Law and You > Law of Tort > Defence of Contributory Negligence in Tort Law

Introduction
General Defences in Tort Law
Defence of Contributory Negligence
Key Ingredients of Defence of Contributory Negligence
Examples of Defence of Contributory Negligence
Case Laws for Defence of Contributory Negligence
Conclusion
Related Topics

The word “Tort” is of a French origin which has been further derived from the Latin word “Tortum” meaning “to twist” and implies conduct which is tortious⁴or twisted. It is a species of civil injury or wrong. A tort is a wrongful act or an infringement of a right (other than under contract) leading to legal liability and for which civil courts award compensation. Section 2 of Limitation Act 163 defines it as ‘a civil wrong which is not exclusively the breach of contract or breach of trust’. For example, to stop or obstruct a person to perform his legal right is a tort. (Case Ashby v. White), In this article, we shall discuss the concept of tort and law of tort. In tort law, a defence is a legal justification or excuse that a defendant may raise to avoid liability for committing a tort (a wrongful act). These defences either negate the elements of the tort or justify the defendant’s actions under the circumstances. In this article, let us discuss defence of contributory negligence in tort law.

General Defences in Tort Law:

In tort law, several defences are available to a defendant who is being sued for a tort. These defences can either completely absolve liability or reduce the amount of damages. Here’s a list of common defences in tort:

• Consent (Volenti Non Fit Injuria): If the plaintiff consented to the act that caused the harm, the defendant may not be liable. Consent can be express or implied.
• Self-Defence: A defendant can avoid liability by proving that the tortious act was necessary to protect themselves from harm. The force used must be reasonable and proportionate to the threat.
• Defence of Others: Similar to self-defence, a defendant may claim they acted to protect someone else from harm. Again, the force used must be reasonable.
• Defence of Property: A person is allowed to use reasonable force to protect their property. However, the force must be proportional and not excessive.
• Necessity: This defence applies when a tortious act was done to prevent greater harm to the defendant, others, or property. For example, trespassing to escape an imminent danger may be excused under necessity.
• Statutory Authority: If the defendant was acting under statutory authority (i.e., following the law or legal procedures), they may be excused from liability, even if harm resulted.
• Contributory Negligence: If the plaintiff’s own negligence contributed to their injury, they may be barred from recovering damages (in jurisdictions that still recognize contributory negligence as a complete defence).
• Comparative Negligence: Similar to contributory negligence, but in this case, damages are apportioned based on the relative fault of the plaintiff and defendant. The plaintiff’s recovery may be reduced but not entirely barred.
• Act of God (Force Majeure): A defendant may avoid liability if the harm was caused by an extraordinary natural event (such as a flood, earthquake, or storm) that was unforeseeable and unavoidable.
• Inevitable Accident: This defence asserts that the incident causing harm was unavoidable, even with reasonable care, and therefore, the defendant should not be held liable.
• Mistake: A defendant may argue that the tortious act was the result of a mistake, but this defence is generally weak unless the mistake was reasonable and unavoidable.
• Private Defence: A person may defend themselves or their property against the wrongful acts of others, provided the defence is proportionate to the threat.
• Duress: A defendant may claim they were forced to commit a tort due to the threat of harm, making their actions involuntary.
• Illegality (Ex Turpi Causa Non Oritur Actio): If the plaintiff was involved in illegal activity at the time of the tort, the defendant might avoid liability on the basis that a claim cannot arise from the plaintiff’s wrongful conduct.
• Limitation Period (Statute of Limitations): A claim in tort must be brought within a specified time period. If the plaintiff files the claim too late, the defendant can raise the limitation period as a defence.

Each of these defences has its own criteria and conditions, and their applicability depends on the jurisdiction and the specific circumstances of the case.

Contributory Negligence:

Contributory negligence is a defence in tort law that applies when the plaintiff (the injured party) has, through their own negligence, contributed to the harm or loss they suffered. If the defence is successful, the plaintiff’s compensation may be reduced or, in some cases, denied entirely, depending on the jurisdiction and the severity of their contribution to the injury. For example, suppose A is driving and fails to stop at a red light, hitting B, who was crossing the street. However, B was also negligently crossing outside of the designated crosswalk and not paying attention to the traffic. Both A and B contributed to the accident. In this case, B’s contributory negligence may reduce or limit the damages they can recover from A.

Key Ingredients of Contributory Negligence:

• Plaintiff’s Negligence: The plaintiff must have acted in a way that was careless or negligent, contributing to their own harm. This could involve failing to take reasonable care for their own safety or acting in a way that increased the risk of injury.
• Causation: There must be a direct link between the plaintiff’s negligence and the harm they suffered. The defendant must show that the plaintiff’s actions were a contributing factor in causing the injury or loss.
• Shared Responsibility: In cases of contributory negligence, both the defendant and the plaintiff are partially responsible for the injury. The court will assess the degree to which each party’s negligence contributed to the harm.

Impact of Contributory Negligence:

• Reduction of Damages: In many jurisdictions that apply comparative negligence, if the plaintiff is found to have contributed to their own injury, the court will reduce the damages awarded in proportion to the plaintiff’s degree of fault. For example, if the plaintiff is 30% responsible for the accident, their damages may be reduced by 30%.
• Complete Bar to Recovery (Traditional Doctrine): Under the traditional common law rule of contributory negligence, if the plaintiff is found to have been even slightly negligent, they could be completely barred from recovering any damages. This harsh rule has been replaced by more lenient systems (such as comparative negligence) in many jurisdictions, but some states and countries still apply it.
• Comparative Negligence: Most modern legal systems have adopted comparative negligence in place of the strict contributory negligence rule. Under comparative negligence, the court assigns a percentage of fault to each party, and the plaintiff’s damages are reduced accordingly. There are two main types:
  • Pure Comparative Negligence: The plaintiff’s damages are reduced in proportion to their share of fault, even if they are 99% responsible.
  • Modified Comparative Negligence: The plaintiff can recover damages only if their level of fault is less than a certain threshold, usually 50% or 51%. If they are equally or more at fault than the defendant, they recover nothing.

Examples of Contributory Negligence in Practice:

• Traffic Accidents: If a pedestrian is injured while crossing the road and is found to have been jaywalking or not paying attention, their compensation may be reduced under the defence of contributory negligence, as they contributed to the risk of injury.
• Personal Injury Claims: In a slip-and-fall case, if the plaintiff slipped on a wet floor but was also not paying attention or was running, their damages may be reduced because they failed to take reasonable care for their own safety.
• Product Liability: In a product liability case, if the plaintiff was injured by using a product incorrectly or ignoring safety warnings, the manufacturer may argue that the plaintiff’s contributory negligence caused or worsened the injury.

Case Laws:

In Butterfield v. Forrester, (1809) 103 E.R. 926 where the defendant placed a pole across the road, which the plaintiff rode into while galloping on horseback at twilight. The court ruled that the plaintiff could not recover damages because they had failed to exercise reasonable care while riding and contributed to the accident by not paying attention.

The traditional rule of contributory negligence, which completely bars recovery if the plaintiff is even slightly at fault, has been criticized for being overly harsh. As a result, most jurisdictions have moved toward comparative negligence, which allows for a more flexible and equitable apportionment of damages based on the relative fault of both parties.

Contributory negligence is an important defence in tort law that allows the defendant to reduce their liability if the plaintiff was partially responsible for their own injury. While the traditional rule of contributory negligence could bar recovery entirely, most modern jurisdictions now use comparative negligence systems, which reduce the plaintiff’s damages in proportion to their fault. Courts must carefully evaluate the actions of both the plaintiff and the defendant to determine the extent to which each party contributed to the injury and adjust damages accordingly.

Conclusion:

Contributory negligence is a significant defense in tort law, allowing defendants to mitigate their liability when plaintiffs share responsibility for their injuries. This principle recognizes that a plaintiff’s own negligent actions can contribute to the harm they suffered, thereby impacting the outcome of the case. Under this doctrine, if a plaintiff is found to have contributed to their injury, their recovery can be reduced proportionally to their degree of fault.

This defence promotes personal responsibility and encourages individuals to act cautiously. However, its application can lead to complex legal disputes, particularly in assessing the relative fault of each party. Some jurisdictions have adopted a “modified comparative negligence” approach, where plaintiffs can recover damages as long as their negligence does not exceed a certain threshold, while others follow a strict contributory negligence rule, barring recovery altogether if the plaintiff is found even slightly at fault.

Ultimately, contributory negligence serves as a critical mechanism for balancing fairness in tort claims, though it also raises challenges in ensuring just outcomes for injured parties. The evolving standards and interpretations of this defence reflect ongoing debates about accountability and the nature of negligence in society.

Related Topics:

General Defences in Tort Law

• Consent (Volenti Non Fit Injuria)
• Self Defence
• Defence of Others
• Defence of Property
• Necessity
• Illegality (Ex Turpi Causa Non Oritur Actio)
• Act of God (Force Majeure/Vis Major)
• Statutory Authority
• Inevitable Accident
• Mistake
• Duress
• Limitation Period

For More Articles on the Law of Tort Click Here

For More Articles on Different Acts, Click Here