likely to cause mischief to the public if it escapes the premise.
In Rylands vs Fletcher the defendant employed some independent contractor in order to build a reservoir in which he had no active participation. While the independent contractors were in the middle of the construction, the discovered old coal shafts which were not covered properly. Instead of taking reasonable measure and covering the shafts they chose to work. This resulted in the immediate burst of the reservoir which flooded the mine of the plaintiff. Plaintiff brought a suit against the defendant in which it was held that the defendant was responsible for the damages.
Contributory negligence is not a defence in case of strict liability though the negligence or the ignorance from the side of the plaintiff is used to reduce the compensation awarded for the damages.
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