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The Evolution Of Contributory Negligence From Butterfield v/s Forrester

Contributory negligence has essentially emerged from the tort of negligence. Negligence has a long history in common law systems. In the 1850 case of Brown v. Kendall, it initially emerged as a tort unto itself. To better the jurisprudential analysis of contributory negligence, let us first take a brief look at the concept of negligence.

"Negligence[1] is failure to use such care as prudent person would use, under similar circumstances. It is also an omission to do something which a reasonable man, guided by those ordinary considerations which normally regulate human affairs, would do." The duty of care is essential in understanding the nature and scope of tort of negligence. Important elements of the tort of negligence include the element of negligence or the breach of duty, as well as whether the plaintiff or the class of people to which the plaintiff belongs was the objective of the duty.

Despite the fact that the term "contributory negligence" had not yet been coined, Butterfield v. Forrester (1809), a landmark case on the subject at the beginning of the 19th century, gave rise to the defence. Surprisingly, the legal profession deemed the principle described in Butterfield v. Forrester to be a well-established principle that was undisputed. Contributory negligence is the failure of both the plaintiff and the defendant to act with reasonable care in each of their respective actions. It is a defence in tort law.

What Is Contributory Negligence?

When the plaintiff by his own disposition contributes to the damage caused by the negligence or wrongful conduct of the defendant, they are said to be guilty of contributory negligence.

An accident is said to be the by-product 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."

There are several case laws related to contributory negligence one being, Rural Transport Service v. Bezlum Bibi (1980). In this case, the conductor of a jam-packed bus urged passengers to travel on the roof of the bus. The driver, despite knowing the bus to be overcrowded, ignored the act of the conductor. While trying to overtake a cart, the bus swerved to the right an ended up on an unpaved road.

Meanwhile, a passenger sitting on the roof was hit by the branch of a tree and died. It was held that both the driver and the conductor were negligent. The passengers, including the deceased, were also deemed to have been negligent for taking the chance of sitting on the roof. Hence, it was a case of contributory negligence.

In the words of Lord Ellenborough, "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 o avoid it on the part of the plaintiff."

Rules To Establish Contributory Negligence

There are broadly two rules to be kept in mind while deciding a case of contributory negligence:
  1. The definition of negligence as it relates to the defence of contributory negligence differs from that of the tort of negligence. In this case, the plaintiff is not required to have a duty of care toward the opposing party. The plaintiff's failure to exercise reasonable care for his own safety and subsequent contribution to his own harm must be proven. All that must be demonstrated to the jury's satisfaction is that the injured party's failure to take reasonable care of himself contributed to his own injury.
  2. Justifying the plaintiff's lack of adequate care for his own safety is inadequate. Additionally, it must be demonstrated that negligence was a factor in the harm that resulted. The defence of contributory negligence cannot be pleaded if the defendant's negligence might have resulted in the same damage even if the plaintiff had exercised caution and the plaintiff's negligence is not the primary cause of the accident.

Bhagwat Sarup v. Himalaya Gas Co.:

The deliveryman from the defendant company was sent to the plaintiff's home to replace a gas cylinder. The deliveryman asked for an axe and hammered the cap of the cylinder with it. As a result, there was a gas leak which caused fire killing the plaintiff's daughter, injuring their family members, and damaging their property. The deliveryman was held solely responsible for negligence on his part as the mere fact that the plaintiff gave the axe to the former does not imply contributory negligence on his part.

Agya Kaur v. Pepsu Road Transport Corporation:
Three adults along with child were riding in an overloaded rickshaw that was on the right side of the road when it was struck by a bus that was being driven at an accelerated speed, on the wrong side. It was reckoned that there was no negligence on part of the rickshaw driver even though it was overloaded, as it did not in any way contribute to the accident. The bus driver was held was solely responsible and there was no contributory negligence.

The Doctrine Of Last Opportunity

According to this doctrine, the party who had the last chance to prevent the accident should be held accountable for it in a matter of contributory negligence. The Davies v. Mann case provides an explanation of this rule. The plaintiff in this case moored their donkey on a busy highway and left. The donkey was killed as a result of the defendant's high-speed collision with it while riding a horse-drawn wagon. Since the defendant had the final opportunity to avoid the accident, he was found to be at fault. It was decided that the plaintiff was eligible to claim damages.

The doctrine was found to be unsatisfactory as one party was being made to pay for the damages of an accident that was an outcome of the negligence on part of both the parties. To resolve this, a reform was brought about in the form of Law Reform (Contributory Negligence) Act, 1945. Under this, in a case of contributory negligence where both parties have contributed to the damage, the damages will be divided as between them with respect to the proportion of their fault. However, there is no Central Legislation in India, equivalent to this act.

The Landmark Case Of Butterfield v/s Forrester

In this instance, the defendant, Forrester, lived in close vicinity of the road. In the course of fixing the house, he blocked the road by placing a pole in the way, which was an obstruction. Around 8 o'clock in the evening, while travelling at an excessive speed, the plaintiff, Butterfield, struck the obstruction and was knocked off his horse. Forrester was sued by Butterfield for damages.

Although it was noted that Butterfield was not intoxicated when riding, a witness was able to establish that the accident might have been prevented had the plaintiff been travelling at a reasonable speed. Whether the defendant should be held liable for a negligent act if the plaintiff could have prevented the damage by using ordinary care was the question before the jury.

The Kings Bench Court decided in Forrester's favour and dismissed the case after hearing an appeal. The Court came to the conclusion that a plaintiff who failed to exercise reasonable caution and caused the accident would not be compensated. Owing to the defence of contributory negligence, any claim for damages, no matter how minor the plaintiff's part in the accident, was totally precluded. Therefore, the defendant would be found not guilty if a successful claim of contributory negligence was made in a scenario where there was negligence on the side of both opposing parties.

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.

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.

  1. Rajkot Municipal Corpn. v. Manjuben Jayantilal Nakum [1997] 9 SCC 552.

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