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Contributory Negligence- The Last Opportunity Rule

“Res ipsa loquitur”

Things speak for themselves.


The above-mentioned maxim means that in a tort lawsuit a court can infer negligence from the very nature of an accident or injury in the absence of direct evidence on how any defendant behaved.

In general, the term negligence means “mere carelessness”. The person who is filing a suit is called a ‘plaintiff’ and the person against whom it has been filed is called a ‘defendant’. To call an act as an act of negligence the following three conditions must have been fulfilled and the plaintiff must be able to prove the same in the Court of Law.

  1. The defendant owed a duty of care to the plaintiff,
  2. The defendant has made a breach of duty, and
  3. The plaintiff should have suffered some kind of damage.

The above discussed rules and essential things are when the negligence is caused entirely by one person only. The concept of Contributory Negligence is when both the plaintiff and the defendant were equally careless.

Contributory Negligence can be defined as “negligence in not avoiding consequences arising from the negligence of some other person, when means and opportunities are afforded to do so.”


This Latin Maxim can be put to use only on the fulfilment of certain essential conditions. The event or the accident must be of a kind which does not happen in the ordinary course of things, had those who have the management and control ensured due care. Also, the event which has caused the accident should be within the defendant’s control.


Davies v Mann[1], an English case law, popularly known as the “Donkey case” was the first ever suit to have arrived at a conclusion giving rise to a new concept called the “Last Opportunity Rule” and added it to the existing Negligence Laws. In the facts of the case, the plaintiff had tied the forefeet of his donkey and left it unattended on the highway in a negligent manner. The defendant driving a wagon was completely aware that the donkey’s legs were tied together and was left unattended. In spite of knowing it, he drove his wagon in a negligent manner, causing an accident in which the donkey died, unfortunately. When a suit was filed by the plaintiff saying the defendant drove his wagon negligently, the plaintiff was questioned on why the donkey was left unattended with its legs tied together and that too on the highway. The concept of “Last Opportunity Rule” was created and made use of in this case. The burden of proof falls on the defendant and if proved the plaintiff is not entitled to the entire amount of damages as such.


(a) Penal Theory: A person who has once been negligent should be punished severely for his fault and should not be permitted to recover damages. In pari delicto potior est conditio defendentis means that where both parties are equally at fault, the condition of the defendant is the best.

(b) Public Policy: In order to induce self-vigilance amongst members of the public and thereby minimise accidents on the highway, courts were inclined to give stress on this principle of contributory negligence.

(c) Principle applicable to Joint Tortfeasors: Both the plaintiff and the defendant should be considered as joint tortfeasors and neither of them should be awarded any damages.

(d) Volenti non fit injuria: “The defence of contributory negligence confesses and avoids a prima facie liability; it includes the idea of deliberation and relies upon the failure of the plaintiff to exercise reasonable care. On the defence of volenti non fit injuria, viz., that the plaintiff has willed to run the risk, none of these statements is true.” (SALMOND)

(e) Causation: Causa causans is the immediate cause, the last link of the chain of causation; it is to distinguish from causa sine qua non, which means some preceding link but for which the causa causans could not have become operative.[2]


The Law Reforms (Contributory Negligence) Act, 1945 is an English Law which has been enacted and is in force in the United Kingdom. Since India was also colonised by the British people, the Indian Judiciary was well aware of this concept. In spite of being aware of the “Last Opportunity Rule” it is not written or included in any of the existing laws in the country. However, this rule has not been neglected completely; it was used on many occurrences where the negligence of the plaintiff was proved by the defendant.  For example, in this case, Union of India v. Supriya Ghosh[3]The deceased was passing through a railway level-crossing in his car at about 8:45 PM. The car was knocked down by a mail train and the deceased was seriously injured and later died. The level-crossing was a manned one with gates. But at the time the deceased tried crossing it, the gates were open and the gateman was not present. It was contended by the defendant saying that the deceased was negligent and didn’t notice the headlights of the train or the lights in the compartment.  The deceased was focusing on driving and didn’t notice the lights, if only he had, he would not have crossed the track in the first place, so the contention was rejected saying there was gross negligence on part of the railway administration and as such it was liable to compensate the plaintiffs’ respondents.[4]


What happens when such negligent acts are committed by children? In that case, if the plaintiff is a child or falls under some form of personal incapacity, it is sufficient if he shows as much as a person of that age may reasonably be expected to show. In Donovan v. Union Cartage Co[5]., when a 7-year-old climbed on to an unattended unhorsed van, fell down and suffered injuries, the defendants were not held liable.

The Last Opportunity Rule is being applied in a reasonable manner in India but it would be better and much easier to enforce when it is put into words, enacted as a law for the betterment of the people.

[1]  (1842) 18 M&W 546.

[2] P.S.A. PILLAI, LAW OF TORT 228-30 (19th ed. 2011)

[3] AIR 1973 Pat 129.

[4] Ibid at p. 224.

[5] (1993) 2 KB 71.

Cite this article (The Bluebook 20th ed.)-

Gharishma Bashyam, Contributory Negligence- The Last Opportunity Rule, Ex Gratia Law Journal, (September 15, 2020),

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Gharishma Bashyam
Student - School of Excellence in Law, The Tamil Nadu Dr. Ambedkar Law University.