Negligence is the omission to accomplish something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do[1]

The tort of negligence is one of the most common action in torts. It provides the plaintiff with a cause of action which leads to damages, or to relief, it protects the legal right of an individual including his property and his personal well being

The rule of law provides the defendant with various different defenses in cases involving the tort of negligence, one such defense is of ‘contributory negligence' which has evolved through the century of judicial precedents, various doctrines, and statues.

As observed by BALAKRISHNAN, J.:
negligence ordinarily means breach of a legal duty to care but when used in the expression contributory negligence it does not mean breach of any duty it only means failure by a person to use reasonable care for safety of either himself or his property.[2]

Contributory negligence doesn't only plays a significant role in absolving the defendant of his ability but also the assessment of damages. For a tort of negligence to be contributory in nature, it ought to be in the proximate cause of actual injury to qualify as contributory negligence. If the prima facie facts and evidence relating to the case show the plaintiff has contributed to injury by doing negligent act on his part (Novus actus interveniens), then he can't bring an action for recovery of damages.

But a distinction must be drawn between the condition and the actual causes, between causa sine qua and causa causans. A question must always be asked the act committed whether had a tendency which in the natural sense exposed him directly into a place where he ‘ll get injured if it had not the negligence on part of the plaintiff is considered as contributory in nature.

One who can see or could have seen if he had looked like a prudent man, and knows the danger to which he is exposed and has a knowledge of the whole scenario fails to act in a way a reasonable and prudent man will under certain circumstance results in negligence on his part and this result in defeat of claim of recovery from plaintiff notwithstanding the negligence done by defendant.

The Madhya Pradesh case of Vidya Devi contains an elaborate discussion why the principles of the English act should be followed in India even though there is no corresponding act in India.[3]

Elements of Contributory Negligence

For a certain tort to be constituted as contributory negligence there are certain requirements which are needed to be met, otherwise, any defendant could take the defense of contributory negligence citing that even if he was negligent the plaintiff could have saved himself, and that would lead to chaos and justice won't be served. Hence to have a legal system where there is no harassment of power certain elements are looked for in a case by the bench to come to a certain decision, the three broader rules which are meant to be proven by the defendant are:

1. Firstly, it must be shown that that the plaintiff was exposed to some unreasonable risk against which a reasonable person would take precautions.
    
2. Then it must be shown that the safety device in question is generally effective either in reducing the risk of an accident, or alternatively in reducing the damage that would normally result if that risk materialized.
    
3. Thirdly, it must be shown that the device was available to the plaintiff, but that the plaintiff did not make use of it.
    
4. Finally, it must be shown that the [plaintiff neglect in failing to use the device in fact caused the plaintiff injury to be worse or, put another way, that the device if used would would actually have prevented some of the resulting damage.

Causation of damage

If we look into cases involving contributory negligence in the majority of instances the negligence on plaintiff's part contributes to the accident which ultimately led to the injury for eg.- when driver or pedestrian fails to look in surrounding and be careful or if an employee gets injured while cleaning a machine because he was negligent in the act of not wearing safety device but this is not necessary to come to conclusion on whether a particular act was contributing to the negligence, the essential part actually is that the conduct of plaintiff contributed to his damage.

Thus, there may be a reduction in damages when the plaintiff doesn't wear a helmet while riding a motorcycle as held in O'connel v. Jackson[4], or when someone rides with an intoxicated driver having knowledge of his condition this was held in Owens vs Brimmel[5]. In Capps v. Miller (1989 (2) All-England Law Reports 333) also, the Court of Appeal dealt with a case of failure of the victim to fasten the strap of his crash 'helmet in a proper manner, It was held that contributory negligence was established.[6]

However, it is essential that that lack of care on plaintiff's part must be a factor which was contributory to his damage, which means not only that fault on his part is one of cause for his loss, but that the broad scope of the risk created by fault on his part included that loss.

Contributory negligence doesn't simply apply to roadways. In 2016, roughly 43% of Canadians went drifting, yet few consider the hazard they take thusly. The courts have held that as an offended party harmed in a drifting mishap, you can be found contributory negligent for neglecting to have your vessel lights turned on around evening time, not wearing a life jacket, and for being inebriated.

In Chamberland v Fleming "the Plaintiff suffocated when a speedboat overwhelmed the kayak he was working. The Plaintiff couldn't swim. 25% contributory negligence was distributed to the Plaintiff for failing to wear a life jacket."[7]

Duty of Care

Plaintiff have a duty to wear seat belts based on an analogy to the common tort law requirement that the plaintiff show that the defendant owed a duty to plaintiff.[8] In order to establish prima facie case, the plaintiff normally must establish that the defendant owed a duty to exercise reasonable care for the safety of the plaintiff.[9]

When courts require that defendants show that plaintiff have a duty to buckle up, however, courts are using the term duty in an unusual manner. When plaintiff fail to buckle their seat belts one, one could say that they have violated a duty only to themselves.[10] Speaking of a duty to oneself, however strains the meaning of the term. Duty is a term of relationship. A duty is something that one person owes to another. It would also be absurd to arrgue that plaintiff owes a duty to other drivers to wear seat belts so that other drivers will not be liable for as great an amount in damages if they injure the plaintiff.

The Reasonable Person

The question whether failure to use a seat belt is negligent can be analyzed under traditional negligence concepts. The standard of reasonable care requires one to act as an ordinary reasonable person, taking into consideration the burden of any available safety precaution, and the loss that one might suffer if one does not take a precaution.[11] As judged learned hand noted, negligence can be expressed in mathematical terms. One is negligent if one fails to take a precaution for which the burden of precaution is less than the foreseeable probability that injury will occur, times the loss that might occur if the safety precaution is not taken.[12]

In the seat belt context, the plaintiff is negligent under the hand formula if the burden of buckling and wearing a seat belt is less than the probability that the plaintiff will suffer injury due to the failure to wear a seat belt, times the injury that the plaintiff failure to wear a seat belt, times the injury that the plaintiff failure to wear a seat belt may cause. The probability that an automobile collision will occur is fairly small, but the loss that the plaintiff might suffer due to the failure to wear a seat belt is great and the burden of buckling a seat belt is quite small.[13]

The substantial reduction of the risk of injury that results from seat belt use is well established and well known. The U.S. department of transportation national highway traffic and safety administration recently evaluated and compiled data from three seat belt studies and concluded that when a person is in the front seat of death by forty- five to fifty-five percent.[14]

Other studies indicate that the use of a lap belt by a back seat passenger reduces the risk of death by 17 to 50 percent.[15] The importance of seat belt use has been highly publicized in buckle up for safety programs. Based on this substantial risk reduction, it is difficult to argue that a reasonable person will not make use of an available seat belt.

The Doctrine of Apportionment of Damages And Its Use In India

When the claimant is proven guilty of contributory negligence, there is a legislation in most of the world's common law to provide a method for damages to be apportioned. These kinds of legislations give out more leeway to the judges when they are trying to figure out the extent to which damages should be reduced over the defence of contributory negligence.[16]

When it came for legislation to provide a solution to the situation where there came a need to act against the plaintiff in cases where the plaintiff was at fault or the plaintiff showed signs of negligence in their actions, which resulted in their injury, The Law Reform (Contributory Negligence) Act 1945 was introduced. This kind of a legislation allowed reduction in the damages provided to the plaintiff if it is found that the plaintiff had a share in responsibility over the injuries they sustained and that if the act of the plaintiff was in part at fault for causing the injury. It is an important factor to keep in mind that in such kind of scenarios, the judge can't evade apportionment of the plaintiff on the grounds of the plaintiff being unaware of the extent to which their careless actions could exacerbate their injury sustained.[17]

One can observe the effects of contributory negligence in the real world in quaint circumstances, caused by the small things e.g. not wearing a seatbelt.

In Froom v. Butcher[18], certain norms regarding the role of seatbelts were suggested by Lord Denning, wherein he claimed for reduction of damages awarded by 15% if wearing the seatbelt would be a factor in reducing the severity of the injuries sustained, whereas if having the seatbelt on would have resulted in complete mitigation of the injury then there would be a 25% reduction in damages provided.

Another interesting factor that was explored was in Gregory v. Kelly[19], wherein it was the plaintiff's own reckless action of not only not wearing a seatbelt, but also knowingly driving with the faulty footbrake that resulted in the damages being awarded to him being reduced by 40%. However, if a case occurs where even if the plaintiff had worn his seatbelt would still have suffered injuries of the same level, then no reduction would occur. Therefore, when the principle of apportionment is taken into consideration where contributory negligence has occurred, the decision of reducing the damage and the extent to which the damage should be reduced rests upon the discretion of the judge, who considers all the factors at hand and makes a fair conclusion to the extent of the share of the plaintiff's own recklessness plays role in the case at hand.

However, it was contended by Beldam LJ in orbiter that a 100% contribution from the plaintiff's side would not exist as a grounds for a complete mitigation of damages, as when the factor of contributory negligence comes into effect, it does so on the foundation of a negligence on the part of the defendant, and completely impugning the defendant as the plaintiff is deemed to have contributed 100% to the cause of the injury exhausts the idea of negligence being applied in the first place.[20] Thus, one cannot apply a 100% contribution on the part of the plaintiff as that would destroy the purpose of the pre-supposed part of fault on the defendant, nor can it be contended that the plaintiff in some way, shape or form, shared the responsibility of the injury caused alongside the defendant, as that too would beat the concept of negligence itself.

Guidelines on Assessment of Compensation Under MV ACT 1988

The Supreme Court Bench headed by Chief Justice Dipak Mishra was hearing a reference made to the Bench in the case of National Insurance Company Ltd. v. Pushpa & Ors.[21] taking into account difference of assessment of the Supreme Court in the cases of Reshma Kumari & Ors. v. Madan Mohan[22] and Rajesh and Others v. Rajbir Singh and Others with reference to Sections 163A and 166 of the Motor Vehicles Act, 1988 (the Act) and the methodology of computation of future prospects.

The Supreme Court Bench headed by Chief Justice Dipak Mishra was hearing a reference made to the Bench on account of National Insurance Company Ltd. v. Pushpa and Ors. taking into account difference of assessment of the Supreme Court in the instances of Reshma Kumari and Ors v. Madan Mohan and Rajesh and Others v. Rajbir Singh and Others regarding Sections 163A and 166 of the Motor Vehicles Act, 1988 (the Act) and the system of calculation of future possibilities.

Guidelines Issued by the Supreme Court

Considering points of reference and difference of feeling regarding the issue, the Supreme Court for this situation controlled on the accompanying legitimate suggestions for calculating compensation under the Motor Vehicle Act, 1988.

Expansion of future possibilities to decide the multiplicand–The assurance of pay while registering compensation needs to incorporate future possibilities so that the method will come within the ambit and sweep of just compensation as postulated under Section 168 of the Act.

While deciding the income, an expansion of 50% of actual salary to the income of the deceased towards future possibilities, where the deceased had a changeless activity and was beneath the age of 40 years, ought to be made. The expansion ought to be 30%, if the age of the expired was between 40 to 50 years. On the off chance that the expired was between the age of 50 to 60 years, the expansion ought to be 15%. Genuine compensation ought to be perused as actual income less tax.

In case the deceased was independently employed or on a fixed pay, an expansion of 40% of established income should be the warrant where the deceased was underneath the age of 40 years. An expansion of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years ought to be viewed as the vital strategy for calculation. The established income means the income minus the tax component.

Where the deceased was married- the deduction towards individual and everyday costs of the deceased, ought to be one third where the number of dependent family members is 2 to 3, one-fourth where the number of dependent family members is 4 to 6, and one-fifth where the number of dependent family members surpasses six.

Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependent and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependent on the father.

Where the deceased was a bachelor and the claimants are the guardians, the deduction follows an alternate guideline. With respect to bachelors, ordinarily, half is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Further, subject to proof actually, the father is probably going to have his own income and won't be considered as a dependent and the mother alone will be considered as a dependent. Without proof despite what might be expected, brothers and sisters won't be considered as dependent, since they will either be independent and earning, or married, or be dependent on the father.

The selection of multiplier

The age of the deceased should be the basis for applying the multiplier.
Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses ought be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every 3 years.[23]

Conclusion
The law requires everyone to exercise such precautions as a man of ordinary prudence would observe. Therefore, the passenger should wear a safety gear where it is available. If the injuries sustained by the passenger could have been prevented to some extent by the wearing of a safety gear and the passenger has failed to do so, the Court will reduce the damages to be awarded. Nevertheless, it is for the Defendant to adduce evidence to prove on the balance of probabilities that had the safety gear been worn, the passenger would have suffered either no or less serious injuries. In appropriate cases, parties should obtain expert evidence on the safety gear issue.

Even in jurisdictions without safety legislation, the common law over the past two decades has been increasingly recognizing that failure to wear seat belts constitutes contributory contributory negligence. Tort law ought to do what it can to energize the utilization of safety belts. It has at its command the machinery for this purpose. It was held that failure to wear safety gear amounted to contributory negligence.

Cases:

• Alderson in Blythe v Birmingham Waterworks Co., [1856] 2 Exch. 781 [ 784........ 4
• Alderson in Blythe v Birmingham Waterworks Co., [1856] 2 Exch. 781 [ 784]....... 4
• Amend v. Bell, 89 Wash. 2d at 132, 570 p.2d at 143, states....... 8
• Capps v. Miller [1989] 2 All E.R. 333....... 10
• Chamberland v Fleming [1984] Alta D 3380-01 (QB)....... 7
• Dunn v. Durso, 219 N.J. Super. 383, 399, 530 A.2d 387, 395 (1986),....... 8
• Dunn v. Durso, 219 N.J. Super. 383, 400, 530 A.2d 387, 396 (1986)....... 9
• Froom v. Butcher [1976] QB 286....... 10
• Gregory v. Kelly [1978] RTR 426....... 10
• In Capps v. Miller (1989 (2) All-England Law Reports 333)....... 7
• National Insurance Company Ltd. v. Pushpa & Ors 2017 SCC OnLine Bom 6572. 12, 14
• O'connel v. jackson [1972] 1 Q. B. 270....... 6
• Owens v brimmel 1977 q b 859....... 6
• Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 344, 162 N.E. 99, 100 (1928)....... 8
• Pitts v. Hunt [1990] 3 WLR 542 at 547, CA....... 11
• Pramod Kumar Rasikbai Jhaveri v. Karmasey Kunvarg Tak ,AIR 2002 SC 2864, p. 2866 : (2002) 6 SCC....... 4
• Reshma Kumari & Ors. v. Madan Mohan....... 12
• United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947)....... 8
• Vidyadevi M.P. State Road transport Corporation, 1974 ACJ 374 (MP), p. 379: AIR 1975 MP 89.......5

Other Authorities

• Goudkamp J, Apportionment of Damages for Contributory Negligence: a Fixed or Discretionary Approach? (2015) 35 Legal Studies 621....... 10
• Rear Seat Occupant Protection 45 (1987)....... 9
• W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser And Keeton On The Law Of Torts 453 (5th Ed. 1984) [Hereinafter Prosser & Keeton]... 8
• U.S. Department Of Transportation, National Highway Traffic Safety Administration........ 9

End-Notes:

1. Alderson in Blythe v Birmingham Waterworks Co., [1856] 2 Exch. 781 [ 784]
2. Pramod Kumar Rasikbai Jhaveri v. Karmasey Kunvarg Tak ,AIR 2002 SC 2864, p. 2866 : (2002) 6 SCC
3. Vidyadevi M.P. State Road transport Corporation, 1974 ACJ 374 (MP), p. 379: AIR 1975 MP 89.
4. O'connel v. jackson [1972] 1 Q. B. 270
5. Owens v brimmel 1977 q b 859
6. In Capps v. Miller (1989 (2) All-England Law Reports 333)
7. Chamberland v Fleming [1984] Alta D 3380-01 (QB)
8. Amend v. Bell, 89 Wash. 2d at 132, 570 p.2d at 143,
9. Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 344, 162 N.E. 99, 100 (1928)
10. Dunn v. Durso, 219 N.J. Super. 383, 399, 530 A.2d 387, 395 (1986),
11. W. KEETON, D. DOBBS, R. KEETON & D. OWEN, PROSSER AND KEETON ON THE LAW OF TORTS 453 (5th ed. 1984) [hereinafter PROSSER & KEETON].
12. United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947).
13. Dunn v. Durso, 219 N.J. Super. 383, 400, 530 A.2d 387, 396 (1986).
14. U.S. DEPARTMENT OF TRANSPORTATION, NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION
15. REAR SEAT OCCUPANT PROTECTION 45 (1987).
16. Goudkamp J, Apportionment of Damages for Contributory Negligence: a Fixed or Discretionary Approach? (2015) 35 Legal Studies 621
17. Capps v. Miller [1989] 2 All E.R. 333
18. Froom v. Butcher [1976] QB 286
19. Gregory v. Kelly [1978] RTR 426
20. Pitts v. Hunt [1990] 3 WLR 542 at 547, CA
21. National Insurance Company Ltd. v. Pushpa & Ors 2017 SCC OnLine Bom 6572
22. Reshma Kumari & Ors. v. Madan Mohan
23. National Insurance Company Ltd. v. Pushpa & Ors 2017 SCC OnLine Bom 6572

Written By: Rahul Tomar, B.A, LL.B.(Hons)