Contributory and Composite Negligence

Why it matters here. It is the rule that makes a claim practical: an injured person need not disentangle whose fault was greater, and the insurer of one vehicle cannot delay payment by pointing at the other.

The table that keeps them apart

A single accident can involve both: two negligent drivers and a pedestrian who stepped out without looking. The court then reduces the total for the pedestrian's share, and the reduced sum is recoverable in full from either driver.

A worked example

A truck and a motorcycle collide at a junction. The motorcyclist, who was not wearing a helmet, suffers a head injury. A pedestrian standing at the corner is also hit.

The pedestrian. He was careless in no way. His injury was caused by the composite negligence of the truck driver and the motorcyclist, so on Khenyei he may recover the whole of his compensation from either of them, and the two must sort out contribution between themselves.

The motorcyclist. He was himself negligent in two respects, if the evidence shows it: the manner of his riding, and the absence of a helmet, which contributed to the extent of his head injury even if not to the collision. His damages will be reduced by the percentage the court fixes as his share.

The last opportunity rule. If the truck driver saw the motorcycle in time to stop and did not, the older approach would have made him liable for the whole; the modern approach reaches a similar result by giving him a much larger share on apportionment.

And the agony of the moment. If the motorcyclist swerved into a wall to avoid the truck and was hurt by the wall, the doctrine of alternative danger protects him: a reasonable choice made in the emergency created by the truck is not contributory negligence.

What it does NOT mean

Contributory negligence is not a complete defence today. It reduces the damages.

Composite negligence does not require the plaintiff to sue everybody. Khenyei holds that he may recover the whole from any one.

Composite negligence does not let a defendant pay only his share to the plaintiff. Apportionment operates between the wrongdoers.

A child is not judged as an adult. The standard is that of a child of that age, and a very young child cannot be contributorily negligent.

Quick revision

1. Contributory negligence: the plaintiff's own want of care for his safety, contributing to his damage.
2. Modern effect: apportionment, not a complete defence.
3. The last opportunity rule was the old mitigation of the harsh rule.
4. Doctrine of alternative danger: a reasonable choice in the agony of the moment is not contributory negligence.
5. Children are judged by the standard of their age.
6. Composite negligence: two or more defendants, one indivisible injury.
7. Khenyei v. New India Assurance Co. Ltd, (2015) 9 SCC 273: liability is joint and several; the claimant may recover the whole from any one; apportionment is between the tortfeasors.
8. Section 168 of the Motor Vehicles Act 1988 requires the Tribunal to award just compensation, and apportionment for the claimant's own negligence is made in fixing it.

Test yourself

1. What is contributory negligence, and what is its effect? Contributory negligence is a failure by the plaintiff to take the care that a reasonable person would take for his own safety, which contributes to the damage he suffers. He owes no duty to the defendant; the question is only whether he looked after himself. At common law it was a complete defence, which was harsh and was mitigated by the last opportunity rule, under which the party who had the last chance to avoid the accident bore the whole loss. The modern approach, applied by Indian courts and reflected in the assessment of just compensation under section 168 of the Motor Vehicles Act 1988, is apportionment: the court fixes the plaintiff's share of responsibility as a percentage and reduces his damages accordingly. A plaintiff who acts reasonably in an emergency created by the defendant is protected by the doctrine of alternative danger, and a child is judged by the standard of a child of that age.

2. Distinguish contributory negligence from composite negligence. Contributory negligence concerns the plaintiff's own carelessness, and its consequence is a reduction of his damages in proportion to his share of the fault. Composite negligence concerns the carelessness of two or more defendants whose combined conduct causes a single indivisible injury, and its consequence is that each of them is liable to the plaintiff for the whole. In Khenyei v. New India Assurance Co. Ltd, (2015) 9 SCC 273, the Supreme Court held that in composite negligence the liability of the wrongdoers to the claimant is joint and several, so that the claimant may recover the entire amount from any one of them and need not sue all or wait for the liability to be apportioned; apportionment is a matter for the tortfeasors among themselves and does not affect his right to full compensation. Both may occur in the same accident, in which case the total is first reduced for the plaintiff's share and the balance is recoverable in full from any of the defendants.

3. Explain the last opportunity rule and the doctrine of alternative danger. The last opportunity rule was a device to soften the old rule that contributory negligence was a complete defence: where both parties were negligent, the one who had the last opportunity of avoiding the accident was held liable for the whole of it, so that a plaintiff whose earlier carelessness was followed by the defendant's failure to avoid the consequences still recovered. It has largely been overtaken by apportionment, which achieves the same fairness more directly by dividing the responsibility. The doctrine of alternative danger, sometimes called the agony of the moment, provides that a plaintiff who is placed in a position of danger by the defendant's negligence and who takes a course that turns out badly is not to be held contributorily negligent if he acted reasonably in the emergency, because the law does not require perfect judgment from a person whom the defendant has put in peril.