Contributory Negligence and Composite Negligence
Meaning of Contributory Negligence:
In certain circumstances a person who has an injury will not be able to get damages from 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 Dr. John G. Fleming “Negligence is conduct that fails to conform to the standards required by law for safeguarding others ( actionable negligence) or oneself when the plaintiff by his own 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.
In Rural transport service vs Bezlum Bibi , In this case , the bus conductor invited the passengers to travel on the roof of the bus .One of the passengers travelling on the roof of the bus was hit by a branch of tree as a consequence of which he fell down and died, after the driver swerved the bus to overtake the cart , so here there is negligence not only on the part of the defendant bt also on the part of the plaintiff.
Rules to determine Contributory Negligence
- What does the plaintiff ‘s negligence mean: Plaintiffs negligence means absence of due care on his part about his own safety.
In bhagwan Swarup vs Himalaya Gas Co ., In this case , the defendant company sent a delivery man to replace the gas cylinder at the plaintiff’ residence. The cap of the cylinder was broken , the delivery man asked a hammer from the plaintiff and repaired it , but due to leakage of gas resulting in fire led to the death of plaintiff’s daughter. It was held that there was sole negligence on the part of the delivery man and plaintiff did not contribute to contributory Negligence.
- Plaintiff’s negligence must be operative cause of Negligence: It is not sufficient to show that the plaintiff failed to take reasonable care for his safety , it also have to be shown that due to his lack of care led to the damages . If the defendants act would have caused the damages even after reasonable care of the plaintiff , and the plaintiff’s negligence is not operative cause of the damage , the defence of Contributory Negligence cannot be pleaded.
- Contributory Negligence of children: What amounts to Contributory Negligence in case of an adult may not be the same in case of a child as the child lacks the capacity to understand certain damages. In Motias Costa vs Roque Augustinho Jactinto , a child who was of 6 years was trying to cross a road while going to school was mocked by a motorcycle. It was held that the motorcyclist could anticipate that the school going child would cross the road , he failed to drive cautiously , he was held liable.
Theories of Contributory Negligence:
some important theories are discussed below :
- Penal theory: This theory says that a person who has been negligent once should be punished severely for his inaction and should not be provided any damages. This theory did not hola a very good name in the cases like ( Davies vs Mann)
- Public policy: In order to induce self vigilance among the .embers of the public and thery reduce the rate of accidents on the highways , the court were inclined to give due importance to this principle of Contributory Negligence. But in actual decision of cases , only few judges have laid down this as a reason for mking a party liable .
- Volenti Non fit injuria : the theory of the plaintiff’ implied or express consent to undergo the injury is sometimes advance as the probable basic principle of Contributory Negligence. The defence of Contributory Negligence confesses and avoids a prima facie liability; it excludes the idea of deliberation and relies upon the plaintiff’s failure to exercise reasonable care . On the defence of volenti non fit injuria Viz that the plaintiff has willed to run the risk , none of these Statements is true’
When the negligence is of two or more persons which results in similar damages to the third person is called “composite negligence” and the persons who are responsible are called the “composite tort feasors”, the liability of them being different. In India , such distinction is not very much relevant and so far as their liability is concerned the term composite negligence is used to cover the negligence of tort – feasors whether they are joint or independent.
The high court’s of Madhya Pradesh , Mysore, punjab and Orissa , Gujrat , Rajasthan , Guwahati, Karnataka ha e expressed in favour of non – apportionment of damages between various composite tortfeasors. In Karnataka state R.T.C vs Krishnan : two passengers buses brushed each other in such a way that the left hands of two passengers travelling in one of these buses were cut off .It was held both the drivers are jointly and severally liable to pay the compensation.
Distinction between Composite and contributory Negligence:
In case of Contributory Negligence, there is negligence onthe part of both the defendant and the plaintiff plaintiff’s own negligence contributes to the harm which he has suffered. In the case of “ composite negligence, there is negligence of two or more persons towards the plaintiff and the plaintiff himself is not to be blamed . While the Contributory Negligence is a defence available to the defendant to overcome or reduce his liability in relation to the plaintiff the composite negligence is not a defence.
In case of Contributory Negligence, there is apportionment of damages according to the fault of the plaintiff and the defendant. Plaintiff’s claim is reduced to the extent he himself is at fault .in case of composite negligence, there end no apportionment of damages between various tortfeasors. There is a decreed for the whole amount creating joint and several liability of all the defendants. If however, one tortfeasors is made to pay more than his share of damages, he can claim compensation from the other tortfeasors.
Author: Harshita Swami,
Guwahati University 5th year