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Contributory and Composite Negligence in Tort Law

Contributory and Composite Negligence in Tort Law
Contributory and Composite Negligence in Tort Law


Understanding Contributory Negligence

Contributory negligence occurs when the plaintiff, through their own lack of care, contributes to the damage resulting from the defendant's negligence or wrongful conduct. It serves as a defence wherein the defendant must demonstrate that the plaintiff's failure to exercise reasonable care for their safety played a role in the harm suffered.

For instance, if A, while travelling on the wrong side of the road, is struck by a vehicle driven recklessly by B coming from the opposite direction, A may be met with the defence of contributory negligence.

In Rural Transport Service v. Bezlum Bibi, the conductor of an overcrowded bus encouraged passengers to travel on the roof. Despite the driver's negligence in disregarding the passengers on the roof, there was contributory negligence on the part of those passengers, including the deceased, who willingly assumed the risk of travelling in such a precarious manner.

Similarly, in Davies v. Swan Motor Co. Ltd., an employee riding on the steps of a dust lorry in violation of regulations was injured in a collision with an omnibus. While negligence was attributed to the omnibus driver, there was also contributory negligence on the part of the deceased employee.

In Yoginder Paul Chowdhury v. Durgadas, the Delhi High Court ruled that a pedestrian who abruptly attempts to cross a road and is subsequently struck by a moving vehicle is guilty of contributory negligence. A similar decision was reached in Nance v. British Columbia Electric Rly. Co., where a pedestrian crossing a slippery road was deemed contributorily negligent.

Furthermore, in Harris v. Toronto Transit Commission, the Supreme Court of Canada held that a boy sitting in a bus who extends his arm outside despite warnings and is injured bears contributory negligence.


Determining Contributory Negligence

To establish contributory negligence, the plaintiff's actions must deviate from what a prudent individual would do in a similar situation. If the plaintiff exercises the same level of care as a reasonable person would, then contributory negligence is not applicable.

In Sushma Mitra v. Madhya Pradesh State Road Transport Corporation, the plaintiff was injured while travelling in a bus with her elbow resting on a window sill. Despite the defendant arguing that this constituted contributory negligence, the court disagreed.

It reasoned that while travelling on a highway, it was reasonable for a passenger to rest their elbow on the window sill, and thus the plaintiff was entitled to compensation.

Similarly, in Mrs. Sydney Victor v. Janab S. Kadar Sheriff, the court rejected the argument of contributory negligence when a passenger's thumb was severed while gripping a window bar. The court determined that such an action was not negligent, especially on a broad highway.

In Klaus Mittelbachert v. East India Hotels Ltd., the plaintiff suffered paralysis and subsequent death after diving into a hotel swimming pool with insufficient water. The court found the hotel liable for maintaining hazardous premises and ruled out contributory negligence on the plaintiff's part.

Contributory Negligence and Its Defence

Contributory negligence historically served as a robust defence at Common Law, wherein the plaintiff's own negligence acted as a bar to their action against a negligent defendant. This negligence pertained to the plaintiff's failure to exercise due care for their own safety rather than a breach of duty towards the defendant.

In Butterfield v. Forrester, for instance, the plaintiff collided with a pole wrongfully obstructing a highway. Despite the defendant's obstruction, the court ruled against the plaintiff, emphasising that if the plaintiff had been reasonably vigilant, they could have avoided the accident.

This decision exemplifies the principle that a party's negligence, no matter how slight, can affect the outcome of their claim.

However, this strict application of contributory negligence often resulted in significant hardships for plaintiffs, who risked losing their actions due to minor negligence compared to the defendant's primary fault. Recognizing this imbalance, courts introduced the concept of the "Last Opportunity" or "Last Chance" rule to mitigate the severity of contributory negligence.

Under this rule, if the plaintiff had a last opportunity to avoid the harm caused by the defendant's negligence but failed to do so due to the defendant's own negligence, the defendant could be held solely liable. This shift aimed to ensure a fairer distribution of liability, particularly in cases where the plaintiff's negligence was comparatively minor.

The evolution of contributory negligence and the introduction of the Last Opportunity rule reflect the ongoing efforts of the legal system to balance accountability and fairness in negligence cases.


Last Opportunity Rule

The Last Opportunity Rule delineates that in cases of negligence where both parties are at fault, the individual who had the final chance to prevent the accident through ordinary care should bear liability for the resulting loss. 

Essentially, if the defendant's negligence leads to an accident and the plaintiff, with a subsequent opportunity to avoid harm, fails to exercise reasonable care, the defendant cannot be held accountable. Conversely, if the defendant had the last chance to avert the accident, they will be responsible for the entirety of the plaintiff's loss.

Illustrating this principle is the case of Davies v. Mann, where despite the plaintiff's negligence in tethering his donkey on a narrow highway, the defendant's reckless driving resulted in the donkey's death. Here, the plaintiff was entitled to recover damages as the defendant had the final opportunity to prevent the accident.

Similarly, in Radley v. L. & N. W.R. Ry., negligence on the part of the plaintiffs in overloading a truck did not absolve the defendants, who could have avoided damaging the plaintiff's bridge through reasonable care.

The rule's application expanded in British Columbia Electric Co. v. Loach to include cases of "Constructive Last Opportunity." In this scenario, if the party with the last chance to prevent the accident had not been negligent, they are considered responsible.

For instance, if defective brakes on a tram prevent it from stopping in a collision, despite the negligence of the wagon driver in crossing the tramline, the tramway company is liable for failing to avert the accident.

However, this rule also presented shortcomings, particularly in maritime collisions, where one party's earlier negligence absolved them of responsibility entirely. To address this, the Maritime Conventions Act, 1911, and subsequently the Law Reform (Contributory Negligence) Act, 1945, established a system of apportioning damages based on the degree of fault exhibited by each party involved in the negligence.

Doctrine of Apportionment

In India, the doctrine of apportionment of damages in cases of contributory negligence aligns with principles established in the Law Reform Act of England, although there's no corresponding central legislation. The Kerala Torts (Miscellaneous Provisions) Act, 1976, is one of the few enactments that address this aspect, similar to the English law.

Various High Courts in India have applied the doctrine, reducing compensation based on the degree of fault attributed to the plaintiff.

For instance, in Rural Transport Service v. Bezlum Bibi, negligence on the part of both the conductor and driver of an overloaded bus, as well as the deceased passenger who chose to travel on the roof, resulted in the court reducing compensation by 50%.

Similarly, in cases like Subhakar v. Mysore State Road Transport Corporation and Vidya Devi v. M.P. Road Transport Corpn., the courts have reduced compensation by 50% when both parties were found to be negligent.

Other instances include Maya Mukherjee v. The Orissa Cooperative Insurance Society Ltd., where the court apportioned damages based on a 60%-40% ratio of responsibility between a motorcyclist and a car driver, and Rehana v. Ahmedabad Municipal Transport Service, where the compensation payable to a cyclist was reduced by 25% due to contributory negligence.

The principle has also been upheld by the Punjab and Haryana High Court in Satbir Singh v. Balwant Singh, where compensation was reduced by 2/3rd for a motorcyclist found to be guilty of contributory negligence.

However, in cases where negligence is solely attributed to one party, such as Oriental F. & G. Ins. Co. v. Manjit Kaur, where the scooterist's negligence led to a fatal accident, the claim for compensation was dismissed entirely.


Doctrine of Alternative Danger

In certain circumstances, the plaintiff may find themselves in a perilous situation created by the defendant's negligence. Despite the expectation for the plaintiff to exercise caution, there are instances where taking a calculated risk becomes necessary to avoid the danger posed by the defendant's actions. 

This legal principle, known as the Doctrine of Alternative Danger, allows the plaintiff to confront an alternative risk to safeguard themselves, their property, or even a third party from the danger created by the defendant.

When faced with a dangerous situation caused by the defendant's negligence, the plaintiff may opt to take evasive action, even if it involves some risk.

If the plaintiff's chosen course of action results in harm to themselves, their claim against the defendant remains valid, provided their decision was reasonable under the circumstances. However, it's essential that the plaintiff's judgement is not rash or reckless.

An illustrative case that exemplifies this principle is Jones v. Boyce. In this case, the plaintiff, a passenger in the defendant's coach, found themselves alarmed by the defendant's negligent driving.

In an effort to protect themselves from the imminent danger, the plaintiff made the decision to jump off the coach, resulting in a broken leg. Despite the harm suffered by the plaintiff, their action against the defendant was upheld, as it was deemed reasonable given the circumstances.

Similarly, in Shyam Sunder v. State of Rajasthan, the defendants' negligence led to a truck catching fire shortly after setting off on a journey. In an attempt to escape the fire, one of the occupants jumped out of the truck but tragically died after colliding with a stone. The defendants were held liable for the consequences of their negligence.

The principle was further affirmed in Sayers v. Harlow Urban District Council, where the plaintiff sustained injuries while attempting to escape from a defective public lavatory. Despite the plaintiff's actions leading to harm, the defendants were held liable due to their breach of duty in maintaining the lavatory.

In situations such as a train overshooting a platform, passengers are justified in taking the risk of disembarking without a platform to avoid being carried further. If injury occurs during this action, the railway company would be held liable for their negligence.

Composite Negligence

Composite negligence occurs when the negligence of two or more individuals leads to the same damage. These individuals, known as composite tortfeasors, collectively bear responsibility for the resulting harm. In England, composite tortfeasors were traditionally classified into joint tortfeasors and independent tortfeasors, each governed by different liability rules. 

However, legislative acts such as the Law Reform (Married Women and Tortfeasors) Act, 1935, and the Civil Liability (Contribution) Act, 1978, have harmonised their liabilities to some extent.

In India, courts have not strictly adhered to English law and have instead adopted rules aligned with principles of justice, equity, and good conscience suitable to Indian conditions. Unlike in England, where the distinction between joint and independent tortfeasors is significant, Indian courts have used the term "composite negligence" to encompass cases involving both types of tortfeasors. 

Occasionally, courts have overlooked the distinct connotations of joint and independent tortfeasors, using the term "composite or joint tortfeasors" to refer to situations involving independent tortfeasors.


Nature of Liability in Case of Composite Negligence

In cases of composite negligence, the liability of the tortfeasors is joint and several. This means that each tortfeasor is collectively responsible for the entire damage caused, and the plaintiff can enforce the entire claim against any one of the defendants. No tortfeasor can argue for apportionment of liability based on their individual level of fault. 

However, a tortfeasor who has paid more than their share of the liability can seek contribution from the other tortfeasors.

Despite a previous Single Bench decision suggesting the possibility of apportionment of liability among tortfeasors, subsequent cases have largely dissented from this view.

Courts in various Indian states including Madhya Pradesh, Madras, Mysore, Punjab & Haryana, Orissa, Gujarat, Rajasthan, Guwahati, and Karnataka have favoured the principle of joint and several liability without apportionment among tortfeasors. This aligns with the concept of joint and several liability.

For example, in a case where two buses collided resulting in injuries to passengers, the Karnataka High Court ruled that both drivers were jointly and severally liable for the compensation.

Similarly, in a case involving an accident between a state transport bus and a car, resulting in death and injuries, the Guwahati High Court rejected the apportionment of damages and held the state responsible for the entire claim.

However, it clarified that this ruling did not prevent the state from seeking contribution from the owner of the car.

Contributory Negligence and Composite Negligence Distinguished

Nature of Negligence:

  • Contributory Negligence: In contributory negligence, the plaintiff contributes to their own harm by failing to exercise reasonable care for their own safety, in addition to the negligence of the defendant. The loss suffered by the plaintiff is the combined result of both the defendant's negligence and the plaintiff's contributory negligence. Contributory negligence is a defence, and damages are apportioned based on the extent of fault.

  • Composite Negligence: Composite negligence occurs when a person is injured as a result of the combined negligence of two or more other persons, without any negligence on the part of the plaintiff. In this case, there is negligence on the part of multiple defendants towards the plaintiff, and the plaintiff themselves is not at fault for the harm suffered.


  • Contributory Negligence: In cases of contributory negligence, the liability is apportioned between the plaintiff and the defendant based on their respective levels of fault. If both parties are found to be equally at fault, the defendant's liability is reduced accordingly.

  • Composite Negligence: The liability of the persons guilty of composite negligence is joint and several. There is no apportionment of damages among the defendants. Instead, there is a single decree for the whole amount against all defendants, making them jointly and severally liable. The court does not consider how much each defendant should pay individually.


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