In certain circumstances a person who has suffered an injury will not be able to get damages from another for the reason that his own negligence has contributed to his injury; every person is expected to take reasonable care of himself. According to John G. Fleming, “Negligence is conduct that fails to conform to the standards required by law for safeguarding others (actionable negligence) or oneself (contributory negligence) against unreasonable risk of injury.” Thus, 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.
For example, a pedestrian tries to cross the road all of a sudden and is hit by a moving vehicle; he is guilty of contributory negligence. In this case, the defendant could completely escape his liability for the accident. Take another case, if the conductor of a bus invites passengers to travel on the roof of the bus, and one of the passengers travelling on the roof is hit by the branch of a tree and falls down and gets killed after the driver swerves the bus to the right to overtake a cart, there is not only negligence on the part of the conductor and driver but also contributory negligence on the part of the passengers (Rural Transport Service v Bezium Bibi AIR 1980 Cal 165).
Thus, we could visualise three situations regarding the liability for negligence. The ultimate question is: “who caused the accident?” In other words, whose act was decisive cause of the accident”?
The three situations are as follows:
(i) If it were the defendant, the plaintiff can recover in spite of his own negligence (Davies v Mann).
(ii) If it were the plaintiff, he cannot recover in spite of the defendant\’s negligence [Butterfield v Forrester (1809)11 East 60]. In that case, the defendant wrongfully obstructed a highway by putting a pole across it. The plaintiff, who was riding violently in the twilight on the road collided against the pole and was thrown from his horse and injured. If the plaintiff had been reasonably careful he could have observed the obstruction from a distance of 100 yards and thus avoided that accident.
(iii) If it were both plaintiff and defendant, the plaintiff can recover but there will be apportionment of liability i.e. the damages will be apportioned as between them according to the degree of their fault. According to Winfield, where the plaintiff’s negligence was so closely implicated with the defendant’s negligence so as to make it impossible to determine whose negligence was the decisive cause, the plaintiff cannot recover.
Rules to Determine Contributory Negligence
(1) What the plaintiff negligence means – Negligence of the plaintiff in relation to the defence of contributory negligence does not have the same meaning as is assigned to it as a tort of negligence. Here 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.
(2) Plaintiff’s negligence must be the operative cause of accident – It has also to be proved that it is plaintiff’s lack of care which contributed to the resulting damage. If the defendant’s negligence would have caused the same damage even if the plaintiff had been careful and the plaintiff’s negligence is not the operative cause of accident the defence of contributory negligence cannot be pleaded.
Thus, if the driver of an ‘overloaded’ rickshaw going on the correct side is hit by a bus coming at a high speed on the wrong side of the road, there is no contributory negligence of rickshaw driver even though the rickshaw is overloaded (Agya Kaur v P.R.T.Corpn. AIR 1980 P&H 183). Likewise, the mere fact that the motor cyclist was carrying three persons on the pillion seat did not lead to the inference of contributory negligence on his part. The mere refusal of an injured person to undergo surgery even when advised by medical expert may not amount to contributory negligence, especial when he was a diabetic patient.
(3) Test of prudent man – If the plaintiff has taken as much care as prudent man have taken in a similar situation, there is no contributory negligence. Thus, merely resting one’s elbow on a window sill of the bus going on a highway does not amount to contributory negligence (Sushma Mara v MP.S.R.T.Corpn. AIR 1974 M.P.68).
(4) Doctrine of alternative danger – Sometimes the plaintiff is permitted to take risk where some dangerous situation has been created by ok defendant and in such a case he will not be considered to be guilty of contributory negligence. The judgement of the plaintiff should not however, be rash.
Thus, when a train overshoots a platform a passenger is justified in taking the risk of getting down without platform rather than being carried further. Likewise, when a lady got locked in a public lavatory because of the defective lock and no attendant outside, and she injured herself while trying to find a way to climb out. She was entitled to recover.
(5) Presumption that others are statutory negligence– There are many circumstances when the plaintiff can take for granted that the defendant will be careful. The plaintiff is not liable of contributory negligence in such a case.
In Gee v Metropolitan Rly. Co. (1873) 8 QB 161, the plaintiff (a passenger) lightly leaned against the door of a carriage not long after the train had left the station. The door was negligently fastened and the same fell open with the result the passenger fell off the train. The plaintiff was entitled to recover. In the case of ‘statutory negligence’, the same having been arisen out of breach of a statutory obligation. the defence of contributory negligence cannot be availed of by the wrongdoer (defendant)
(6) Contributory negligence of children – What amounts to contributory negligence in the case of an adult may not be so in the case of a child if, however, a child is capable of appreciating the danger he may be held guilty of contributory negligence.
In Yachuk v Oliver Blias Co. Ltd. (1949) A.C.386, the defendant’s servants sold some gasoline to two boys aged 7 and 9 years. The boys falsely stated that they needed the same for their mother’s car. They actually used it for their play and one of them got injured. The Privy Council found that there was no evidence to show that the infant plaintiff appreciated the dangerous nature of gasoline and the defendant was held liable in full for the loss.
Doctrine of identification (Imputed contributory negligence) – It implies that if the independent contractor employed by the plaintiff has been negligent, the plaintiff would be identified with him and met with the defence of contributory negligence. The doctrine, however, has been overruled since an employer does not have control over the independent contractor. It has been held that in Indian conditions no passenger can be held liable for contributory negligence for the omission of the car driver or the truck driver/bus driver or train driver or a pilot.
In Oliver v Birmingham & Midland Omnibus Co. (1933) 1 KB 35. a four year old child was crossing the road along with his grandfather. Suddenly the defendant’s omnibus came there and in panic the grandfather left the child in the middle of the road and himself jumped off the road. The child got injured; but he was not identified with his grandfather and inspite of the contributory negligence on the latter’s part the child was entitled to recover compensation from the defendant.