In some common law jurisdictions, contributory negligence is a defense to a tort claim based on negligence. If it is available, the defense completely bars plaintiffs from any recovery if they contribute to their own injury through their own negligence.

Because the contributory negligence doctrine can lead to harsh results, many common law jurisdictions have abolished it in favor of a “comparative fault” or “comparative negligence” approach. A comparative negligence approach reduces the plaintiff’s damages award by the percentage of fault that the fact-finder assigns to the plaintiff for his or her own injury. For example, if a jury thinks that the plaintiff is 30% at fault for his own injury, the plaintiff’s damages award will be reduced by 30%.

Contributory negligence has been defined as “negligence in not avoiding the consequence arising from the negligence of some other person, when means and opportunity are afforded to do so”. The term negligence in this context does not, ordinarily, mean any breach of duty to another, but only failure to take reasonable care of one’s own self. Every man has a duty to look after himself, and he will have no remedy for injuries which he might have a voided by the use of reasonable care. As stated in an old case, “One person being in fault will not dispense with another’s using ordinary care of himself.

More recently, Lord Denning has distinguished ‘negligence’ and ‘contributory negligence’ as follows:

“Negligence depends on a breach of duty, whereas contributory negligence does not, Negligence is a man’s carelessness in breach of duty to others. Contributory negligence is a man’s carelessness in looking after his own —safety”.

  • The principle underlying the doctrine has been stated to application of the maxim “Inpari delicto potior est condition defendantis”‘, which means that when both parties are equally to blame, neither can hold the other liable.

But the more accepted view is that it is an application of the rule as to remoteness of damage.

  • At common law, contributory negligence of the plaintiff is a complete defence to an action for damages for negligence of the defendant, the burden of establishing it being on the defendant.
  • Contributory negligence is, however, no defence where the plaintiff was not bound to take such care as the defendant contends but has a right to assume that the defendant had done all things rightly and carefully.
  • Again, contributory negligence of the plaintiff is no defence if the defendant had a later opportunity than the plaintiff of avoiding the accident by reasonable care.
  • The soundness of the last opportunity test founded on Davles. Mann has, however, been questioned by the House of Lords in Admiralty Commissioner v. North of Scotland .Their Lordships quoted with approval the statement of the Law Revision Committee, 1939.

“In truth, there is no such rule – the question, as in all questions of liability for a tortuous act, is, not, who had the last opportunity of avoiding the mischief, but whose act caused the wrong”.

  • Another controversial topic relating to contributory negligence is whether the existence of a duty is necessary to raise the plea. The position has been authoritatively summarized by the Privy Council thus.

(i)   When negligence is alleged, as the basis of an actionable wrong, a necessary ingredient in the conception is the existence of a duty owed by the defendant to the plaintiff to take due care. But when contributory negligence is set up as a defence, its existence does not, generally depend on any duty owed by the injured party to the party sued and all that is necessary to be shown in order to establish such defene is that the inured party did not in his own interest take reasonable care of himself and contributed, by his want of care, to his own injury. The principle underlying the defence of contributory negligence is that where a man is part author of his own injury, he cannot call on the other party to compensate him in full.

(ii)  In cases relating to ‘running down accidents’, however, the question of duty to take care in relation to the other party does, in fact, come in. The general principle in such cases is: “When tow parties are so moving in relation to one another as to involve risk of collision, each owes a duty to the other to move with due care, and this is true whether they are both in control of vehicles, or both proceeding on foot, or whether one is on foot and the other controlling a moving vehicle.

  • In England, the doctrine of contributory negligence has undergone a great shock by the passing of the Law Reform (Contributory Negligence) Act, 1945, which has introduced the principle of apportionment of liability in all cases of contributory negligence, which was before this Act confined to Admiralty proceedings only – After the passing of this Act, the common law rule which applied before, viz, that parties guilty of negligence had no claim has disappeared, and the Court has to assess the liability of both parties, and apportion the damages accordingly.

3.2 Children

Children may be liable in negligence and are judged by what might be expected of a reasonable child of defendant’s age, and the courts appear to be indulgent towards high spirits and horseplay: Mullin v Richards  and Blake v Galloway.

3.3: Burden of proof of Contributory Negligence

The onus of proving affirmatively that there was contributory negligence on the part of the person inured rests, in the first instance, upon the defendant, and in absence of evidence tending to that conclusion, the plaintiff is not bound to prove its non existence. If the Court finds itself unable to discover to what extent the negligence of the plaintiff or that of the defendant contributed to bring about the accident, the defendant is entitled to succeed, for in pari delicto potiorest conditio defendants.

A few decided cases on the doctrine of contributory negligence are given below. A police constable seeing the door of the defendant’s warehouse open after dark, and in order to see that everything was right, and in the execution of his duty, entered the warehouse and injured himself by falling into an unfenced sawpit inside.

It was held that he had no legal right to enter, being neither a licensee nor an invitee, but that even assuming he had, the defendant was under no duty to make the place safe for him or to warn him of the danger.

3.4: Doctrine of Identification

The doctrine of identification can be explained thus: Where a child is in the actual custody of an adult at the time of the accident, the contributory negligence of the adult will disentitle the child from recovering damages, because the child is so identified with the adult that his negligence would amount to the negligence of the child. So, a special application of the doctrine of identification is to be met with where an infant, who is incapable of taking care of him and is in charge of an adult, suffers injury owing to the negligence of the third person, as well as the contributory negligence of the custodian.

At one time, it was though that the contributory negligence of an adult having actual custody of a child at the time of the accident would be a bar to an action by the child against the other party whose, negligence helped to bring about the accident. A child of five under the control of its grand mother was inured by a train owing to the contributory negligence of the grandmother. It was held that the child had to be identified with its grandmother, and so had no right of action against the company.

But the doctrine of identification laid down in this case has been overruled since the decision in Mills v. Armstrong.

An infant, of four years old, was crossing a road under the care of his grand father. He was struck by a motor omnibus and received permanent injuries to his left hand. The infant sued the Omnibus Company for damages sustained by him through the negligent driving of the omnibus belonging to the company for damages sustained by him through the negligent driving of the omnibus belonging to the company. The jury found that the accident occurred through the negligence of the driver of the omnibus and the contributory negligence of the grand father. It was held that, nevertheless, the infant could recover damages.

3.5 Res Ipsa Loquitur

Through the course of negligence the burden of proof remains with the plaintiff. The exception to this rule is the application of Res ipsa loquitur which provides an alternative to the plaintiff. This doctrine applies when an injury has occurred upon the plaintiff without plausible explanation but as such the event could not have occurred but for negligence by the defendant. Once the courts are satisfied that the maxim applies, then a shift of the burden of proof moves to the defendant. Res ipsa loquitur origins began in the case of Byrne v. Boadle. In the following case of Scott v. London & Katherine Docks Co. was greatly developed.

The ratio of Scott v. London & Katherine Docks Co. held that there must be

easonable evidence of negligence. The court defined the doctrine as ‘where the thing [that caused the accident is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in absence of explanation by the defendants, that the accident arose from want of care’. Consequently, this suggests that if the burden of proof has been transferred to the defendant, then the defendant can discharge the inference of negligence through proof that reasonable accepted care was provided. This answers the core question for res ipsa loquitur pertaining to the defendant that they ‘overcome the prima facie case of negligence against him by establishing by evidence satisfactory to the jury that he was not negligent’.

3.6: Burden of proof of Negligence

As a rule, the onus of proving negligence is on the plaintiff. He must not merely establish the facts of the defendant’s negligence and of his own damage, but must show that the one was the effect of the other

First, where there is no contract, the plaintiff must prove facts inconsistent with due diligence on the defendant’s part. Where the balance is even as to which party is in fault, the one who relies on the negligence of the other is bound to turn the scale.

Secondly, where there is a contract or personal undertaking, the plaintiff must prove such contract or undertaking, and also injury to himself. The mere fact of an injury happening, if unexplained, is evidence of negligence. It is for the defendant to prove that he himself was exercising due care.

-Thirdly, under certain circumstances, the mere happening of an accident will afford prima facie evidence that it was the result of not taking due care; res ipsa loquitur (the thing speaks for itself). This is so when –

(i)   The injurious agency was under the management or control of the defendant; and

(ii) The accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care.

Thus, in cases involving res ipsa loquitur, there is a presumption of negligence, and it is for the defendant to rebut it.

The Rajasthan High court has held that, in a case against a doctor for damages, if the plaintiff shows that the doctor was in fact negligent, but fails to prove that any loss or injury was caused to him by such negligence, he cannot be awarded any damages, and his claim will be dismissed.