“ TORT OF CONTRIBUTORY NEGLIGENCE ’’

This Final draft is for the partial fulfillment of the ( B.B.A.L.L.B )course
Titled
Law of Torts

Submitted to :
Ms. Nidhi Kumari,
Assistant Professor
Submitted by :
Mahima Kumari
Roll no.- 23227
B.B.A.L.L.B(Hons.)
Semester – 1st
SESSION – 2023-2028

SEPTEMBER 2023
CHANAKYA NATIONAL LAW UNIVERSITY , PATNA

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Contents
“ TORT OF CONTRIBUTORY NEGLIGENCE ’’ ......................................................................................... 1
1.INTRODUCTION .................................................................................................................................... 5
1.1 LITERATURE REVIEW ............................................................................................................... 6
1.2 AIMS AND OBJECTIVE.................................................................................................................... 6
1.3 RESEARCH QUESTIONS .................................................................................................................. 6
1.4 HYPOTHESIS .................................................................................................................................. 7
1.5 RESEARCH METHODOLOGY........................................................................................................... 7
1.6 SOURCES OF DATA ......................................................................................................................... 7
1.7 MODE OF CITATION ....................................................................................................................... 7
1.8 SCOPE AND LIMITATIONS .............................................................................................................. 7
2.EVOLUTION OF CONTRIBUTORY NEGLIGENCE ..................................................................................... 8
3.PRINCIPLES OF CONTRIBUTORY NEGLIGENCE ................................................................................... 11
4.COMPARISON OF CONTRIBUTORY NEGLIGENCE TO OTHER NEGLIGENCES....................................... 13
5.LANDMARK JUDGEMENTS BASED ON CONTRIBUTORY NEGLIGENCE ............................................... 15
5.1) Municipal Corporation Greater Bombay v. Laxman Iyer ............................................................ 15
5.2) TO Anthony v Karvarnan ............................................................................................................ 15
5.3)Municipal Board, Jaunpur v. Brahm Kishore ............................................................................... 16
6.CONCLUSION ...................................................................................................................................... 17
7.BIBLIOGRAPHY ................................................................................................................................... 18

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ACKNOWLEDGEMENT
I take this opportunity to express my sincere gratitude and deep regards to my guide, mentor
Ms. Nidhi Kumari, Assistant Professor of Law, for her exemplary guidance, monitoring and
constant encouragement throughout this project.

Her blessing, help, and guidance from time to time shall carry the researcher a long way in
the journey of life on which the researcher is about to embark.

The success and outcome of this project required a lot of guidance and assistance from many
people, and I am highly privileged to have gotten this all along with the completion of this
project. Last but not the least, I am thankful to all the members of my family, friends and
teachers, without their assistance and encouragement, I could not have been able to complete
my submission.

Mahima Kumari

Roll no 23227

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DECLARATION
I, Mahima Kumari, hereby declare that the work reported in the B.B.A.L.L.B (Hons.) project
titled Tort of contributory Negligence submitted at Chanakya National Law University,
Patna is an authentic record of my work carried out under the supervision of Ms. Nidhi
Kumari.

I have not submitted this work elsewhere for any other degree or diploma, and I am fully
responsible for the content of my project report.

Mahima Kumari
Roll no. 23227
B.B.A.L.L.B(Hons.)

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1.INTRODUCTION
In some common law jurisdictions, Contributory Negligence is a defense to a tort claim based
on negligence. In order to understand what contributory negligence is, we have to understand
the basic idea about the concept of negligence. The term ‘Negligence’ means failure to take
proper care of something or to exercise the amount of care that a prudent ordinary man would
do in the normal circumstances. It has come from a Latin term necligentia which means ‘a
neglecting or a disregard’. The concept of Negligence has developed under English law. In
simple words, Negligence is not being diligent in what you do. In general law, Negligence is
the omission to perform a duty which results in the plaintiff’s injury. Negligence is committed
in respect of both person and property.1

Breach of duty to take care and measures in order to avoid any kind of performing an act is
the basic requirement to raise the liability of negligence. Whenever there is a breach of duty,
a suit can be filed by the injured party for damages. The breach of duty which is recognized
by law.

There are various examples of negligence in the daily life. A famous example which is given
in every book of law is when a doctor while performing a surgery accidentally leaves one of
his tools inside the body of the plaintiff, this will give rise to actionable negligence as the
doctor was negligent on his part and completely ignorant of his duty to take care of the
patient.

There are various concepts under negligence like the concept of duty of care and the degree
of care.

Contributory Negligence is the result of both the plaintiff and the defendant failing to
exercise reasonable care in carrying out their respective tasks. It is a tort related defense. As a
result, both the plaintiff and the defendant may be held accountable for contributing to the
damage through negligence. In some personal injury situations, the legal defense of
contributory negligence is relevant. According to this, the defendant is not liable for the
injury if the injured party did anything to contribute to the accident or injury themselves.

A defendant may be at least somewhat to blame for an accident, but under the doctrine of
contributory negligence, they cannot be held accountable because the plaintiff was also
partially to blame. For instance, if the defendant struck the plaintiff while driving too fast and

1
Suryansh Singh, Contributory Negligence, iPleaders (Sept. 12, 2023, 20:49 PM),
https://blog.ipleaders.in/contributory-negligence/

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the plaintiff turned left at a signal, both parties are somewhat at fault because neither party
acted properly under the circumstances.

It is difficult for plaintiffs to obtain compensation for injuries as a result of this defense.
Because of this, comparative negligence laws are now used in the majority of states in place
of contributory negligence laws.2

1.1 LITERATURE REVIEW

1) RATANLAL & DHIRAJLAL, The Law of Torts, LexisNexis, 28th ed. 2018, Pg. 577 to
588. This book explains Contributory Negligence in detail, it discusses the background,
evolution, characteristics, Elements, and important case laws based on Contributory
Negligence.
2) Ipleaders, Contributory Negligence explains about the concept and principles of
Contributory Negligence with various explanations, it also discusses the difference between
contributory negligence and composite negligence and various case laws related to it.

1.2 AIMS AND OBJECTIVE

1) To analyze the concept and evolution of contributory negligence.

2) To present the essential required elements and principles of contributory negligence.

3) To study various case laws on contributory negligence.

1.3 RESEARCH QUESTIONS

1) How far is contributory negligence as a defense ?

2) What are the prerequisite to the rule of contributory negligence ?

3) Why supreme court laid down the rule of contributory negligence ?

2
Christy Beiber J.D. , What is Contributory Negligence, Definitions & examples, Forbes adviser (Sept. 12, 2023,
20:59 PM), https://www.forbes.com/advisor/legal/personal-injury/contributory-negligence/

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1.4 HYPOTHESIS
1) Development of contributory negligence as a defense under torts.

1.5 RESEARCH METHODOLOGY

The researcher will be relying on primary and secondary source of data and it is doctrinal and
qualitative in nature.

1.6 SOURCES OF DATA

1. PRIMARY SOURCE
Books
Cases
Precedents
2. SECONDARY SOURCES
Articles
Blogs

1.7 MODE OF CITATION

The researcher has followed the 20th edition of the Bluebook for citation.

1.8 SCOPE AND LIMITATIONS

Scope of study is about Evolution of Contributory negligence , its elements, major landmark
cases and various precedents and its use all over the world. The Limitation of study is about

understanding the meaning of Contributory negligence, its elements, reason for its evolutions,

various case laws and how effective it has been as a defense for defendants.

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2.EVOLUTION OF CONTRIBUTORY NEGLIGENCE

The tort of negligence has given way to the tort of contributory negligence. Common law
systems have had a long history with negligence. It first became clear as a separate tort in the
1850 case of Brown vs Kendall . In order to understand the concept of contributory
negligence, lets first understand about negligence.

Negligence is the failure to exercise the same degree of caution as a prudent person would
under similar circumstances. It is also an omission to take action that a reasonable person,
governed by the common sense principles that ordinarily govern human affairs, would take.
Understanding the nature and extent of the negligence tort requires knowledge of the duty of
care. The element of negligence or breach is one of the crucial elements of the negligence.

Contributory negligence is when the plaintiff, through his own actions, contribute to the harm
brought on by the defendant’s negligence or other wrongdoing.

If "the act or omission amounting to want of ordinary care or in defiance of duty or obligation
on the part of the complaining party (the plaintiff) has combined with the other party's
negligence," then the accident is said to be the result of contributory negligence.3

An accident would be said to be the result of contributory negligence if “ the proximate

cause of the accident is the act or omission amounting to want of ordinary care or in defiance
of duty or obligation on the part of the complaining party ( the plaintiff ) has conjoined with
the other party’s negligence.4

In the 19th and 20th centuries, the contributory negligence concept predominated in American
law. Butterfield v. Forrester, an English case, is typically cited as the first instance, albeit the
court in that case determined that the plaintiff’s own carelessness cast doubt on their claim
that the defendant was the injury’s primary cause. Contributory negligence has the same
result whether it is interpreted as denying proximate causality or as an affirmative defense :
Contributory fault of the plaintiff precludes recovery.

3
Anushkaguha, The Evolution Of Contributory Negligence From Butterfield v/s Forrester, Legal service India
(sept. 12, 2023, 23:27 PM), https://www.legalserviceindia.com/legal/article-11760-the-evolution-of-
contributory-negligence-from-butterfield-v-s-forrester.html
4
DR. R.K Bangia, Law of Torts 287 (26th ed. 2021).

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English common law has changed since the early modern era until the Law Reform
(Contributory Negligence) Act of 1945. It was once a full defense that prevented the plaintiff
from recovering anything, but was eventually changed to a partial defense that proportionally
decreased the damages.

Butterfield v. Forrester, the defendant wrongfully obstructed a highway by putting a pole

across it. The Plaintiff, who was riding violently in the twilight on the road collided against
the pole and was thrown from his horse and injured . If the plaintiff had been reasonably
careful, he could have observed the obstruction from a distance of 100 yards and thus avoided
that accident. It was held that the plaintiff has no cause of action as he himself could have
avoided the accident by exercising due care. Lord Ellenborough, C.J. said , “ 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 plaintiff.”

This rule worked a great hardship particularly for the plaintiff because for a slight negligence
on his part, he may lose his action against a defendant whose negligence may have been the
main cause of damage to the plaintiff . The court modified the law relating to contributory
negligence by introducing the so – called rule of ‘Last opportunity’ or ‘Last chance’.

The courts devised the rule of last opportunity which meant that if the defendant had the last
opportunity to avoid the accident resulting in injury he was held solely responsible for the
injury inspite of the fact that the plaintiff was also negligent. This rule was further extended
to cover cases of constructive last opportunity meaning thereby cases where the defendant
would have had last opportunity but for his own negligence. A more rational approach was
made in case involving maritime collisions where the court had opportunity of apportioning
damages under the Maritime Conventions Act, 1911.5

In Admiralty Commissioners v SS Volute, a collision had occurred between the Merchant

ship Volute and the destroyer Radstock. The Volute was at fault in changing her course
without giving proper signal and the Radstock was at fault in increasing although she had the
knowledge of the danger caused by the change of course of Volute. It was held that both the
ships were responsible for the collision even though the last opportunity for avoiding the
collision was with the Radstock.

5
RATANLAL & DHIRAJLAL, The Law of Torts, 578 (28th ed. 2018)

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The question of contributory negligence must be dealt with somewhat broadly and upon
common sense principles as the jury would probably deal with it. As stated by the Privy
council on following the Volute in another maritime collision case,” where the acts of
negligence, though successive are close together in time and interact with each other, they fall
to be considered no as severable but as co-operating factors in the final catastrophe.

The decision in the case of the Volute was later followed by the House of Lords in a non-
maritime collision case and was regarded as one of the general principles.

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3.PRINCIPLES OF CONTRIBUTORY NEGLIGENCE

People who work in the fields of personal injury law and (to a somewhat lesser extent)
clinical negligence law frequently have to take the notion of contributory negligence into
consideration. The guiding concepts are simply stated. Prior to the passage of the Law
Reform (Contributory Negligence) Act of 1945, a claimant's contributory negligence served
as a full defense. It was either all of the damages awarded in a tort case, or nothing. The Law
Reform (Contributory Negligence) Act's Section 1 states: "A claim in respect of that damage
shall not be defeated by reason of the fact that any person suffers damage as a result of partly
his own fault and partially the fault of any other person or persons."6 Thus, if in an accident,
the plaintiff is as much fault as the defendant, the compensation to which he would otherwise
be entitled will be reduced by 50 percent.

Therefore, there are three components to the idea of contributory negligence.

1)The claimant's actions were somehow his fault.

2)Such conduct contributed to some of the harm that was done.

3)Damages may be lowered if doing so is fair and equitable (in which case they are reduced
to the extent that is just and equitable).

There are Rules to determine contributory negligence :

1) Negligence of the plaintiff in relation to the defense of contributory negligence does

not have the same meaning as is assigned to it as a tort of negligence. Here, the
plaintiff does not owe any duty of care to the other party. What has to be proved is
that the plaintiff did not take due care of his own safety and thus contributed to his
own negligence.
Case law : Bhagwat Sarup v. Himalaya Gas Co., the defendant company sent its
deliveryman to deliver the replacement of a gas cylinder to the plaintiff at his
residence. The cap of the cylinder was defective. The deliveryman obtained an axe
from the plaintiff for opening the cylinder and hammered the cap with the axe. The
gas leaked and caused fire resulting in the death of the plaintiff’s daughter, injuries to
some of his family members and damage to his property. It was held there was a sole
negligence of deliveryman. It was also held that the mere fact that the plaintiff gave

ipleaders (Sept.12 , 2023 20:49 PM) https://blog.ipleaders.in/contributory-negligence/

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 an axe to the deliveryman on asking did not imply contributory negligence on the part
of the plaintiff, because the plaintiff was a layman but the deliveryman was a trained
person and was supposed to know the implications of the act being done by him.

2) It is not enough to show that the plaintiff did not take due care of his own safety. It
has also to be proved that it is his lack of care which contributed to the resulting
damage. If the defendant’s negligence would have caused the same damage even if
the plaintiff had been careful and the plaintiff’s negligence is not the operative cause
of accident, the defense of contributory negligence cannot be pleaded.
Case Law : Agya Kaur v. Pepsu Road Transport Corporation, an overloaded rickshaw
with three adults and a child on it, while being driven on the correct side of the road,
was hit by a bus being driven at a high speed and also coming on the wrong side. It
was held that there was negligence on the part of the bus driver only, and in spite of
the fact that the rickshaw was overloaded, there was no contributory negligence of the
rickshaw driver, as the fact of overloading the rickshaw did not contribute to the
occurrence of the accident.7

7
RATANLAL & DHIRAJLAL ,The Law of Torts 579 (28th ed. 2018).

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4.COMPARISON OF CONTRIBUTORY NEGLIGENCE TO OTHER
NEGLIGENCES

In order to understand the comparison of contributory negligence to composite negligence,

lets understand the concept of composite negligence.

When the negligence of two or more person results in the same damage, it is said to be a
Composite Negligence and the person responsible for causing such damage are known to be
Composite Tortfeasors. Composite tortfeasors are subject to joint and several responsibility.
Nobody may claim that their accountability should only extend as far as their own fault. The
plaintiff may enforce the entirety of his claim against any defendant (if he so chooses) or
against the composite tortfeasors. The judgment against the composite tortfeasors is a single
sum in line with the fault of the several tortfeasors.8 In England, such tortfeasors could be
classified into two categories : joint tortfeasors and independent tortfeasors, there were
different rules governing the liability of these two categories of tortfeasors. The liability of
these two categories of persons has been made somewhat similar through legislations, i.e., the
Law Reform (Married Women and Tortfeasors) Act, 1935 and Civil Liability (Contribution)
Act, 1978.

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.

In T.O. Anthony v. Karvarnan, the difference between "composite negligence" and

"contributory negligence" was clearly stated. 'Composite negligence' was defined as the
negligence of two or more people. A person is said to have been hurt as a consequence of the
combined carelessness of two or more wrongdoers when they sustain an injury as a result of
their negligence. Each perpetrator is jointly or severally accountable to the injured for the full
damages in such a scenario, and the victim has the option of bringing legal action against all
of them or just one of them. On the other hand, if a person is injured in part as a result of

8
Navya Agarwal, Contributory Negligence and Composite Negligence – law of torts, Law column (Sept. 13
2023, 01:52 AM), https://www.lawcolumn.in/contributory-negligence-and-composite-negligence/

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carelessness, that person's negligence.9 According to Shiv Dayal, J., “ Where a person is
injured without any negligence on his part but as a result of the combined effect of the
negligence of two persons, it is not a case of contributory negligence in that sense. It is a case
of what has been styled by Pollock as “ Injury by composite negligence ’’. Thus, in
contributory negligence, there is negligence on the part of the plaintiff himself which
contributes to the harm he suffered, whereas in composite negligence, there is negligence of
two or more defendants towards the plaintiff, and the plaintiff himself is not to be blamed so
far as the harm suffered by him is concerned. As we know that the liability of the persons
guilty of composite negligence is joint and several. It has generally been held that, unlike
contributory negligence, there is no apportionment of damages payable by those guilty of the
composite negligence.

9
GK today, https://www.gktoday.in/what-is-the-difference-between-composite-negligence-and-contributory-
negligence/ (last visited Sept. 13, 2023).

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5.LANDMARK JUDGEMENTS BASED ON CONTRIBUTORY
NEGLIGENCE

5.1) Municipal Corporation Greater Bombay v. Laxman Iyer10

The deceased who was riding a cycle came from the left side and took the right turn contrary
to traffic regulations. At that time, he was hit by the corporation bus which was running at a
moderate speed and the deceased was visible from the distance of 30 feet. It was found that
the deceased was negligent in taking a wrong turn contrary to traffic regulations and the bus
driver was negligent in not stopping the bus by quickly applying the brakes and in omitting to
blow the horn. The deceased’s negligence was held to have 25% contributed to damage and
the compensation was reduced to that extent.

5.2) TO Anthony v Karvarnan

There was a head on collision between a bus belonging to the Kerela SRTC and the private
bus in which the appellant who was driver of the bus of Kerela SRTC sustained injuries
including fracture of right femur. It was found that the private bus was on the wrong side of
the road but the appellant has also neither slowed down his bus nor swerved to his left on
seeing the oncoming bus. On these facts, the appellant was held partly responsible for the
accident and his responsibility was fixed at 25% and that of the private bus at 75% and the
compensation awarded to the appellant was reduced by 25%.

This case was relied on in Andhra Pradesh State Road Transport Corporation v K Hemlatha,
where a motorcycle was hit from behind by a speeding bus as a result of which a person
driving the motorcycle died and another person on the motorcycle was injured. The deceased
was also driving the motorcycle at a high speed so it was held to be a case of contributory
negligence. The blame of the deceased for the accident was apportioned to ¼ and the total
compensation determined was reduced to that extent.

10
RATANLAL & DHIRAJLAL, The Law of Torts 580 ( 28 th ed. 2018 )

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5.3)Municipal Board, Jaunpur v. Brahm Kishore

The Plaintiff, who was going on his bicycle without headlight on a road in the darkness, fell
into a ditch dug by the defendant who had not provided any light, danger signal or fence to
prevent such accidents in the darkness. It was held that the accident could not 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 this case.

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6.CONCLUSION

Like most fields of law, contributory negligence is also an evolving concept. Since its'
inception 1809, various principles have emerged from the concept. The procedure in
which cases are decided has changed notably. Several precedents have paved the way
for effective interpretation and analysis of the concept of contributory negligence.
By demonstrating that the plaintiff is also equally at fault and by using the defense of
contributory negligence, the defendant is able to avoid paying the plaintiff any
compensation or damages. The onus is always on the defendant to establish that there
was contributory negligence.
The rule that was established by Butterfield v. Forrester in 1809, where the onus was
completely on the plaintiff for their negligent act in a case of contributory negligence,
is diametrically different from the principle that is applied in the present for
determining the damages derived out of a particular case. It can thus be concluded
that jurisprudential analysis and decisional laws in the context of contributory
negligence have largely contributed to modifying the scope of the tort.

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7.BIBLIOGRAPHY

The following source was consulted by the researcher to complete this final draft:
• Books
RATANLAL & DHIRAJLAL , The Law of Torts , 28th edition, 2018

• Websites

iPleaders (Sept. 12, 2023, 20:49 PM), https://blog.ipleaders.in/contributory-

negligence/

GK today, https://www.gktoday.in/what-is-the-difference-between-
composite-negligence-and-contributory-negligence/ (last visited Sept. 13, 2023).

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