CONTRIBUTORY AND COMPOSITE NEGLIGENCE – ENGLISH AND INDIAN PERSPECTIVE
Maharashtra National Law University, Mumbai
When the plaintiff by their own lack of want of care contributes to the damage caused by the negligence or wrongful conduct of the defendant, they are considered to be guilty of contributory negligence. It is a defense in which the defendant has to prove that the plaintiff failed to take reasonable care of their own safety and that was a contributing factor to the harm ultimately suffered by the plaintiff. For example, if A, going on the wrong side of the road, is hit by a vehicle coming from the opposite direction and driven rashly by B, A can be met with the defense of contributory negligence on their part.
Whereas, when the negligence of two or more persons results in the same damage, there is said to be “Composite Negligence” and the persons responsible for causing such damage are known as “Composite Tortfeasors.” In England, such tortfeasors could be classified into two categories joint tortfeasors and independent tortfeasors, and there were different rules governing the liability of these two categories of tortfeasors. The liability of these two categories of persons has been made somewhat similar through legislation, i.e., the Law Reform (Married Women and Tortfeasors) Act, 1935 and Civil Liability (Contribution) Act, 1978.
The Courts in India have not necessarily followed the English Law, and they have adopted the rules which are in consonance with justice, equity and good conscience, according to Indian conditions. Unlike in England, the distinction between joint tortfeasors and independent tortfeasors in not of much relevance in India, because the rules in India being different, the question of such a distinction has seldom arisen. For this reason, the term “Composite Negligence” has been used to cover cases whether they are of negligence by joint tortfeasors or independent tortfeasors. Sometimes, the courts have been unmindful of the fact that the terms joint tortfeasors and independent tortfeasors have different connotations, the term composite or joint confessors has been used to connote a situation, which is in fact one of independent tortfeasors.
In India, there is no Central Legislation corresponding to the Law Reform (Contributory Negligence) Act, 1945 of England. The position brought about by the Law Reform Act in England is very just and equitable. Section 1 of the Act provides as follows:
“Where any person suffers damage the result partly of his own fault and partly of the result of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.”
Thus, if in an accident, the plaintiff is as much at fault as the defendant, the compensation to which he would otherwise be entitled will be reduced by 50 per cent.
The Kerala Legislature has taken a lead by passing The Kerala Torts (Miscellaneous Provisions) Act, 1976. Sec. 8 of the Act makes provision for apportionment of liability in case of contributory negligence. The provision is similar to the one contained in the English Law Reform Act of 1945. In various cases which have come before various High Courts in India, the doctrine of apportionment of damages, on the lines of the Law Reform Act has been followed and contributory negligence has been considered as a defense to the extent the plaintiff is at fault. Pairing the same with the Last Opportunity Rule, there can be appropriate apportionment of damages as far as the faults of each of the tortfeasors go.
The liability of the composite tortfeasors is joint and several. No one out of the tortfeasors is allowed to say that there should be apportionment and their liability should be limited to the extent they are at fault. The judgment against the composite tortfeasors is for a single sum without any apportionment in accordance with the fault of various tortfeasors, and the plaintiff can enforce the whole of their claim against any one of the defendants, if they so choose. The defendant, who has paid more than their share of the liability, may claim contribution from the other defendants.
The High Courts of Madhya Pradesh, Madras, Mysore, Punjab & Haryana, Orissa, Gujarat, Rajasthan, Guwahati, and Karnataka, have expressed their opinions in favor of non-appointment of damages between various composite tortfeasors, with discretion to the plaintiff to enforce the whole of his claim against any of the tortfeasors. This is also in consonance with the joint and several liability of the various tortfeasors.
Hence, there are various exploratory avenues when it comes to the tort of negligence. As newer situations arise, more and more unique forms of assessment are bound to be derived from this one tort itself.