Contributory negligence may be defined as negligence in not avoiding the consequences arising from the negligence of some other person, when means and opportunity are afforded to do so.
Contributory negligence does not depend on the breach of any duty as between the plaintiff and the defendant, but it depends entirely on the question whether the plaintiff could have reasonably avoided the consequences of the defendant’s negligence. If contributory negligence is alleged against the plaintiff it must be proved that the plaintiff had knowledge of the existing danger or of the defendant’s negligence and that the plaintiff could have reasonably avoided such negligence or danger. This exposition of the law of contributory negligence considerably modifies Sir John Salmond’s dictum that the defence of contributory negligence cannot succeed unless it is provided that the plaintiff was under a legal duty to take care for his own safety.
Also Read Remedies available to the persons wronged in a Tort of Nuisance
Also Read Defences which a defendant in an Action for Nuisance may take up
Also Read Is malice relevant in Nuisance?
Also Read Nuisance is a continuing wrong, temporary or isolated acts do not constitute tort of nuisance
The doctrine of contributory negligence “rests upon the view that the defendant has in fact been negligent, yet the plaintiff has by his own carelessness severed the casual connection between the defendant’s negligence and the accident which has occurred; and that the defendant’s negligence is accordingly not the true proximate cause of the injury – “Per Bowen, L.J. in Thomas v. Quarter Maine. The doctrine is founded upon the maxim “injure non remota causa sed proxima spectatur” (the law takes into consideration only the proximate cause and not the remote one). The law takes into consideration any act or conduct of the party injured or wronged which may have immediately contributed to that result.
Rule of contributory negligence: It was the common law rule that anyone who by his own negligence contributed to the injury of which he complains cannot maintain an action against another in respect of it. For he will be considered in law to be author of his wrong. This rule was laid down in Butterfield v. Forrester. In this case the defendant had put a pole across a public thoroughfare in Durby, which he had no right to do. The plaintiff was riding that way at 8 O’clock in the evening in August, when dusk was coming on, but the obstruction was still visible from a distance of a hundred yards; he was riding violently, came against the pole, was overthrown by the pole, and fell with the horse. It was held that the plaintiff could not recover because in the words of Bayley, J. if he had used ordinary care he must have seen the obstruction so that the accident appeared to happen entirely from his own fault. The common law rule laid down in this case was criticised as illogical, and now the courts made modification of the rule. This modified rule was called the ‘rule of last opportunity’ by John Salmond, for the first time.