February 9, 2023

Negligence- Test, Contributory and Composite Negligence, and Doctrine of last opportunity

Meaning of Negligence

Negligence is omission of duty caused either by an omission to do something which a reasonable man guided upon those considerations who ordinarily by reason of conduct of human affairs would do or obligated to, or by doing something which a prudent or reasonable man would not do.

Negligence does not always mean absolute carelessness, but want of such a degree of care as is required in particular circumstances. Negligence is failure to observe, for the protection of the interests of another person, the degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury. The idea of negligence and duty are strictly correlative. Negligence means either subjectively a careless state of mind, or objectively careless conduct.

Test of Negligence

Negligence is not an absolute term, but is a relative one; it is rather a comparative term. No absolute standard can be fixed and no mathematically exact formula can be laid down by which negligence or lack of it can be infallibly measured in a given case. What constitutes negligence varies under different conditions and in determining whether negligence exists in a particular case, or whether a mere act or course of conduct amounts to negligence, all the attending and surrounding facts and circumstances have to be taken into account. It is absence of care according to circumstances.

To determine whether an act would be or would not be negligent, it is relevant to determine if any reasonable man would foresee that the act would cause damage or not. The omission to do what the law obligates or even the failure to do anything in a manner, mode or method envisaged by law would equally and per se constitute negligence on the part of such person. If the answer is in the affirmative, it is a negligent act.

Contributory negligence

Where an accident is due to negligence of both parties, substantially there would be contributory negligence and both would be blamed. In a case of contributory negligence, the crucial question on which liability depends would be whether either party could, by exercise of reasonable care, have avoided the consequence of other’s negligence. Whichever party could have avoided the consequence of other’s negligence would be liable for the accident.

If a person’s negligent act or omission was the proximate and immediate cause of death, the fact that the person suffering injury was himself negligent and also contributed to the accident or other circumstances by which the injury was caused would not afford a defence to the other.

Contributory negligence is applicable solely to the conduct of a plaintiff. It means that there has been an act or omission on the part of the plaintiff which has materially contributed to the damage, the act or omission being of such a nature that it may properly be described as negligence, although negligence is not given its usual meaning. (See Charlesworth on Negligence, 3rd Edn. Para 328).

It is now well settled that in the case of contributory negligence, courts have power to apportion the loss between the parties as seems just and equitable. Apportionment in that context means that damage is reduced to such an extent as the court thinks just and equitable having regard to the claim shared in the responsibility for the damage. But in a case where there has been no contributory negligence on the part of the victim, the question of apportionment does not arise.

Composite negligence

Where a person is injured without any negligence on his part but as a result of combined effect of the negligence of two other persons, it is not a case of contributory negligence in that sense. It is a case of what has been styled by Pollock as injury by composite negligence. (See Pollock on Torts, 15th Edn. P.361)

Doctrine of last opportunity

At this juncture, it is necessary to refer to the ‘doctrine of last opportunity’. The said doctrine is said to have emanated from the principle enunciated in Devies v. Mann (1842 (10) M&W 546) which has often been explained as amounting to a rule that when both parties are careless the party which has the last opportunity of avoiding the results of the other’s carelessness is alone liable.

However, according to Lord Denning it is not a principle of law, but test of causation.[1] Though in some decisions, the doctrine has been applied by courts, after the decisions of the House of Lords in The Volute (1922 (1) AC 129) and Swadling v. Cooper (1931 AC 1), it is no longer to be applied. The sample test is what was the cause or what were the causes of the damage.


The Municipal Corporation vs Shri Laxman Iyer, 2003

[1] See Davies v. Swan Motor Co. (Swansea) Ltd. (1949 (2) KB 291