The term 'negligence' applies to mere carelessness in daily usage. Legally, it means failure to exercise the level of care that should have been exercised in the circumstances by the doer as a fair individual. There is a moral obligation in general to be vigilant because it was fairly probable that failure to do so was likely to cause injury. Negligence is a mode where several types of harms can occur by not taking such adequate and prescribed measures. In general, negligence is the omission to perform a duty which results in the plaintiff’s injury(1) . Negligence is committed in respect of both person and property. Negligence is a common term which we come across in our daily life , every prudent person is expected to exhibit a duty of care towards other person ,so that their actions do not result in the injury or loss of the other person.
The concept of duty of care was first established in the landmark case of Donoghue V. Stevenson 1932 A.C. 562. (2) During the instant event, when she drank the ginger beer in which she found the remains of a decomposed snail, the complainant suffered from gastroenteritis (intestinal infection) The defendant had invented the ginger beer. The defendant was held to have ignored his duty to take care which caused the plaintiff to suffer injuries. In the said case Lord Atkin has restructured the concept of duty of treatment. According to him, one should always take appropriate measures to avoid omitting an act whose effects are likely to harm your neighbour.The essentials of negligence were established in the case of Philips India ltd.v. Kunju Punnu(1974 B.L.R.337)3 in which the court laid down following conditions- Legal obligation to take ordinary care towards the plaintiff
Ignorance of such duty A direct connection between the act and the damages sustained In the case of negligence the burden of proof lies on the plaintiff, he must prove that the accused has a duty of care towards him and there was a breach of that duty , except in certain cases of Res Ipsa Loquitur where the prima facie evidences speak for themselves.
The concept of contributory negligence arises when the accused and the plaintiff both fail to adhere to take due care and as a result of this damage arises. Contributory negligence is defined as the plaintiff's failure to exercise reasonable care for their safety(4) . Contributory negligence can bar recovery or reduce the amount of compensation a plaintiff receives if their actions increased the likelihood that an incident occurred. Often, defendants use contributory negligence as a defense. Contributory negligence works on the principle of “ Volenti non fit injuria” which means that In the law of Negligence , the precept that denotes that a person who knows and comprehends the peril and voluntarily exposes himself or herself to it, although not negligent in doing so, is regarded as engaging in an ASSUMPTION OF THE RISK and is precluded from a recovery for an injury ensuing therefrom. The principles laid down for establishment of contributory negligence are-
1.Unless the defendant himself neglects to take proper care to prevent repercussions and is the primary cause of the claim, he is not entitled to any compensation.
2.When both the plaintiff and the defendant have taken fair action and ordinary precaution to the degree that they all wished to prevent these repercussions, so the defendant can not sue.
In the cases of contributory negligence the burden of proof lies on the defendant , he is liable to establish that the plaintiff also had certain duty of care which he failed to perform leading to the negligent act.
In the case of Mohan Lal v. Balwant Kaur , 1 (1985) AC 322( 5) , held that the joint tortfeasors are jointly liable in the accident cases for the negligence, can be made liable jointly and severally .
In the case ofHansraj v. Tram CO., 35 Bom.478, (6)A attempted to board a moving tramcar and end up getting injured. He sued the company. It was held that if he would have boarded in a tramcar, not in motion, it would have been easier for him to get a firm grip in the handlebar and settle down easily. The company was not held liable. Contributory negligence is a tool most often adapted by the accused to escape from the liabilities arising from the case of negligence and to avoid those liabilities such as payment of fines and it is proved to be the best defense in such cases but in certain cases this defense could not be taken such as in the case of Butterfield v. Forrester,( 7) (1809) 11 east 60 ,In the instant case due to the ignorance of the plaintiff in order to take due care while driving, he met with a collision with the pole which was wrongfully obstructed by the defendant. So without considering the negligence of the defendant, the plaintiff could have avoided the accident.
This can be argued that contributory negligence is the protection open to the defendant that inhibits or prohibits the plaintiff from seeking compensation or incentives. To take due care to prevent the error of others is the avoidance of an act or indifference. The burden of evidence in the event of contributory negligence rests with the defendant. There are circumstances under which the defense of contributory negligence does not apply , hence like every right and law the law of contributory negligence also comes with certain rules and restrictions.