The rule of Last Opportunity means that he who had last opportunity of avoiding the accident, notwithstanding the negligence of the other, is solely responsible. The rule of last opportunity may be explained in the following manner :
Although the plaintiff is guilty of negligence, yet if the defendant could in the result, by use of ordinary care and diligence have avoided the mischief which happened, the plaintiff’s negligence will not excuse him. This principle applies where the defendant, although not committing any negligent act subsequently to the plaintiff’s negligence, has incapacitated himself by his previous negligence from exercising such care as would have avoided the result of the plaintiff’s negligence. Where the direct and immediate cause of damage is clearly proved to be the fault of the defendant, contributory negligence by the plaintiff cannot be established merely by showing that if the plaintiff had acted in a certain way, a different situation would have resulted, in which the same mischief might not have occured.
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The rule of last opportunity was laid down in Davies v. Mann. In this case the plaintiff turned out his ass loose in a highway with its forefeet fettered and it was run over by the defendant’s wagon, going at a smartish pace. The Court held that the driver’s negligence was the proximate or immediate cause, as he was bound to go along at such a pace as would be likely to prevent mischief, because the donkey which was left with its forefeet fettered in a public highway 8 yards wide was grazing on a side of the road and when the defendant’s wagon and horse coming down a slight descent at a smart pace ran against it and hurt it, the driver of the wagon was some distance behind the horses. it was, therefore, held that the defendant was liable, notwithstanding that the accident would not have happened but for the contributory negligence of the plaintiff on the ground that the defendant had sufficient opportunity of avoiding by the use of reasonable care the danger so created by the plaintiff’s negligence. It was, remarked, “Although the ass may have been wrongfully there still the defendant was bound to go along the road at such a pace as would be likely to prevent mischief. Where this is not so, a man might justify the driving over goods left on a public highway, or even over a man lying asleep there, or the purposely running against a carriage going on the wrong side of the road.”
The problem of last opportunity was nearly raised and negative by the Court of Appeal in a case of land collision. The defendant’s motor car having run out of petrol at night, he left it where it stood on the road without lights although he could have pushed it, with assistance, on to the grass verge of the road, or into the opening of a nearby lane. Later that night the plaintiff’s husband who was riding a motor cycle, ran into the car and was killed. The Court of Appeal held that the defendant was liable being the sole author of his misfortune and he was found guilty of negligence in failing to place his car in a safe position and his negligence was deemed to have been continued up to the moment of the accident.
When contributory negligence is set up a defence, its existence does not depend upon any duty owed by the injured party to the party sued and all that is necessary to establish such a defence is to prove to the satisfaction of the jury that the injured party did not in his own interests take reasonable care of himself and contributed, by his want of care to his injury. For when contributory negligence is set up as a shield against the obligation to satisfy the whole of the plaintiff’s claim, the principle involved is that where a man is part author of his own injury, he cannot call on the other party to compensate in full. This however is not to say in all cases the plaintiff who is guilty of contributory negligence owes to the defendant no duty to act carefully.
Limitations to the rule of last opportunity
The rule in Davies v. Mann (the doctrine of last opportunity) does not state the whole truth: it is not an absolute rule and is subject to several qualifications some of which may be noted as below:
(i) A last opportunity which the defendant would have but for his own negligence is equivalent in law to one which he actually had.
(ii) Where the defendant alone actually knows of danger, and fails to use due care to avoid it, he is liable, even to a negligent plaintiff who had in fact, the last opportunity. This is still another-qualification in favour of the negligent plaintiff. For example, the driver of a tram-car sees a foot-passenger crossing the street in front of the car, and obviously inattentive and obvious of danger. There is still time to stop the car. The driver, however takes no action and leaves the dreamer to look after himself. If he run down, the owners of the tramway will be liable; yet the late opportunity was with the plaintiff. He could have stopped and kept off the route at the last moment when the driver could no longer have stopped the car. In such cases the plaintiff’s negligence does not in a legal sense contribute to or cause the accident. It is not, properly speaking, contributory negligence at all.
(iii) There must be a sufficient separation of time, place or circumstances between the acts of negligence to enable the court to hold that there was such a last opportunity as will prevent the act of negligence from being treated as contemporaneous.
But that is the test of sufficiency? It is difficult to imagine the smaller separation of time, place or circumstance between two successive acts of negligence than there was in Loach’s case in which the Privy Council nevertheless adopted and applied the rule of the last opportunity. It would be seen on principle and authority that the only separation required as between successive facts of negligence by the rule in Davies v. Mann is a separation sufficient to justify the conclusion that the person who was last negligent had in reality a clear later opportunity of avoiding by due care the danger created by the prior negligence of the other.