National University of Study and Research in Law, Ranchi


Symbiosis Law School, Pune.


The beauty of law lies in the fact that it can never be static. It is of such a flexible nature that it can be changed from time to time in the interest of society. The law relating to contributory negligence is a vital defence precluding a person form extracting a benefit out of his own wrong. However, too general construction of this theory can lead to severe hardships to those people who genuinely claim damages in case any damage is caused. This article is an attempt to highlight the chronological developments in the rules of deciding liability under contributory negligence, which has led to the elimination of the tendency of taking unjust benefit from the loopholes of the law.


Law always demands a want of duty of care on the part of the citizens who are subject to it. Due to this, everyone owes a duty of care towards others. This duty of care is not only for others, but the person also requires the duty of care towards himself. Everyone is expected to take reasonable care, as taken by an ordinary man in ordinary circumstances, to prevent any harm to himself as well as others. A wrong is said to have been committed when there is a breach of any of these duties.

One such type of wrong is negligence. It happens when the breach of duty by the defendant causes some damage to the plaintiff. The breach of duty, in this case, is the duty towards others.

However, when a person fails to observe the duty of care towards himself and suffers damage due to the breach of duty by someone else, he is said to have committed contributory negligence. This is because he has contributed to the injuries he suffered due to his negligence. So, when the plaintiff by his negligence contributes to the damage caused to him by the negligent act of the defendant, he is said to be guilty of contributory negligence.

This is generally taken to be a good defence for the defendant. This is because it is presumed that, had the plaintiff not been negligent on his part, he would probably have avoided the consequences of the defendant’s negligent act.

The idea of contributory negligence used to form a large part of the U.S. Jurisprudence. This concept is believed to have made its first appearance through the case of Butterfield v.
In a situation when both the plaintiff and defendant were at fault, the common law rule was that the plaintiff was to fail even if the was in some respects negligent. As per the English law, the only element which concretized the fruition of the defence of contributory negligence was that the plaintiff was at some degree of fault. Once this was established, the defendant could avail the benefit of the defence of contributory negligence in its full capacity.


Whether the contributory negligence of the plaintiff reduces the liability of the defendant?

The doctrine of contributory negligence applies solely to the conduct of the plaintiff. It is a defence taken by the defendant. This defence reduces the liability of the defendant towards the damage suffered by the plaintiff. For the successful use of this defence, two things need to be proved by the defendant :

(1) The plaintiff failed to take reasonable care of his own safety

(2) The failure was a contributing factor to the harm suffered by the plaintiff

But the crucial question on which the liability depends was explained by the Hon’ble Supreme Court in Municipal Corporation Of Greater Bombay v. Laxman Iyer[2]. In this case, the Hon’ble court held that in the case of contributory negligence, the question of determining liability depends on which party could have avoided the accident by the exercise of reasonable care. Whichever party would have avoided it would be liable for the accident.

To be guilty of contributory negligence, the plaintiff should not have behaved like a prudent man. If he has taken due care, as a prudent person would have done it, he will not be liable for contributory negligence. However, what would constitute the behaviour of a common prudent person was subject to questions and uncertainty. The Indian courts removed this uncertainty from time to time.

 In Sushma Mitra v. Madhya Pradesh State Road Transport Corporation[3]plaintiff was travelling in a bus, resting her elbow on a window sill. The bus was moving on a highway. She was injured by a truck coming from the opposite direction.

The Hon’ble Madhya Pradesh High Court didn’t allow the defendants to take the defence of contributory negligence. It was further stated in the judgement that the plaintiff acted as a reasonable person because when a bus is travelling on a highway, outside the limits of a town, even a man of ordinary prudence will rest his elbow on the window sill.

However, in cases where the plaintiff is negligent, but his negligence doesn’t contribute to his injury, the defence of contributory negligence can’t be taken. In the case of Municipal Board Jaunpur v. Brahm Kishore[4], the plaintiff was going on his cycle without a headlight on the road in darkness; he fell into a ditch dug by the defendant who had not provided any light, danger signal or fence. The Hon’ble court rejected the plea of contributory negligence by the defendants. The court said that the mere fact that the plaintiff was riding without headlight, didn’t act as a contributing factor to his injury, because even if he had the headlight, the accident could not have been avoided.


This common-law rule of deciding the liability posed great hardships to the plaintiff. At that time, the rule of law was that if there were any blame causing an accident, then the liability would lie on the side where the blame fell, howsoever the blame may be. Thus at that time, the contributory negligence was considered to be a good defence. As a result of this, the plaintiff lost his action for even slightest negligence on his part. This posed great hardship to the plaintiff because people started taking unfair advantage of this loophole. As a result, even in cases where the main cause of the damage to the plaintiff was the negligence of the defendant, the defendant escaped his liability just because there was slight negligence on the part of the plaintiff. One of the many cases where the defendant took such advantage is Butterfield v. Forrester [5], in which 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 was injured. It was declared that the plaintiff had no right of action against the defendant because he himself was negligent in driving violently. Thus in this and many other cases, the defendant was given the advantage of the plaintiff’s negligence.


Due to the rising misuse of the common law rule regarding the conditions of deciding liability of the defendant in case of contributory negligence by the plaintiff, the need was felt to change these conditions, which led to the following reforms.


The courts introduced this rule by modifying the law relating to contributory negligence. According to this rule, when two persons are negligent, then the liability of the resulting damage caused would lie on the person who had the last closest opportunity to avoid such act or omission, which led to such damage.

If the plaintiff had the last opportunity of avoiding the consequences of the defendant’s negligent act, he can’t hold the defendant liable for the damage. When the defendant has the last opportunity to prevent the accident, he will be held liable for the total loss suffered by the plaintiff.

In British Columbia Electric Co. v. Loach [6], the driver of a wagon, in which the deceased was seated, negligently brought it on the level crossing of the defendant’s tramline without trying to see whether any tram was coming. A tram that was being driven too fast hit the wagon. It was found that the tram was allowed to go to the line with defective brakes, and if the brakes were in order, then the accident could have been avoided despite the negligence of the wagon driver. The representatives of the deceased brought an action against the tram company. The plea of contributory negligence was not allowed to the defendants, and they were held liable because they had the last opportunity of avoiding the accident. 


The main flaw in this new rule was that it lied strictly on the fact that whose negligence had the nearest nexus with the accident resulting in some damage. The party whose negligence was earlier altogether escaped the responsibility and whose negligence was subsequent to that was made wholly liable even though the resulting damage was a product of the negligence of both the parties. Hence, at times defendants took advantage of the fact that the plaintiff had the last closest opportunity to avoid the accident and escaped from paying compensation.


The reform in the earlier position took place in the shape of a  central act known as Law Reform (Contributory Negligence) Act 1945. This was the central legislation of England.

According to section 1(1) of the Act,

“ When any person suffers damage as the result partly of his own fault and partly of the fault of any other person, or persons, a claim in respect of that damage shall not be defeated because of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage. “

This Act introduced a new concept, which was the doctrine of apportionment of damages. According to this, if an accident has happened as a result of the negligence of both the plaintiff and the defendant, then the court has the power to distribute the damages in proportion to the negligence of both the parties.

In other words, the damages payable to the plaintiff can be reduced in proportion to his share of negligence in the accident.

In India, however, there is no such central Act. But the Indian courts from time to time are following the concept of apportionment of damages on the lines of the Law Reform (Contributory Negligence) Act, 1945 in many cases, and have made it clear through their judgements that this Act of England can be followed in India.

In Messrs Rural Transport Service v. Bezlum Bibi [7], the conductor of an overloaded bus invited passengers to travel on the roof of the bus. The driver swerved the bus to the right to overtake a cart. As the driver turned on the kuccha portion of the road, Taher Sheikh, who was travelling on the roof, was hit by the branch of a tree. He fell and got severe injuries, and ultimately died due to the injuries. In action for compensation brought by the mother of the deceased, the court held that the driver and the conductor were at fault. Still, there was also contributory negligence on the part of the deceased because he took the risk of travelling on the roof of the bus. Hence the compensation payable to the mother of the deceased was reduced to half, and the defendants were directed to pay only Rs. 8000 instead of Rs. 16000.


  1. The defendant can take the defence of contributory negligence only if there is negligence on the side of the plaintiff However, this negligence is different from the tort of negligence. Here the plaintiff need not necessarily owe a duty of care towards others; rather, he owes a duty of care towards himself. Hence for a successful defence of contributory negligence, the fact which needs to be proved is that the plaintiff did not take due care of his own safety.


In Bhagwat Sarup v. Himalaya Gas Co.[8], 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 from there and caused a fire resulting in the death of the plaintiff’s daughter, injuries to some other family members and damage to his property. It was held that there was sole negligence of the deliveryman. It was further held that the mere fact that the plaintiff gave an axe to the deliveryman on asking didn’t imply contributory negligence on the part of the plaintiff because the plaintiff was a layman. Still, the deliveryman was a trained person and was supposed to know the implications of the act being done by him.


  1. It needs to be proved that the plaintiff didn’t take due care for his safety, but it is not the only thing to be proved. It also needs to be established that the negligent act of the plaintiff has contributed to his injury or damage. If the defendant’s negligence would have caused the same amount of damage to the plaintiff, irrespective of his own negligence, then the defence of contributory negligence would fail.


In Agya Kaur v. Pepsu Road Transport Corporation, [9] an overloaded rickshaw with three adults and one child on it, while being driven on the right side of the road, was hit by a bus being driven at high speed and also coming from the wrong direction. It was held that there was negligence on the part of the bus driver only. In spite of the fact that the rickshaw was overloaded, there was no contributory negligence on the part of the rickshaw driver, as the act of overloading the rickshaw didn’t contribute to the accident.


It is well known that everything is subject to change. Law is no exception to it. Like every other law, there have been numerous changes in the law of torts, and to be more specific, in the rules of deciding liability in case of contributory negligence. But the main question is, why were these changes required?

As evident from the perusal of earlier rules, for a successful defence of contributory negligence, the only thing needed to be proved was that the plaintiff’s negligence was a contributing factor in the injury caused to him. This was misused in many cases, and the plaintiff was denied compensation, even if his negligence was negligible, and the sole reason of the damage was the defendant’s negligence, as seen in the case of Butterfield v. Forrester[10].

Then came the doctrine of the last opportunity. This rule, although development to the earlier rule, had its own limitations. The liability was decided with this law, on the basis, which party had the last opportunity of avoiding the accident. At times, it was beneficial but became a tool of oppression to the plaintiff when it was proved that the plaintiff had the last opportunity of avoiding the accident. The defendant easily avoided his liability during the same.  

Finally came the Law Reform (Contributory Negligence) Act, 1945. This act provided the proper rule for determining liability. This act provided the provision for reducing the compensatory amount by the same proportion as there was negligence on the part of the plaintiff.

Hence, concluding, the reforms in the rules were required because of the practice of taking advantage of the loopholes in the law by the people and the rising atrocities and injustice being done to the plaintiffs/victims.

[1] (1809) 11 East 60.

[2] (2003) 8 SCC 731.

[3] 1973 SCC Online MP 4.

[4] 1978 SCC Online All 40.

[5] (1809) 11 East 60.

[6] (1916) 1 A.C. 719.

[7] 1980 SCC Online Cal 47.

[8] 1984 SCC Online HP 21.

[9] 1979 SCC Online P&H 270.

[10] (1809) 11 East 60.


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