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 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
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
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
- 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
- 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
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.
- Rajkot Municipal Corpn. v. Manjuben Jayantilal Nakum  9 SCC 552.