Law of Torts
Composite Negligence, Contributory Negligence and Apportionment: What a Claimant Recovers, and From Whom
Two doctrines are constantly run together, and the confusion costs claimants money. Composite negligence is the negligence of two or more persons towards a third, who is not at fault at all. Liability is joint and several, and the claimant may recover the entire compensation from any one of them; the apportionment between them is for their benefit and does not reduce what he gets. Contributory negligence is the claimant's own failure to take care of himself, and it reduces his damages in proportion to his share of the fault. The Supreme Court has had to correct the confusion more than once, in T.O. Anthony v. Karvarnan and in Khenyei v. New India Assurance.
The two doctrines, the two Supreme Court decisions, and the rules on contribution and indemnity
1. Composite Negligence
- Two or more persons are negligent towards a third person, who is himself free from fault.
- Their acts combine to cause a single indivisible injury. The classic case is a collision between two negligently driven vehicles injuring a pedestrian or a passenger.
- Liability is joint and several. Each of them is liable to the claimant for the whole of the damage.
- The claimant may sue any one of them, or some, or all, and may recover the entire compensation from whichever he chooses.
- Apportionment between them is for their inter se settlement, and does not reduce what the claimant recovers from any one of them.
- The non impleading of one of them does not affect the claimant's right to recover in full from the others.
- The term is Indian usage for what the English books call concurrent or independent tortfeasors causing the same damage.
📖 Khenyei v. New India Assurance Co. Ltd., (2015) 9 SCC 273 Facts A bus and a trailer truck collided and the claimants were injured. The tribunal assessed the negligence at one third on the part of the bus driver and two thirds on the part of the trailer driver. The question was whether the claimants could recover the whole award from the bus insurer. Held They could. In composite negligence the claimant may recover the entire compensation from any one of the joint tortfeasors. Ratio In a case of composite negligence the claimant is entitled to sue both or any one of the joint tortfeasors and to recover the entire compensation. The apportionment of negligence between the tortfeasors is for the purpose of settling their liability inter se, and does not affect the claimant's right to recover the whole from any one of them. Once one has satisfied the award, he may recover the proportionate share from the other in execution, provided both were impleaded and the shares were quantified. |
2. Contributory Negligence
- The injured person was himself partly at fault, and his own want of care contributed to the injury he suffered.
- It is a failure to take reasonable care of himself, not a breach of a duty owed to the defendant.
- In modern Indian practice it apportions rather than bars. The damages are reduced by the proportion of the claimant's own responsibility.
- The older common law rule was that it defeated the claim entirely, and the harshness of that rule produced the last opportunity doctrine, under which the party who had the last chance to avoid the accident bore the whole loss.
- Apportionment has replaced both. In England by the Law Reform (Contributory Negligence) Act, 1945; in India by judicial adoption of the same approach, and by the practice of the motor accident tribunals.
- A child's contributory negligence is judged by the standard of a child of his age, and a very young child is ordinarily incapable of it.
- It does not apply where the claim is under Section 164 of the Motor Vehicles Act, 1988, the no fault provision, which neither negligence nor contributory negligence defeats or reduces.
📖 T.O. Anthony v. Karvarnan, (2008) 3 SCC 748 Facts The injured claimant was himself one of the drivers involved in the collision. The courts below had treated the case as one of composite negligence and divided the liability accordingly. Held That was wrong. Where the person injured is himself one of the negligent parties, the doctrine is contributory negligence and not composite negligence. Ratio Composite negligence refers to the negligence of two or more persons towards the same person; the plaintiff is not at fault. Contributory negligence arises where the person injured is partly responsible for his own injury. Where a claimant is himself partly to blame, his damages must be reduced by his share, determined on the facts, and there is no automatic division into equal halves. |
3. The Two Compared
Composite negligence | Contributory negligence | |
Who is negligent | Two or more persons, towards a third | The injured person himself, along with another |
Is the claimant at fault | No | Yes, in part |
Effect on the claim | None. He recovers in full | His damages are reduced in proportion |
Whom he may sue | Any one, some or all of the tortfeasors, for the whole | The defendant, for the reduced amount |
What apportionment does | Settles liability between the tortfeasors only | Reduces what the claimant recovers |
Non impleading of one tortfeasor | Does not affect his right to recover in full | Not applicable |
The authority | Khenyei v. New India Assurance, (2015) 9 SCC 273 | T.O. Anthony v. Karvarnan, (2008) 3 SCC 748 |
4. Contribution and Indemnity Between Tortfeasors
Contribution | Indemnity | |
What it is | A sharing of the loss between tortfeasors | A complete shifting of it from one to another |
When it arises | After one tortfeasor has paid more than his share | Where one party is liable only technically and another is actually at fault |
The common law rule | Merryweather v. Nixan (1799): no contribution between joint tortfeasors | Available, and unaffected by Merryweather |
The English position | The rule was abolished by the Law Reform (Married Women and Tortfeasors) Act, 1935 | Unchanged |
The Indian position | The rule has been confined to cases where the wrongdoer knew he was doing an unlawful act; contribution is allowed where he did not | Available, as where a master held vicariously liable recovers from the servant |
How it is recovered | By a separate suit, or in execution where both were impleaded and shares quantified: Khenyei | By suit, or under a contract of indemnity where one exists |
5. Release and Successive Actions
- Against joint tortfeasors properly so called, who acted in concert or through vicarious liability, there is one cause of action: one satisfaction discharges all, and a release of one releases all.
- A covenant not to sue one preserves the plaintiff's rights against the others, and is the device used where a settlement with one is intended.
- Against independent tortfeasors there are as many causes of action as wrongdoers: separate suits lie, and judgment against one is no bar to a suit against another.
- In no case may the plaintiff recover more than his loss. Satisfaction, not judgment, is the limit.
- Where composite negligence is in issue in a motor accident claim, the claimant is best advised to implead all the tortfeasors, because Khenyei makes recovery of the inter se share in execution depend on their having been impleaded and their shares quantified.
6. The Practical Advice
⚠ For a claimant who was not himself at fault The single most useful consequence of these rules is this. A claimant who was not himself at fault and who has been injured by the combined negligence of two or more people should sue all of them and recover the whole from whichever is solvent or insured. He need not establish the proportions between them, he need not join them all to recover in full from one, and any apportionment the tribunal makes between them does not touch his award. The error the Supreme Court had to correct in T.O. Anthony was the opposite one: treating a claimant who was himself one of the drivers as though he were an innocent third party, and then dividing the liability as if composite negligence applied. The first question is always whether the claimant was at fault, because that alone decides which of the two doctrines is in play. |
7. The Position Stated Shortly
1. Composite negligence is the negligence of two or more persons towards a third, who is himself free from fault.
2. Liability is joint and several, and the claimant may recover the entire compensation from any one of them.
3. Khenyei v. New India Assurance holds that apportionment between tortfeasors settles their inter se liability and does not reduce the claimant's recovery.
4. The non impleading of one tortfeasor does not affect the claimant's right to recover in full from the others.
5. Contributory negligence is the claimant's own failure to take care of himself, contributing to his injury.
6. It reduces his damages in proportion to his share, and in modern Indian practice apportions rather than bars.
7. T.O. Anthony v. Karvarnan holds that where the injured person is himself one of the negligent drivers, the doctrine is contributory and not composite negligence.
8. There is no automatic division into equal halves; the shares are determined on the facts.
9. Merryweather v. Nixan barred contribution between joint tortfeasors, and in India the rule is confined to cases of conscious wrongdoing.
10. Against joint tortfeasors one satisfaction discharges all and a release of one releases all; against independent tortfeasors separate suits lie.