Contributory and Composite Negligence

In one line

Contributory negligence is the plaintiff's own carelessness, which reduces his damages; composite negligence is the carelessness of two or more defendants, which gives the plaintiff the whole sum from any of them.

In the wording a student can write in an exam: contributory negligence is a want of reasonable care by the plaintiff for his own safety which contributes to the damage he suffers, and under the modern law it does not defeat the claim but reduces the damages in proportion to his share of the responsibility; composite negligence arises where the injury is caused by the negligence of two or more persons, and the liability of each to the injured person is joint and several, so that he may recover the whole amount from any one of them, apportionment being a matter between the wrongdoers.

Contributory negligence

What it is. The plaintiff failed to take the care a reasonable person would take for his own safety, and that failure contributed to his damage. He need owe no duty to anybody; the question is whether he looked after himself.

The old rule and the modern one. At common law contributory negligence was a complete defence, which produced harsh results, and it was mitigated by the last opportunity rule: the party who had the last opportunity of avoiding the accident was liable for the whole of it. The modern approach, which Indian courts apply and which the assessment of just compensation under section 168 of the Motor Vehicles Act 1988 requires, is apportionment: the court fixes the plaintiff's share of the responsibility as a percentage and reduces the damages by it.

The doctrine of alternative danger. A plaintiff who is put in a position of danger by the defendant's negligence, and takes a course that turns out badly, is not contributorily negligent if he acted reasonably in the agony of the moment.

Children and contributory negligence. A child is judged by the standard of a child of that age, and very young children are not capable of contributory negligence at all.

Composite negligence

What it is. Two or more persons are each negligent, and their combined negligence causes a single indivisible injury to the plaintiff.

Facts. Khenyei v. New India Assurance Co. Ltd, (2015) 9 SCC 273, decided on 7 May 2015. The claimant was injured in an accident caused by the composite negligence of the drivers of a trailer-truck and of a bus, and the question was whether he could recover the whole compensation from one of them and how liability was to be apportioned.

Held. In a case of composite negligence the liability of each wrongdoer to the claimant is joint and several. The claimant may recover the whole amount from any one of them, and he is not required to sue all of them or to have the liability apportioned between them before he is paid. Apportionment as between the tortfeasors is a matter for them, by contribution among themselves, and does not affect the claimant's right to full compensation from any one.