Contributory Negligence and Composite Negligence – law of torts
According to Winfield and Jolowicz, “Negligence is the breach of a legal duty to take care which results in damaged, undesired by the defendant to the plaintiff”.
In general words, there is a legal duty to take care when it was reasonably foreseen that failure to do so was likely to cause harm or injury. Basically, Negligence is a mode in which many kind of harms may be caused by not taking adequate precautions.
Therefore, the definition of Negligence include 3 constitutes –
- A Legal duty to exercise
- Breach of the said duty
- Consequential Damages
Essentials of Negligence
In an action for Negligence, the plaintiff has to prove the following essentials –
- Defendant owned a duty of care towards the plaintiff
- Defendant made the Breach of that duty
- Plaintiff suffered Damages as the consequences
Defendant owned a duty of care towards the plaintiff – The plaintiff has to establish that the defendant owned a duty of care of which he has made a breach. But there should a legal duty rather than a mere moral, religion or social duty.
Case laws – Donoghue v. Stevenson – In this case, A purchased the bottle of ginger beer from a retailer. Some of the content were poured in a tumbler and she consumed it. When she poured the remaining content in tumbler she noticed the pieces of decomposed body of snails floating in beer. The appellant alleged that after consuming the contaminated drink she suffered from serious health issues. The bottle was dark opaque and was closed with metal cap so it could not be ascertained by inspection. A bought an action against the manufacturer of the ginger bottle. It was held that the manufacturer hold the duty of care towards the consumers of which he made breach as a result A suffered with health issues. So, manufacturer was held liable for the breach towards duty of care.
Breach of Duty – Breach of duty means non-observance of due care which is required in particular situation. The plaintiff has to show that there was a breach of duty which means failure to observe expected standard of care. The degree of care which man is required to use in a particular situation varies with the risk level.
Case laws – Sagar Chand v. State of J&K – In this case, two children aged 7yrs and 11yrs respectively were passing through a paddy field in village as they were going for taking bath. The electric line in that area was under repairs. Because of the negligence of line-man, the children came into the contact with live electric wires, got electrocuted and died. The state department was held vicariously liable for negligence of line-man and was required to pay the compensation of Rs.60, 000/- and Rs.75, 000/- for the same.
Damages to the plaintiff – It is also necessary to proof the due to the negligence of defendant, plaintiff suffered with certain damages. In other words, plaintiff has also to prove that he suffered with damages, thus caused in the consequences of defendant’s negligence.
The duty to assess the damage is entirely upon the court. The court has to decide and determine the remoteness to the damage and the amount which the plaintiff is actually entitled to as damage.
Kinds of Negligence
Negligence is of two kinds –
- Contributory Negligence
- Composite Negligence
When the plaintiff by his own want of care contributes to the damage caused by the negligence of the defendant, he is considered to be guilty of Contributory Negligence.
It act as good defense for defendant where he can take the plea that he alone was not responsible for the damages suffered by the plaintiff. Here, defendant has to prove that the plaintiff failed to take the reasonable care of his own safety and that act as the contributory factor to the harm which was ultimately suffered by the plaintiff.
Illustration – If A is driving car on the wrong side of the road and is hit by another car from the opposite direction driving rashly by B. Here, B can take the defense of contributory negligence as A was also negligent on his part by driving on the wrong side of the road.
Case laws – Sushma Mitra v. Madhya Pradesh state road Transport corp. – In this case, the plaintiff was travelling in a bus resting her elbow on a window sill. The bus at that time was moving on a highway. The plaintiff got injured when hit by a truck coming from the opposite direction. When she sued for the injuries caused to her, the defendant took the plea that the act of resting elbow on a window sill was an act of contributory negligence. The Madhya Pradesh HC did not allow such defense and was held that she acted like a prudent man while the bus was moving on highway. Hence, the plaintiff was entitled to claim compensation from defendant.
Note – When the plaintiff is negligent but his negligence has not contributed to the harm suffered by him, the defense of contributory negligence cannot be pleaded.
When the negligence of two or more person results in the same damage, there is said to be a Composite Negligence and the person responsible for causing such damage are known to be Composite Tortfeasors. The liability of composite tortfeasors is joint and several. No one can take the plea that his liability should be limited to the extent of his fault. The judgment against the composite tortfeasors is a single sum in accordance of the fault of the various tortfeasors and the plaintiff can enforce the whole of his claim either against any of the defendant (if he so chooses) or against the composite tortfeasors.
Note – The defendant, who has paid more than his share of his liability may claim contribution from other defendants.
Case laws – Prayagdatta v. Mahendra Singh – In this case, there was an accident between a bus and motor cycle, resulting in the death of the pillion rider on the motor cycle. The bus driver and the motor cyclist were equally negligent, and an action was bought for composite negligence against both of them. During the trial, the motor cyclist died and his legal representative were not impleaded. It was held that in such cases the owner of motor cycle and the driver of the bus made liable only for 50% share of liability.
Author: Navya Agarwal,
College - GGSIPU; 2nd year