Kinds of Negligence | Law of Torts - CLAT PG PDF Download

Introduction to Negligence

Negligence, in legal terms, refers to a failure to meet the standards set by law for protecting others from unreasonable risks of injury. When a plaintiff's lack of care contributes to the harm caused by the defendant's negligence or wrongful actions, it is termed contributory negligence. This concept does not imply a breach of duty towards the other party but rather an absence of due care regarding one's own safety.

Key Concepts of Contributory Negligence

• Contributory negligence occurs when a plaintiff's own lack of care contributes to the damage caused by the defendant's actions.
• It does not mean breaching a duty towards the other party but signifies a failure to exercise due care for one's own safety.

Examples of Contributory Negligence

• If a pedestrian suddenly attempts to cross the road and is struck by a moving vehicle, the pedestrian is guilty of contributory negligence. In such a scenario, the defendant could be completely absolved of liability for the accident.
• In a case where a bus conductor invites passengers to travel on the roof of the bus, and one of the passengers is struck by a tree branch while on the roof, resulting in injury or death, both the conductor and the passenger share negligence. The conductor is negligent for allowing unsafe travel, and the passenger is contributory negligent for accepting the risky invitation.

Contributory Negligence in Adults vs. Children

What constitutes contributory negligence in the case of an adult may not apply similarly to a child. However, if a child is capable of understanding the danger involved in a situation, they may be held guilty of contributory negligence.

Case Study: Yachuk v. Oliver Blis Co. Ltd

In the case of Yachuk v. Oliver Blis Co. Ltd, the defendant's employees sold gasoline to two boys aged 7 and 9 years, who falsely claimed they needed it for their mother's car. The boys actually used the gasoline for play, resulting in one of them getting injured. The defendant was found fully liable for the loss, highlighting the principle of negligence despite the children's actions.

Contributory Negligence at Common Law

• At Common Law, contributory negligence served as a complete defense, preventing negligent plaintiffs from claiming any compensation from the defendant.
• However, the court modified this rule by introducing the "Last Opportunity" or "Last Chance" rule.

The Last Opportunity Rule

• The last opportunity rule states that when an accident occurs due to the combined negligence of two parties, the one who had the last opportunity to avoid the accident through reasonable care is solely liable to the other.
• This rule was exemplified in the case of Davies v. Mann, where the plaintiff's negligence was outweighed by the defendant's last opportunity to prevent the accident, allowing the plaintiff to claim compensation.

Constructive Last Opportunity

In the case of British Columbia Electric Co. v. Loach, the concept of Constructive Last Opportunity was introduced. It states that a defendant can be held liable even if they did not have the last chance to prevent the accident, as long as they would have had that opportunity if not for their own negligence.

Law Reform (Contributory Negligence) Act, 1945

• In England, the Law Reform (Contributory Negligence) Act, 1945 was enacted to address the issues with the last opportunity rule.
• This Act stipulates that when both parties are negligent and contribute to the damage, the damage will be divided between them based on the degree of their fault.

Kerala Torts (Miscellaneous Provisions) Act, 1976

• In India, the position is similar to that in England.
• The Kerala Torts (Miscellaneous Provisions) Act, 1976 includes provisions for the apportionment of liability in cases of contributory negligence.

Contributory Negligence in India

• In India, contributory negligence is viewed as a defense to the extent that the plaintiff is at fault.
• If the plaintiff is equally at fault as the defendant in an accident, the compensation to which the plaintiff would otherwise be entitled will be reduced by 50%.

Composite Negligence

• Composite negligence occurs when the negligent actions of two or more individuals lead to the same harm experienced by a third party. The individuals responsible in such cases are referred to as "composite tort-feasors."
• In composite negligence, there is no blame on the part of the plaintiff. Instead, the negligence of multiple parties is directed towards the plaintiff. This is in contrast to contributory negligence, where both the defendant and the plaintiff are at fault.
• While contributory negligence serves as a defense for the defendant to mitigate or eliminate liability concerning the plaintiff, composite negligence is not a defensive strategy.