The Last Opportunity Rule (How for Contributory Negligence is a Defence?)

At common law, contributory negligence was a complete defence, and the negligent plaintiff could not claim any compensation from the defendant (See Butterfield v Forrester). The courts modified the rule and introduced the so-called rule or ‘last opportunity’ or ‘last chance.’

The last opportunity rule may be stated as: “When an accident happens through the combined negligence of two persons, he alone is liable to the other who had the last opportunity of avoiding the accident by reasonable care”. The rule was applied in Davies v Mann (1882) 10 M&W 546; in that case, the plaintiff fettered the forefeet of his donkey and left it in a narrow highway. The defendant was driving his wagon too fast and the donkey was run over and killed. In spite of his own negligence the plaintiff was entitled to claim compensation because the defendant had the last opportunity to avoid the accident

In Rainey v L. & N 117Rtt; (1876) AC 759, the plaintiffs loaded a truck so high that it was obstructed by a bridge owned by them, but the defendant’s’ servant (an engine driver) gave momentum to the engine and tried to make it pass through the bridge without ascertaining the nature of the obstruction. The bridge was knocked down. In spite of negligence on the plaintiffs’ part in overloading the truck they were entitled to recover from the defendants because by an ordinary care the defendants could have averted the mischief.

The rule was further defined in the case of British Columbia Electric Co. v Loach (1916)1 AC 719, “a defendant who had not in fact the last opportunity to avoid the accident, will nevertheless be liable if he would have that opportunity but for his negligence” (‘Constructive Last Opportunity’). The rule of last opportunity also was very unsatisfactory because the party whose act of negligence was earlier altogether escaped the responsibility. The law was changed in England. The Law Reform (Contributory Negligence) Act, 1945 provides that when both parties are negligent and they have contributed to some damage the damage will be apportioned as between them according to the degree of their fault.

The same is considered to be the position in India as well. The Kerala Tons (Miscellaneous Provisions) Act, 1976 contains provisions for apportionment of liability in case of contributory negligence (Sec. 8). In India, contributory negligence has been considered as a defence to the extent the plaintiff is at fault. Thus, if in an accident the plaintiff is as much at fault as the defendant the compensation to which he would otherwise be entitled will be reduced by 50%. In a recent Australian case, March VE & MIL Stramare Pty. Ltd. (1991) 65 ALJ 334, it was held that “the end result of apportionment legislation is to abolish not only the defence of contributory negligence but also the last opportunity rule.”

Theories of Contributory Negligence

Various theories have been advanced by jurists as to the ‘basic principle’ of contributory negligence: Penal theory (a negligent person should be punished severely and not to be permitted to recover damages); Public policy; Joint tortfeasor’s principle; Volenti non fit injuria; and, Causation. The causation theory seems to be the best one to explain the basic principle of contributory negligence. It is negligence which ‘contributes to cause’ the injury. The question, as in all questions of liability for a tortious act, is not, who had the last opportunity of avoiding the mischief, but whose act caused the wrong (Boy Andrews v St. Roguvald (1947) 2 All ER 350).

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