The distinction between tort and crime belongs to comparatively mature age of civilization and social order. The English had applied the common law rule of plaintiff’s contributory negligence in India upon the basis of justice, equity and good conscience as there has been no specific provisions when they came to India. The Courts established by them were required to decide the cases, in the absence of any law, according to justice, equity and good conscience. The expression `justice, equity and good conscience’ has been interpreted to mean the rules of English law if found applicable to Indian society and circumstances.

By the Charter of 1726, both common law and statute law of England, were introduced as they stood in 1726. During British Rule, the Courts in India were required to apply the law as enacted by British Parliament and the Indian Legislation and were also required to act according to justice, equity and good conscience. The earliest enactments of Parliament of U.K. were of 1781 and 1797 which provide that in the absence of any enacted law applicable to the circumstances, the case was to be decided according to justice, equity and good conscience.

In case of torts, the courts tried to follow the rules of common law in so far as they were in consonance with justice, equity and good conscience. They departed from it when any of its rules were unreasonable and unsuitable to Indian conditions. The application of English law in India as rules of justice, equity and good conscience has, therefore, been a selective application.

Sir Fredrick Pollock prepared a draft Code of Torts for India known as `The Indian Civil Wrongs Bill’ at the instance of the Government of India. But it was not taken up for legislation. In this draft the law relating to contributory negligence was not dealt with.

The English Rule of Contributory negligence

The development of the doctrine of contributory negligence could profitably be traced from the case of Butterfield vs. Forester.

The facts of the case were: In the course of repairing his house the defendant obstructed the street by placing a pole across it. The plaintiff riding home at dusk when there was sufficient light to notice the obstruction, but galloping at high speed came into collision with the pole, and was injured. It was held that he had no cause of action. Notwithstanding the defendant’s negligence, the plaintiff might have avoided the accident by the use of due care. If he had used ordinary care, he must have seen the obstruction; so that the accident appeared to happen entirely from his own fault.

Thus, the Courts had evolved the rule that if there was some negligence on the part of the plaintiff he was debarred from getting damages. To make one of the parties to pay the while liability in spite of other’s contribution, was a manifestation of the social policy of individualism which prevailed in England during the commencement of nineteenth century. The policy in effect gave expression to the view that nobody is expected to take more care of another than the latter is expected to do about his own safety.

According to a theory derived from John Stuart Mill and known as the theory of equivalence of conditions, in all cases where it is impossible to fix on a single act as a cause of action of an event and the event is the result of a group of conditions each of which is a necessary antecedent, both parties have combined to cause the damage and both should pay for it.

Applicability of the Doctrine of Contributory Negligence in India.

The Indian Courts use to apply the defence of contributory negligence, that a plaintiff who is partly to blame for the wrong claimed to have been caused by the defendant cannot recover any damages.

The first reported case in which the English common law doctrine of contributory negligence refusing to give any relief due to contributory negligence of the plaintiff was decided in 1909. In this case, a railway company contracts to carry passengers inside the railway carrier. A person travelling outside the carrier and putting his legs outside the carrier was injured. The contributory negligence of the passengers was held to be a good defence to an action for damages. This rule was later applied by the Courts in India while deciding the cases having an element of contributory negligence.

The Courts in India have applied English law as being in consonance with the rules of justice, equity and good conscience, except in special cases where the English law has been considered by the judges to be unreasonable and unsuitable to local conditions.

Development of the Rule of Last Opportunity by the Common Law Courts

The Common law principle laid down in Butterfield vs. Forestar, was that if the plaintiff was also negligent, he could not recover damages if his own negligence was a cause of the accident. Thus the defendant was held to be a tort-feasor, the plaintiff’s contribution to the tort wholly absolved him from damages.

A rigid application of this rule obviously resulted in harsh and inequitable treatment of those whose contribution to the wrong was less but whose loss in suffering was great. This stalemate rule worked hardship where one of the two negligent parties had sustained the whole of the loss although his negligence was not a major cause of the accident.

The common law courts, therefore, introduced the rule of `last opportunity’ which enabled a plaintiff to recover notwithstanding his negligence; if it is found that the defendant had the last opportunity to avoid the accident.

In United States, it is known as the doctrine of `last clear chance’ and in Canada as the doctrine of` ultimate negligence’. It enabled the plaintiff to recover notwithstanding his own negligence, if upon the occasion of the accident the defendant could have avoided the accident while the plaintiff could not.

It was laid down in Davies v. Mann, that the contributory negligence of the plaintiff is no defence if the defendant had a later opportunity than the plaintiff of avoiding the accident with reasonable care. This rule was approved by the House of Lords in Radley vs. Lodon and N.W. Rlay.

 This rule of last opportunity was extended to constructive last opportunity in British Columbia Electric Rly. Co. v. Loach where it is modified to mean that if the plaintiff and the defendant were both in default, the determining question is, without whose negligence the mischief might have not happened? In ultimate analysis the enquiry is who caused the accident?

Applicability of the Last Opportunity Rule in India

The common law doctrine of contributory negligence as laid down in Butterfield vs. Forrester was followed in India on the basis of justice, equity and good conscience, produced hardship when one of the two negligent parties suffered the greater loss although his negligence was not the major cause of accident.

In Chhote Lal v. G.I.P. Rly Co. the rule of last opportunity developed by the common law courts was recognized as applicable. Later on Calcutta High Court also recognized the applicability of the rule.

The rule of last opportunity obviously failed to give an equitable treatment to the parties, because it was based on an illogical postulate that in every case the person whose negligence came last in time was solely responsible for the damages. It took no account of the partial contribution to the unfortunate accident by the other party.

So the common law courts had already modified it to mean `constructive last opportunity’ in the historical case of British Columbia Rly Co. v. Loach. The decision was followed by the Courts in India. Thus, in Suman v. The General Manager, M.P.S.R.T.C. and another, this new rule of constructive last opportunity was followed.

In a case of contributory negligence, the crucial question on which the liability depends is whether either party could by the exercise of reasonable care have avoided the consequences of other’s negligence; if he could then that party is legally responsible for the accident. Similar view was taken in Ramesh Chander Dutt v. Union of India.


  1. “Law Relating to Contributory Negligence”, First Edition, by Dr. Gurbax Singh Karkara
  2. Ramdevsing V. Chudasma vs Hansrajbhai V. Kodala, 1999 ACJ 1129, (1999) 1 GLR 631