Author: Tripti Srija, III year of B.B.A.,LL.B. from KIIT school of law
Introduction
Negligence is a type of tort which means a breach of duty (duty to take care) by one person which causes damages to another person. It is an act of carelessness and ignorance on the part of the defendant which he is obligated to perform which a rational and prudent man would not do. In general, 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.
Breach of duty to take care and measures in order to avoid any kind of performing an act is the basic requirement in order to raise liability of negligence. Suit for negligence arises when there is a breach of duty which is recognised by law. A defence available where it is proved that the claimant's own negligence contributed to its loss or damage.
Contributory negligence
Contributory negligence basically means ignorance from both the parties involved. If a person is driving a car without any breaks met with an accident with another person who was driving on the wrong side of the road. This results in contributory negligence. It’s a defence available to the defendant in case of contributory negligence which prevents the plaintiff to get compensation.
Contributory negligence is the ignorance of due care on the part of the plaintiff to avoid the consequences of the defendant’s negligence. This concept is loosely based on the maxim- “Volenti non fit injuria” (injury sustained voluntarily). It means If a person is not taking due diligence in order to avoid consequences resulting out from the negligence of the defendant the liability of negligence will be on both of them.
Principles of contributory negligence
If the plaintiff is himself negligent for taking due care in order to avoid consequences and becomes the direct cause of the damages, he is not entitled to receive any compensation.
If both the plaintiff and the defendant have taken reasonable measure and ordinary care to such extent where they both wanted to avoid such consequences then the plaintiff can’t sue the defendant.
The burden of proving contributory negligence
The burden of proof lies over the defendant. In order to get the defence of contributory negligence, the defendant must prove that the plaintiff is responsible as him, and ignored due diligence which could have avoided such consequences arising from the negligence of the defendant.
Hansraj v. Tram CO., 35 Bom.478
A attempted to board a moving tramcar and end up getting injured. He sued the company. It was held that if he would have boarded in a tramcar, not in motion, it would have been easier for him to get a firm grip in the handlebar and settle down easily. The company was not held liable.
DOCTRINE OF LAST OPPORTUNITY
The term rule of the last opportunity means the last opportunity to avoid an accident. If in a situation both the plaintiff and the defendant are negligent on their part and whosoever has the last opportunity of avoiding such consequences fails to do so will be held responsible for such accident solely.The doctrine of last opportunity or last clear chance doctrine of law of tort, is applicable to negligence cases in jurisdictions that apply rules of contributory negligence instead of comparative negligence. According to this doctrine, a negligent plaintiff can nonetheless recover if he is able to show that the defendant had last opportunity to avoid the circumstances of the accident. As the stated rationale has differed depending on jurisdiction adopting the doctrine of last opportunity, the underlying idea is to mitigate the harshness of the contributory negligence of rule. Even a defendant conversely also use the doctrine of last opportunity as a defense. If the plaintiff had the clear chance to avoid the circumstances of the accident, the defendant can use the doctrine and shall not be held liable.The last opportunity doctrine was constructed by the judges to ease the harness effects of the contributory negligence. Many judges in some of the states believed that negligent plaintiffs should still be able to get some compensation in certain areas with contributory negligence, rather than come away with nothing. A negligent plaintiff that to prove that, between both the plaintiff and the defendant, the defendant was the one who has the last opportunity to avoid the accident or change the course and could have protect the plaintiff from injury.
The exact definition of the last clear chance or last opportunity doctrine vary from state to state, but the common definition says that, even if the plaintiff was negligent for the accident and had a connection with it, he or she can still recover damages as the defendant could have avoided the accident altogether by the exercise of reasonable prudence and ordinary care. So as to successfully employ the last opportunity or last clear chance doctrine, the plaintiff must strictly prove the following: • There was some actual or immediate danger caused to the plaintiff and he or she was unable to extricate him or herself from the danger. • The defendant was aware and had complete knowledge of the danger, and • The availability of a reasonable opportunity near the defendant to avoid the accident or change the course of action and prevent the injury.
Illustration
A is out for a walk with his dog but without a leash on him. The dog suddenly ran towards the road and got hit by B who was driving rashly. Here B had the last opportunity to avoid that accident by pushing the brake pedal.
Limitations
Where the defendant is aware of the gravity of the consequences and fails to take proper measure, he will be held liable.
For instance in the given example above if, B sees the dog from a long distance and still avoids to take reasonable care which resulted in the death of the plaintiff, he will be held liable. The defendant would have the last opportunity but according to law, it is equal to one he did for his own negligence.
Davies vs Mann 152 Eng. Rep. 588 (1842)
In the instant case, the defendant while driving a wagon killed the donkey of the plaintiff which was fettered at the side of the road. It was held that the defendant had the last opportunity to avoid the accident by taking appropriate measures.
Conclusion
It can be concluded that contributory negligence is the defence available to the defendant which restricts or prevents the plaintiff to get rewards or compensation. It is the omission of an act or ignorance to take due diligence for avoiding the negligence of others. In the case of contributory negligence burden of proof lies over the defendant. There are certain conditions to which the defence of contributory negligence doesn’t apply as mentioned above.
Last opportunity for the inattentive plaintiff: A plaintiff who, get to know about the danger by exercising his reasonable vigilance, which is created by the defendant’s negligence in time to avoid the danger to him, can recover if, but only if, the defendant • knows of the plaintiff’s situation, and • realizes or has reason to realize that the plaintiff is inattentive and therefore unlikely to discover his peril in time to avoid the harm, and • thereafter is negligent in failing to utilize with reasonable care and competence his then existing opportunity to avoid the harm.