Negligence, in the context of tort law, refers to the failure to exercise reasonable care that a prudent person would take under similar circumstances. It is the breach of a duty owed by one person to another, resulting in harm or loss. Negligence is an unintentional tort, meaning that the responsible party did not purposely cause harm, but their lack of reasonable care led to the injury or damage. The harm or loss includes, physical harm, the harm of reputation, the harm to property, money or economic loss, and mental harm or nervous shock. In this article, we shall see the defence of contributory negligence.
In Law of Torts Negligence may be defined as breach of duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would, do or doing something which a Prudent reasonable man would not do, actionable negligence consists in the neglect of the use of ordinary care or observing ordinary care and skill toward a person to whom the defendant owes a duty of observing ordinary care and skill.
Essential Ingredients of Negligence:
To establish a claim of negligence, certain essential elements must be present. These elements may vary to some extent depending on the jurisdiction, but generally include:
Duty to Care:
The standard of care is the level of caution and prudence that a reasonable person would exercise in similar circumstances. A breach of this standard is a key element in establishing negligence.
In Grant v. Australian Knitting Mills Ltd., 1935 AC 85 case, the plaintiff purchased two sets of woollen underwear from a retailer and contacted a skin disease by wearing an underwear. The woollen underwear contained an excess of sulphates which the manufacturers negligently failed to remove while washing them. The manufacturers were held liable as they failed to perform their duty to take care.
Duty must be Towards the Plaintiff:
It is not sufficient that the defendant owed a duty to take care. It must also be established that the defendant owed a duty of care towards the plaintiff.
Donoghue v. Stevenson, 1932 AC 562 case, carried the idea further and expanded the scope of duty saying that the duty so raised extends to your neighbour. Explaining so as to who is my neighbour LORD ATKIN said that the answer must be “the persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question”.
Breach of Duty:
The defendant had breached the duty of care. This means the defendant failed to act as a reasonably prudent person would have under the circumstances.
In Municipal Corporation of Delhi v. Subhagwanti, AIR 1966 SC 1750 case, a clock-tower in the heart of the Chandni Chowk, Delhi collapsed causing the death of a number of persons. The structure was 80 years old whereas its normal life was 40-45 years. The Court held that the Municipal Corporation of Delhi having the control of the structure failed to take care and was therefore, liable.
Causation:
Factual causation, often referred to as “cause in fact,” is one of the elements that must be established in a negligence claim. It addresses the question of whether the defendant’s conduct was a factual cause of the plaintiff’s injury. Proximate cause is concerned with foreseeability and the scope of the defendant’s liability.
In Palsgraf v. Long Island Rail Road Co. (1928) 162 N.E. 99 case, where the plaintiff, Palsgraf, was hit by scales that fell on her as she waited on a train platform. The scales fell because of a far-away commotion. A train conductor had run to help a man into a departing train. The man was carrying a package as he jogged to jump in the train door. The package had fireworks in it. The conductor mishandled the passenger or his package, causing the package to fall. The fireworks slipped and exploded on the ground causing shockwaves to travel through the platform. As a consequence, the scales fell. Because Palsgraf was hurt by the falling scales, she sued the train company who employed the conductor for negligence. The judge decided that the defendant, a railway, was not liable for an injury suffered by a distant bystander.
Damages:
The plaintiff must have suffered actual harm or damages. Without measurable damages, there is generally no basis for a negligence claim.
Res Ipsa Loquitur (in some cases):
“Res ipsa loquitur” is a Latin phrase that translates to “the thing speaks for itself.” It is a legal doctrine often used in negligence cases to establish a presumption of negligence based on the circumstances of an accident or injury. This doctrine allows a plaintiff to shift the burden of proof to the defendant in certain situations where direct evidence of negligence may be unavailable or difficult to obtain. It is also worth mentioning that even if the doctrine is successfully invoked, the plaintiff still has the burden of proving the other elements of negligence, such as duty, breach of duty, causation, and damages. Res ipsa loquitur is a tool that aids in establishing a prima facie case but does not relieve the plaintiff of the overall burden of proving negligence.
In Municipal Corporation of Delhi v. Subhagwanti, AIR 1966 SC 1750 case, a clock-tower in the heart of the Chandni Chowk, Delhi collapsed causing the death of a number of persons. The structure was 80 years old whereas its normal life was 40-45 years. The Court held that the Municipal Corporation of Delhi having the control of the structure failed to take care and was therefore, liable. In these circumstances, the Supreme Court said 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 the absence of negligence on their part, they were held liable. And also, a Clock tower in the heart of the city will need extra care and if it falls and causes injury to several people, the defendants will but obviously be held liable for the same under this principle. In such cases, direct evidence of proving negligence is not important, but the plaintiff has to establish a prima facie case, either by direct or circumstantial evidence of the defendant’s negligence.
Defences for Negligence:
Contributory Negligence:
It was the Common law rule that anyone who by his own negligence contributed to the injury of which he complains cannot maintain an action against another in respect of it. Because, he will be considered in law to be author of his wrong.
In Shelton Vs L & W Railway (1946) case, while the plaintiff was crossing a railway line, a servant of the railway company who was in charge of crossing shouted a warning to him. Due to the plaintiff being deaf, he was unable to hear the warning and was consequently injured. The court held that this amounted to contributory negligence by him.
Act of God or Vis Major:
It is such a direct, violent, sudden and irresistible act of nature as could not, by any amount of human foresight have been foreseen or if foreseen, could not by any amount of human care and skill, have been resisted. Such as, storm, extraordinary fall of rain, extraordinary high tide, earth quake etc.
In Nicholas v. Marsland, (1875) L.R. ex. 225 case, the defendant, Marsland, constructed a dam on his land to create ornamental lakes. The dams were properly constructed and safe for all ordinary occasion. The reservoir was designed to hold a vast amount of water. However, during an unusually heavy rainfall and storm, the embankment of the reservoir collapsed, leading to the escape of a large volume of water. The rushing water caused considerable damage downstream, including the destruction of a bridge owned by the plaintiff, Nicholas. The court held that Marsland was not strictly liable for the damages caused by the escape of water because, Marsland had taken reasonable care in the construction and maintenance of the reservoir, and the collapse was an unforeseeable result of an extraordinary natural event (the heavy rainfall).
Inevitable Accident:
Inevitable accident also works as a defence of negligence. An inevitable accident is that which could not possibly, be prevented by the exercise of ordinary care, caution and skill. it means accident physically unavoidable.
In Stanley v Powell, 7 L.T.R 25 case, where, the defendant and plaintiff went for a pheasant shooting. The defendant fired a shot at a pheasant, but the bullet ricocheted into an oak tree and struck the plaintiff, causing significant injuries. The defendant was not held liable, as the event was deemed as an ‘Inevitable Accident’.
Contributory Negligence:
It often happens that harm is suffered by the plaintiff not solely due to the negligence of the defendant but also due to the negligence of the plaintiff. Contributory negligence is an expression which implies that person, who has suffered damage, is also guilty of some negligence and has contributed towards the damage. In order to establish his defence, the defendant must prove that:
- The injury of which the plaintiff complains results from that particular risk to which the negligence of the plaintiff exposed him;
- The negligence of the plaintiff contributed to his injury; and
- There was fault or negligence on the part of the plaintiff.
In Municipal Corporation of Greater Bombay v. Laxman Iyer, AIR 2003 SC 4182 case, the Supreme Court observed that where an accident is due to the negligence of both the parties, substantially there would be contributory negligence and both the parties would be blamed.
In Butterfield v. Forester (1809) 11 East 60 case, the defendant partially obstructed the highway by putting a pole across a part of it. The plaintiff, riding violently at dusk, did not observe the pole and ran into it and suffered injury. It was held that the defendant is not liable.
In Rural Transport Service v. Bezlum Bibi, AIR 1980 Cal 165 case, the conductor of an overcrowded bus invited passengers to travel on the roof of the bus. The driver ignored the fact that there were passengers on the roof and tried to overtake a cart. As he swerved the bus on the right for the purpose and went on the kutcha road, a passenger sitting on the roof was hit by a branch of a tree, he fell down, received severe injuries, and then died. It was held that both the driver and conductor were negligent towards the passengers, who were invited to sit on the roof. There was also contributory negligence on the part of the passengers including the deceased, who took the risk of travelling on the roof of the bus.
In Yoginder Paul Chowdhury v. Durgadas, 1972 S.C.J. 483 Delhi case, the Delhi High Court has held that a pedestrian who tries to cross a road all of a sudden and is hit by a moving vehicle, is guilty of Contributory Negligence.
In Harris v. Toronto Transit Commission, 1968 A.C.J. 264 case, 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.
Exceptions to The Rules of Contributory Negligence:
Following are the two situations where defence of Contributory Negligence can’t exist.
Exception 1:
To be not guilty of Contributory Negligence the plaintiff should have acted like a prudent man. The situation of Contributory Negligence won’t exist if the plaintiff has taken as much care as a prudent man in a similar situation would have taken.
In Sushma Mitra v. MPSRTC, AIR 1974 MP 63 case, where 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 which was coming from the opposite direction. When sued for compensation, the defendant took the plea that act of resting elbow on a window sill was an act of Contributory Negligence. The Madhya Pradesh High Court didn’t allow the defence. It was held that as she acted like a reasonable passenger while the bus was moving on a highway, she was entitled to claim compensation. From the facts and the judgement of the above case it was established that in crowded streets of big towns, the passengers, who are adults 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 in the above case the bus was moving on a highway outside the limits of town and hence it is therefore observed that in such a case, even a man of ordinary prudence would rest his elbow on the window sill and he cannot be expected to foresee any harm to himself in doing so.
In Klaus Mittlebachert v. East India Hotels Ltd., AIR 1997 Delhi 201 Case, where the plaintiff, a co-pilot in Lufthansa Airlines checked into Hotel Oberoi Intercontinental, a 5-star hotel in Delhi Where he dived from a diving board in the swimming pool. He hit the bottom of the pool due to insufficiency of water in it and got serious injuries resulting in his paralysis, and died 13 years after the accident. The pool was considered to be a trap and the hotel premises were considered to be hazardous, for which the defendants running the said hotel were held liable. There was held to be no Contributory Negligence on the part of the plaintiff so as to affect his claim for compensation in the case.
Exception 2:
Another exception of Contributory negligence is when the defendant’s actions lead to a violation of a statute of law. For example, violation of the Child Labour Act by the defendant places the entire responsibility of the wrongful act on the defendant and protects the plaintiff from the consequences of his own negligence. In common law it is stated that when the defendant has the last opportunity to avoid the accident, his negligence supersedes that of the plaintiff’s negligence, therefore in such cases contributory negligence is not available as a defence to the defendant.
In Municipal Board, Jaunpur v. Brahm Kishore, 1978 All 168 case, where 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 hadn’t provided any light, danger signal or fence to prevent such accidents in the darkness. It was held that the accident couldn’t have been avoided even if the cyclist had fixed kerosene lamp in front of his cycle, which is generally used by the cyclists and, therefore there was no Contributory Negligence.
In Agya Kaur v. Pepsu Road Transport Corporation, AIR 1980 P H 183 case, where 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 bus didn’t stop after hitting the rickshaw but thereafter hit an electric pole on the wrong side. The rickshaw puller at that time was carrying 3 adults and a child in the rickshaw. It was held that although the rickshaw was overloaded but that factor didn’t contribute to the consequences. The accident was held to be due to the negligence on the part of the defendants only, and there was held to be no contributory negligence on the part of the rickshaw puller and was further observed: “even if the rickshaw was without a passenger or with one or two passengers, the accident wouldn’t have been avoided and, therefore, the mere fact that the deceased rickshaw puller was carrying 3 adults and a child would be no ground to make any deduction in the award of compensation on the ground of Contributory Negligence.
Conclusion:
Contributory Negligence is a type of defence for the defendant with which he can show some negligence on the part of the plaintiff so that the amount to be paid as compensation is reduced to the extent of the plaintiff’s own negligence. Thus, Contributory Negligence is a good defence for the defendants to use against the plaintiffs in cases related to some specific torts. Since this defence favoured the defendants in most of the cases, the last opportunity rule was brought in wherein whoever among the defendant and plaintiff had the last opportunity to prevent the accident was held liable.