LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

Evolvement of Contributory negligence

Synopsis - The article talks about the concept of contributory negligence and how it came about during 19th century, it tries to define the concept in simple words and try to look upon various element related to contributory negligence. The articles discusses landmark judgement by breaking down in IRAC format. Law reforms (contributory negligence) act, 1945has also been discussed.

Evolvement of the concept

The concept of contributory negligence first appeared clearly at the beginning of the 19th century but the general idea of this concept was somewhat could be traced much earlier. one of the most significant case laws pertaining to this concept was Butterfield v Forrester, (1807) [1] . In the ester year of the development of ‘contributory, if the injury caused to claimant have been caused partly because of the negligent act of the defendant and partly because of some negligent act on his part, then, at common law he can't recover anything for damages caused to him.

Contributory negligence doesn't only play a significant role in absolving the defendant of his ability but also the assessment of damages. For a tort of negligence to be contributory in nature, it should be in the proximate cause of actual injury to qualify as contributory negligence. If the prima facie facts and evidence relating to the case show the plaintiff has contributed to injury by doing negligent act on his part (Novus actus interveniens), then he can't bring an action for recovery of damages. A distinction must be drawn between the condition and the actual causes, between causa sine qua and causa causans. A question must always be asked the act committed whether had a tendency which in the natural sense exposed him directly into a place where he ‘ll get injured if it had not the negligence on part of the plaintiff is considered as contributory in nature.

One who can see or could have seen if he had looked like a prudent man, and knows the danger to which he is exposed to and has a knowledge of the whole scenario, fails to act in a way a reasonable and prudent man will under certain circumstance will do and this results in negligence on his part it will ultimately result in defeat of claim of recovery from plaintiff notwithstanding the negligence done by defendant.

In certain cases when the defendant's misconduct is of such nature that it induces fear in the plaintiff's mind and in a try to escape the consequence of the defendant's misconduct he rushes into danger and gets injured, in such instance the conduct from plaintiff's behalf doesn't contribute to the injury. The law basically doesn't ask the plaintiff to exercise the same degree of care that a reasonable person in such person will do.

Landmark cases

Butterfield vs Forrester[2] :

Facts- The defendant wrongly obstructed the highway by putting up poles across it, the plaintiff on the given night of the incident was riding the horse at a very high speed in very low visibility due to poor light, he collided with one of the poles which caused him various injuries, he brought an action for tort of negligence on the part of plaintiff and asked for damages.

Issue- The main issue in front of the court to be dealt with in particular incident was whether the plaintiff is in a position to recover damages if he on his part was also negligent?

Decision- It was held that the plaintiff had no cause of action and he is not entitled to recover any damages whatsoever.

"one person being in fault will not dispense with another's using ordinary care for himself. Two things must occur to support this action, an obstruction in the road by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintif." - Lord Ellenborough, CJ[3]

Analysis- In the following case plaintiff was negligent in his conduct, if he would have been careful the accident would have not taken place, its somewhat related to rule of the last opportunity which was established in this case, also this case is known to introduce the concept of contributory negligence and hence is one of the most historic judgments in tort law.

Gyerman v. United States Lines Co[4] :

Facts - Plaintiff was injured while he was unloading a stack of fishmeal sacks for the Defendant in this case. Fishmeal, in general, was a very tough cargo to handle. Plaintiff's main task was to break down fishmeal. Before he started with the unloading, he saw that the sacks were not arranged in a proper manner and he hence was prone to danger if he unloaded them. Plaintiff complained about the issue to Mr. Noel, chief marine clerk appointed by the defendant, he said that is was way too dangerous to do the task of unloading. Clerk in affirmation said that there could be nothing done to fix the problem. Plaintiff decided not consult with his own supervisor about the issue, even though the contract of union with his employer clearly stated that "longshoremen is not required to work if they believe that certain work will put his health and safety in danger if it's in good faith" and it also established a well-versed procedure to look out for grievance "to determine whether the given condition was safe or unsafe." During the initial three days, a significant no. of fish sacks fell while unloading, but no harm happened whatsoever. But On the fourth day, twelve sacks fell all at once and one of them fell on the Plaintiff. Plaintiff sustained severe injuries to his ribs and legs because of the incident. The trial judge found that the Defendant was negligent in its act of stacking the fishmeal in a safe and secure manner and that this act of negligence from him was the proximate cause of Plaintiff's injuries. However, the court also held that there was negligence on plaintiff's part in his failure to stop work in the condition of a known and easily avoidable danger this barred his cause of action. Plaintiff appealed against this.

Issue- The main issue before the jury was to analyze whether Defendant bears the burden of proof in establishing the Plaintiff's contributory negligence?

Decision-It was held that in cases of contributory negligence the burden of proof lies with the defendant. In this particular case, the defendant was unable to prove the negligence on part on plaintiff was of such nature that it dissolved him of any action arising from his conduct. The defendant's counsel could not establish the fact that Plaintiff's failure to report the dangerous condition to his own superior was one of the substantial factors in the fall of the sacks. The defendant was not able to meet its burden of proving that the Plaintiff's contributory negligence was the proximate cause of his own injuries.

Analysis- Contributory negligence as a defense is affirmative, and in an action of the tort of contributory negligence it is always the defendant who has the burden of proving that the act or omission of the act from the plaintiff was the substantial factor in the injuries caused to him and if he fails to do so the negligence from plaintiff ain't enough to discharge him of action brought against his negligence.

Rehana Rahimbhai Kasambhai vs Ahemdabad municipal transport[5] :

Facts- The plaintiff-appellant a 16-year-old girl was on her way back home from school, she was riding a cycle. She met with an accident when a municipal corporation run passenger bus was coming from the opposite side dashed against her and in the process injuring her. The driver was driving on the wrong side of the road and even the speed was far above from a normal speed that a prudent man will drive on given that the street was traffic-congested and full of school children. But also at the time of the accident, the plaintiff took a turn towards the wrong side, the defendant claimed the defense of contributory negligence.

Issue- Whether the act of plaintiff constitutes contributory negligence and if yes to what extent given the fact of the case?

Decision- The court observed that in the chain of causation the initial negligence was from the driver of the bus which frightened the appellant and he took a particular decision which was negligent in nature. Also, it should be noted at the time of the incident the girl was a mere 16-year-old, at this age, she could not possess the maturity level of an adult. Court decided that only 25 % of damages should be revoked in this particular instance.

Analysis- In such cases where the act of the defendant is of such nature that it induces fear in mind of the plaintiff and in under distress plaintiff takes such step which is negligent in nature, the court takes in consideration these facts, and give its verdict accordingly, because in these cases it could not be expected from plaintiff to act fully like a reasonable and prudent man due to sudden occurrence of frightening event.

Union of India vs Supriya Ghosh &Ors.[6] :

Facts-The deceased was passing through a railway level crossing in his vehicle. His vehicle was dashed by a mail train while he was crossing the track, he was seriously injured and he later succumbed to his injury and died. The crossing had proper gates and manned too. At the time of crossing the gates were open and no gate attendant was present. The defendant claimed that the accident could have been rebutted if the driver noticed the headlight of the mail express's engine coming his way, the light coming out of the train's compartment or simply heard its sound before passing through the crossing.

Issue- Was the deceased negligent in his actions and does this constitute contributory negligence?

Decision- TheTrial court rejected the contention of railways authority, the reasoning and findings put forward by the trial court was that the deceased must have been occupied with driving the car and his whole attention was devoted to it, and hence he could not have seen the light or heard the sound of the train, if he would have he wouldn't have put his life in a position of danger, also if the light was seen he would have been incompetent to judge how far it was, as gates were open his first instinct was to cross the crossing as it is presumed that gates are open only when its safe.

Analysis- In the following case the concept of contributory negligence doesn't apply because the scope of reasonability doesn't include the act of looking out for train when the gate is open, the defendant could not possibly take the defense of contributory negligence and ask the plaintiff to be careful to avoid damages from his negligence, there is certain limitation until which point a person needs to be prudent and act in a reasonable way. In the given instance the deceased acted prudently and looking out for train in an open gate doesn't come under reasonability.

Law reforms (contributory negligence) act, 1945:

In the United Kingdom, the act was passed in 1945 to clearly define the meaning of contributory negligence. Let us look at some relevant section first-

Section 1 (1) -

"(1)Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage:

Provided that -

(a) this subsection shall not operate to defeat any defence arising under a contract;

(b) where any contract or enactment providing for the limitation of liability is applicable to the claim, the number of damages recoverable by the claimant by virtue of this subsection shall not exceed the maximum limit so applicable." [7]

Section 1 (2) -

"Where damages are recoverable by any person by virtue of the foregoing subsection subject to such reduction as is therein mentioned, the court shall find and record the total damages which would have been recoverable if the claimant had not been at fault."[8]

Section 4 -


The following expressions have the meanings hereby respectively assigned to them, that is to say—

- "court" means, in relation to any claim, the court or arbitrator by or before whom the claim falls to be determined;

- "damage" includes loss of life and personal injury;

- "fault" means negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort or would, apart from this Act, give rise to the defence of contributory negligence." [9]

Before this act came out, a mere fault on the plaintiff's part would render him incapable of getting any sort of damages whatsoever, the act tried to do away with this unfair act, and brought in the concept of degree of involvement.

If we analyse this act we can say-

- in ascertaining the proportion by which the claimant's damages are to be substantially reduced, the major attention must be given to the fact of respective fault or blameworthiness of each of the parties as well as to the degree of major fault or omission on their part without which a great amount of injustice will be perpetuated to the plaintiff who will be stopped from recovering any sort of damages against the defendant. this type of unfairness was the major aim to be removed by the act. the positive law in the field of contributory negligence across the world has given clear guidelines not only to the English courts but also to its the common law countries wherein absence of such kind of positive law, the principle analogous thereto should be applied to keep The Spirit of Justice and good conscience.

- This act also directs that unfairness should not be practiced in determining the reduction of damages, it should not be arbitrary in nature, unjust and capricious rather the decision must be on principles of equitable justness.

  • [1] Butterfield v Forrester [1807] K. B. 1809
  • [2] Butterfield v Forrester [1807] K. B. 1809
  • [3] Butterfield v Forrester [1807] K. B. 1809 ( ellenborough )
  • [4] Gyerman v. United States Lines Co. [1972] 7 Cal.3d 488
  • [5] Rehana Rahimbhai Kasambhai vs Ahemdabad municipal transport [1976] AIR GUJRAT 37
  • [6] Union of India vs Supriya Ghosh & Ors. [1973] AIR PAT. 129
  • [7] Law reforms (contributory negligence) act 1945, s 1 (1)
  • [8] Law reforms (contributory negligence) act 1945, s 1 (2)
  • [9] Law reforms (contributory negligence) act 1945, s 4

"Loved reading this piece by Aman Sharma?
Join LAWyersClubIndia's network for daily News Updates, Judgment Summaries, Articles, Forum Threads, Online Law Courses, and MUCH MORE!!"

Tags :

Category Others, Other Articles by - Aman Sharma