This article is written by Mohit Bhardwaj. A 2nd year Law student, currently pursuing BBA-LL.B(Hons.) from Unitedworld School of Law, Karnavati University. In this article, the author discusses the defence for negligence i.e. Contributory negligence. To substantiate the concept, reference is made to all the statutes covered by the topic, with relevant illustrations and case laws.

INTRODUCTION

The expression Contributory negligence means an act of negligence in which both the defendant and the plaintiff are contributors. In other words, Contributory negligence means failure to take reasonable care of one own self.

Contributory negligence is the plaintiff’s failure to exercise reasonable care for their safety. A plaintiff is a party who brings a case against another party (the defendant). Contributory negligence can bar recovery or reduce the amount of compensation a plaintiff receives if their actions increased the likelihood that an incident occurred. Often, defendants use contributory negligence as a defence.

For example- A bus driver(defendant) is driving his bus at a very fast speed and one of the passengers of that bus is waving his hand outside the window of the bus and he (plaintiff) got injured due to some object on the road by this action the plaintiff also contributed in the negligence so he will not be entitled to get compensation from the defendant.

Generally, in case of negligence, the defendant is held liable for his wrong act but if the plaintiff contributes in that act by not taken the due care and caution which he could have taken. Hence he is liable for his own loss and can not recover damages from the defendant. 

Important points 

  1. Plaintiff has contributed to the negligence of the defendant 
  2. Negligence of the plaintiff in not avoiding the consequences arising from the negligence of the defendant 
  3. Here plaintiff is considered to be the author of his own wrong.

CASE LAWS

In the case of Shelton Vs L & W Railway(1946), while the plaintiff was crossing a railway line, a servant of the railway company who was in charge of crossing shouted a warning to him. Due to the plaintiff being deaf, he was unable to hear the warning and was consequently injured. The court held that this amounted to contributory negligence by him.


Understanding Contributory Negligence


Determining fault in an accident may be a critical aspect of insurance. An insurance policyholder may file an insurance claim seeking compensation for a loss or event that’s covered under the insurance policy. Insurance companies litigate to ensure that they are only liable for damages caused by their insured clients. As well, defence lawyers of the insurance companies typically plan to limit responsibility to the littlest extent possible.

Reviewing actions that led to an accident, insurers and therefore the courts determine the way to assign fault. The determination of fault will ultimately lead to deciding how much the insurer must pay as a result of the insurance claim. Insurers seek to pay as little as possible for a claim so as not to affect the company’s profitability.

In some cases, the party initiating a claim for damages may be found blameless. For example, if the insured’s property is up to code but damaged by a catastrophic event, the policyholder is likely to receive full compensation up to the coverage limit. In other cases, the individual filing a claim may be found to have contributed to the damages. As an example, a claim for property lost to fire after the insured was informed of faulty wiring but chose not to repair it may be considered negligent. Courts must decide how much damage was caused by the policyholder’s behaviour–which is the essence of contributory negligence–and payment could be reduced or denied.

The plaintiff is not entitled to recover from the defendant if it is proved that-

1)The plaintiff by the exercise of due care could have avoided the consequence of the defendant’s negligence.
2)The defendant could not have avoided the consequence of the plaintiff’s negligence by an exercise of ordinary care
3)There has been as much want of reasonable care on the plaintiffs part as on the defendants part and the former cannot sue the latter for the same.

The burden of proving negligence rests on the defendant within the first instance and within the absence of such evidence, it is not binding on the plaintiff  to prove its non-existence


State Laws


Some states allow contributory negligence if it’s a substantial factor in producing the plaintiff’s injury. State law determines how this negligence impacts a victim’s ability to receive compensation after an accident or loss. Some states allow the reduction of benefit if the victim is partially responsible, while others deny payment if the victim has any fault in an accident.



Contributory Negligence vs. Comparative Negligence


Comparative negligence is employed to assign fault or blame during a claim by determining what proportion fault lies between the defendant and plaintiff. With negligence, the fault is assigned, and damages awarded proportionately supported the degrees of determining negligence. The amount rewarded in an insurance claim might be calculated as follows: Plaintiff’s recovery = (Defendant’s % of fault X Plaintiff’s proven damages).

While Contributory negligence reduces the quantity of compensation a plaintiff receives, Comparative negligence looks to assign financial responsibility in the proportion of the parties involved in causing the incident. Most U.S. states have adopted Comparative negligence over Contributory negligence either by statute or judgment.

Example of Contributory Negligence
As an example, let’s say a construction worker subject to long-term exposure to asbestos develops lung cancer. Subsequently, he dies, and the family files a lawsuit against his employer for not employing proper safety measures according to industry standards. The defendant argues contributory negligence citing that the deceased worker smoked 10 packs of unfiltered cigarettes daily for over 20 years, which could have caused or contributed to his cancer. After determining fault and awarding damages, the court reduced the amount payable by the defendant based on the plaintiff’s negligence in protecting himself from lung cancer.

CONCLUSION

Thus this defence of negligence should be distinguished from several other doctrines often applied in negligence cases: the assumption of risk, which relieves the defendant of an obligation of due care toward the plaintiff when the latter voluntarily exposes himself to certain dangers; last clear chance, which allows the plaintiff to recover albeit contributorily negligent—if the defendant had the last clear chance to avoid the mishap.

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