When is contributory Negligence not considered a Defence?

Plaintiff’s right to rely on the duty of care of others

There are certain circumstances when the plaintiff is entitled to asusme the absence of danger and he is not bound to anticipate and take precaution against the possible negligence of the defendant. Contributory negligence is no defence when the plaintiff suffers due to
the defendant’s neglect of duty.

Gee v. Metropolitan Rly Co.-In this case the plaintiff, in company with his brother, was travelling by an underground railway. While the train was in motion he got up for the purpose of looking out of his window, in order to point out some object to his brother and placed his hand against a bar which went across the carriage window, when the door immediately flew open and he fell out and was injured. It was held that the plaintiff could recover, although he could easily have avoided the accident by the simple precaution of examining the poor handle, for he was not bound to take that precaution but was entitled to assume that the company’s servants had done their duty by fastening the door.

“The rule of law is that if there is blame causing the accident on both sides, however small that blame may be on one side the loss lies where it fails.” This statement had laid down in the case of Cayzer Irvine & Co. v. Carran Co., by the Lord Blackburn for the contributory negligence how far it is defence.

Liability of Carriers of Passengers: Carriers of passengers by any sort of carriage or conveyance owe to the passengers a duty to take reasonable care to carry them safely. This duty arise not from contract but from the fact that the passenger is being carried with knowledge and consent of the carriers; and it applied whether carriage is gratuitous or for reward, but not if the passenger is a moere trespasser.

The railway company pleaded contributory negligence. The accident was attributable to the plaintiff’s contributory negligence, in sitting with his elbow projecting out of the window-still carelessly which he may have known as a dangerous practice and likely to collide against another train or its open door if it would pass. Moreover, the plaintiff must be taken to have seen the other train coming and that it would pass and as such he should have withdrawn his hand inside the window. The plaintiff, therefore, was strentching his arm outside the compartment at his own risk; and as such there was contributory negligence on the part of the plaintiff and he would not be entitled to recover damages, although the Court though there was evidence of negligence in the part of the railway company.

A common carrier, at Common law, is an insurer of goods committed to his charge and is responsible for their safe transport and delivery. In case of loss or injury, therefore, as a rule, liable though there have been no negligence on his part. Railway companies stand the ordinary footing of common carriers in regard to their liability for the carriage of passengers.

Mere anxiety on the part of a passenger, namely, the plaintiff, to catch the train cannot amount to contributory negligence or carelessness. The real question is whether the plaintiff had failed to use reasonable care while proceeding to catch the train.

In East India Railway Company v. Kalidas Mukherji, where a passenger was killed in railway carriage by an explosive illegally introduced into it, it was held that the railway company was not liable for damages unless guilty of negligence for permitting the fireworks to be brought into the carriage. As it was not the duty of the company searching every parcel carried by a passenger, the onus was on the plaintiff to show that the parcels containing the firework suggested danger.

In Green v. Chelsea Borough Council: This case is landmark in the law of negligence, because it went to the extent on laying down that even the requisitioning authorities ovc a duty of care in respect of the requisitioned premises to the occupant of such pemises. Under the Defence (General) Regulations, 1939 the defendant requisitioned a house and allotted a portion of it to the husband of the plaintiff. The plaintiff, on behalf of the husband signed the agreement of payment of weekly rent and was recorded as the occupier. The plaintiff complained to the defendant that there was a crack and a bulge in the ceiling of the kitchen. An enquiry was made, and everything was found within “all right”, and nothing was done. Six months later part of the ceiling fell on the plaintiff and injured her. It was held: (i) The defendant’s agreement with the plaintiff’s husband was not for a tenancy of the rooms but merely for a licence to the whole family to use them.

(ii) The defendant’s remained in possession of the rooms as requisitioning authority, and being responsible for repairs, owed a duty of care towards all the members of the family as licensees.

(iii) The defendants having failed after warning to remedy the danger from the state of the ceiling, they were guilty of negligence and liable for branch of duty to the plaintiff.

In Slade v. Battersea and Putney Group Hospital Management Committee: The plaintiff a lady aged sixty-seven years whose husband was a patient under the National Health Service in a State hospital for which the defendants were under legal liability, had been notified that her husband was dangerously ill and had been given permission by the hospital authority to visit him at any time. When she was leaving the- hospital after visiting him, she slipped and fell on a part of the floor of the ward where polish had recently been spread. The polish had not been polished off at the time of accident and its presence rendered that part of the floor slippery and dangerous to walk on. It was a rule of the hospital that warning should be given if polishing was in progress, but no warning was given to the plaintiff on this occasion, though she had been warned on previous occasions. She did not know that the polish was spread on the floor. She sued the defendants for damages for the injuries received by her as a result of her fall. It was held, the defendants were liable for breach of duty to plaintiff because (i) she was an invitee, as she was in a State hospital visiting by the permission of the hospital authority. Whether the plaintiff was an invitee or licensee, the slippery state of the floor of the ward was caused by a current operation, viz., polishing, and the defendants were liable for negligence in that the plaintiff was not warned of the polish being on the floor. Accordingly, the plaintiff was entitled to recover damages.

In Bradford v. Robinson Rentals, Ltd., The plaintiff was employed by the defendant as a radio engineer. He travelled over his area in motor van and his normal daily work involved frequent stops at customers’ houses and intervals spent in maintenance service in them. He was sent on a long journey to change a colleague’s old van by the defendant when to his knowledge the weather was likely to be very severe. The plaintiff expressed the view that the journey was hazardous and ought not to be undertaken by him. He was nevertheless instructed to go. As a result of cold on the journey and despite precautions taken by the plaintiff he suffered injury by forstbite, which was unusual in England.

It was held that the plaintiff had been called on to carry out an unusual task that would be likely to expose him to extreme cold and considerable fatigue and the injury suffered by the plaintiff was foreseeable. Hence the defendants were held liable to the plaintiff.

In the case of Pujamma v. Rajendra Naidu, Madras High court laid down that ‘A lorry was going left side of the road and another lorry came wrong side and collapsed. Court said that second lorry which was coming wrong side was guilty of contributory negligence. So it is not the matter of composite negligence.

Liability of banks in paying customer’s cheque : Where a banker negligently makes payment of a cheque on which the customer’s signature is forged or the sum altered, it cannot charge the customer’s account unless it can be shown that customer was also negligent and the payment slipped through because of the customer’s negligence.

Contributory negligence and illegality: Illegality is an obscure area of torts. The plaintiff may not be barred from suing because he was engaged in criminal conduct when the tort was committed against him; nevertheless, it was understood to be right to deny the existence of any duty of care between two robbers escaping in a car from the scene of the crime.

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