CONTRIBUTORY NEGLIGENCE

• Date: 24 January 2019

(1) "Contributory negligence means that the party charged is primarily liable but that the party charging him has "contributed" by his negligence to what had eventually happened. In Butterfield v. Forrester (1809) 11 East 60 at p.1116, Ellenborough, C.J. described the principle of contributory negligence in clear and simple language as follows: - "A party is not to cast himself upon an obstruction which has been made by the fault of another, and avail himself of it, if he do not himself use common and ordinary caution to be in the right.... One person being in fault will not dispense with another’s using ordinary care for himself. Two things must concur to support this action, an obstruction in the road by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff". Since 1909 the principles of contributory negligence have recognised many modifications but the essential characteristic remains the same, i.e. the party charged must be primarily liable for the negligence that caused the damage or injury... " In the case in hand, the learned trial Judge having found that the plaintiff was at blame for the accident and injuries to himself, had thereafter sought to make the defendant a contributory to the fault of the plaintiff. This course obviously fails to take account of the onus of proof in the case for the onus of proving contributory negligence is always on the defendant. See: Hicks v. British Transport Commission (1958) 1 W.L.R. 493. In Stapley v. Gypsum Mines Ltd. (1953) A.C. 663, the Privy Council extensively considered the principles on which the doctrine of contributory negligence is founded. They are indeed principles based upon the application of common sense to the simple fact of life facts which reveal the action of a person who although he was not primarily responsible for an accident had, by his own conduct, created a situation which favoured a cause of the accident which had occurred. In Stapley’s case, Lord Asquith admirably summarised these principles thus at p. 687 of the Reports: - "Courts of law must accept the fact that the philosophic doctrine of causation and the juridical doctrine of responsibility for the consequences of a negligent act diverge......... The whole modern doctrine of contributory negligence, however, proceeds on the contrary assumption. If not, there would be no question of apportionment. But the fission between law and strict logic goes deeper than that. For I am...