LAW OF TORT CONTRIBUTE NEGLIGENCE Introduction History of

LAW OF TORT CONTRIBUTE NEGLIGENCE: Introduction History of contributory negligence Doctrine of alternative danger and contribute negligence contributory negligence of children burden of proving contributory negligence distinction between contributory and composite negligence distinction between negligence and contributory negligence

History The doctrine of contributory negligence was dominant in U. S. jurisprudence in the 19 th and 20 th century. The English case Butterfield v. Forrester is generally recognized as the first appearance, although ironically in this case the judge found the victim to be the sole proximate cause of the injury.

INTRODUCTION Contributory negligence is negligence in not avoiding the consequence arising from the defendant's negligence, when plaintiff has means and opportunity to do so. In fact, it is nonexercise by the plaintiff of such ordinary care, diligence, and skill, as would have avoided the consequences of defendant's negligence. Its, therefore, means that in the case of contributory negligence both the parties (plaintiff and defendant) are negligent.

For example, a pedestrain crosses a road negligently and is hit by a driver who was driving negligently. Since the pedestrian has also contributed to the accident, they may be barred from complete and full recovery of damages from the driver (or their insurer) because the accident was less likely to occur if it weren't for their failure to keep a proper lookout. Another example of contributory negligence is where a plaintiff actively disregards warnings or fails to take reasonable steps for his or her safety, then assumes a certain level of risk in a given activity; such as diving in shallow water without checking the depth first.

Doctrine of alternative danger and contribute negligence The doctrine of alternative danger means the choice of risks i. e. , where the defendant has placed the plaintiff in a situation of extreme peril, he cannot set up the Defence of contributory negligence merely because the plaintiff, acting under a reasonable apprehension of danger and in a reasonable and prudent way, has adopted a perilous way of escape and is injured.

Contributory negligence of children The doctrine of contributory negligence does not apply to children. It is no defence to say that the child itself was negligent, for, negligence is a state of mind and children have not sufficient mind to judge as quickly as an adult. The rule of contributory negligence will, therefore not inflexibly apply in cases where young children are concerned. The defence of contributory negligence is more difficult to make out in the case of child than in the case of adult.

Burden of proof In some jurisdictions, the defendant has to prove the negligence of a plaintiff or claimant. In others, the burden of proof is on a plaintiff to disprove his or her own negligence. Even if the plaintiff was negligent, the tortfeasor may still be held liable, if he or she had the last clear chance to prevent the injury.

Availability Contributory negligence is generally a defense to a tort of negligence. The defense is not available if the tortfeasor's conduct amounts to malicious or intentional wrongdoing, rather than to ordinary negligence. In England Wales, it is not a defense to the tort of conversion or trespass to chattels. In the United States, it is not a defense to any intentional tort. In Australia, contributory negligence is available when the plaintiff's own negligence contributed to its own injuries. Also refer to Pennington v Norris for second test

Contributory negligence is very important for two reasons: 1. The percentage by which you are found to contribute is the percentage deducted from your compensation. So if you are found 50 per cent to blame you loss 50 per cent of the compensation. 2. An admission of liability does not mean contributory negligence cannot be argued against you. So just because a Defendant has admitted liability does not mean you will get 100 per cent of your compensation. Ask for an admission of liability and agreement that contributory negligence will be argued against you.

Determining the extent of contributory negligence Determining the extent of the contributory negligence is subjective and heavily dependent on the evidence available. Parties will often work to negotiate a mutually satisfactory percentage figure when engaging in alternative dispute resolution (such as mediation). If the matter does not settle, a percentage figure is ultimately assigned by the court at the hearing.

Distinction between contributory and composite negligence As has already been above, where both parties (plaintiff and defendant) are negligent, it is a case of contributory negligence. However, where a person is injured without any negligence on his part but as a result of the combined effect of the negligence of two other persons, it is a case of composite negligence. Contributory negligence is considered as defence whereas composite negligence is not.

Distinction between negligence and contributory negligence Negligence arises where the defendant is said to be in breach of legal duty to take reasonable care, which results in damage to the plaintiff, whereas contributory negligence arises when plaintiff is said to be carelessness in looking after his own safety. Thus, negligence depends on a breach of duty to others, whereas contributory negligence does not, it is a man’s carelessness in looking after his own safety.

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