Facts
- Negligence
- On 29.7.2003, all the claimants were travelling in Bus No. NL−06/B/0027. At the relevant point of time, the Trailor truck was carrying iron beams and coming from the opposite direction and one iron beam came out of the body of the truck and this iron beam perforated right side of the body of the bus causing grievous injuries to a good number of passenger including the claimant.
- Accordingly, the injured persons filed the claim cases alleging that the driver of the Trailor−Truck was responsible for the aforesaid accident.
- It was specifically averred that the driver of the truck drove the vehicle in a rash and negligent manner. Besides this, as per the claim cases after investigation charge−sheet was also filed against the driver of the trailer truck.
- Trailor truck – 2/3rd compensation
- Bus – 1/3rd – New India assurance co ltd
- Unliquidated damages
| Contributory negligence | Composite negligence |
| On part of his and other | On part of two or more persons |
| Damages is not defeated for the fact that he was also negligence in his part | Jointly and severally liable |
| Damages recoverable by him will be reduced in proportion to his contributory negligence | Need not to establish of responsibility of each wrong does separately |
Principles
- Defense in contributory negligence
- Law of Torts − Winfield & Jolowicz
- Proportionate liability − bear only his share of liability
- Easiest target
- Concept of composite negligence − Pollock
- “In pari delicto potior est conditio defendatis”
- If both parties are equally to blame, the condition of defendant is to be preferred Rule of last opportunity
- How far is contributory negligence a defense
- Butterfield V. Forrester (109) 11 East 60
- Last opportunity to avoid the incident
- Liability for negligence
- Law reform ( contributory negligence ) Act 1945 − English legislation
- Just and equitable having regard to the claimant’s share in the responsibility for the damage
- Independent tortfeasors − a person who commits a civil trespass
- Joint tortfeasors − two or more person commits a civil trespass
- Cause of action against each of them is the same
- Jointly liable
- Agency
- Vicarious liability
- Where a tort is committed in the course of a joint act, whilst pursuing a common purposed agreed between them
- Claimant has right to recover the compensation from both or any one of them .
Judgment
- In such case, the liability is always joint and several. The extent of negligence of joint tortfeasors in such a case is immaterial for satisfaction of the claim of the plaintiff/claimant and need not be determined by the court.
- The liability of each and every joint tortfeasor vis a vis to plaintiff/claimant cannot be bifurcated as it is joint and several liability.
In the case of composite negligence, apportionment of compensation between tortfeasors for making payment to the plaintiff is not permissible as the plaintiff/claimant has the right to recover the entire amount from the easiest targets/solvent defendant.
