Critical Analysis of the Doctrine of Last Opportunity in Personal Injury
Author: Manasvi Kanaparthy
Student, Indian Institute of Management, Rohtak
The last opportunity rule or the rule of last clear chance was a theory that evolved in cases of contributory negligence in personal injury cases. Negligence, in general, refers to an act or omission on the part of the defendant in a tort claim, in breach of a duty of care owed by him/her to the plaintiff that causes injury to the plaintiff. A defense to a claim of negligence that is available to the defendant is that of contributory negligence. Contributory negligence refers to an act or omission on the part of the plaintiff himself due to which the injury was caused. In such cases, if contributory negligence is proven, the liability for the incident is no longer solely on the defendant’s shoulders.
It was given by the English Court of Exchequer in the case Davies v Mann and evolved over the decades. The case involved the plaintiff tying his donkey by the side of the road as it was grazing, the defendant riding in his horse-drawn wagon with three horses at a relatively fast pace. He crashed into the donkey tied off the road and injured it, eventually causing it to die. The court held that this was not a case of contributory negligence on the plaintiff’s part because, despite the animal’s forefeet being tied up by the plaintiff and leaving it unattended, the defendant had the ‘last opportunity to avoid the accident. In similar situations, where both the plaintiff and the defendant are negligent, negligence is attributed to the person who had the last chance to prevent the accident and didn’t do so. In such cases, the defense of contributory negligence is not available to the defendant.
EVOLUTION OF THE LAST OPPORTUNITY RULE THROUGH CASE LAWS
The last opportunity rule was first found mentioned in Davies vs Mann. It was considered to be path-breaking in its a softened approach to the plaintiff’s claim Contributory negligence also being rather a recent concept, the precedent in Davies vs Mann gave a logical context to the concept only loosely put by previous judgments negating the defense of contributory negligence.
In Davies v Mann, it was made clear that if the plaintiff’s alleged contributory negligence was a remote, rather than the proximate cause of the accident, only then the rule applies. It is also clear that in the last deciding moment of the accident where only the defendant could prevent it and the situation was out of the plaintiff’s hands, the rule would apply and know that another ship was in their way, and despite that, they did nothing to prevent the collision. It was held that the plaintiff’s negligence of not maintaining a lookout, was not a direct cause of the collision. The one who persists despite being fully aware of the danger is held liable over the one who was negligently unaware of the danger, in cases where the apportionment of liability is complex.
Radley v London & Northwestern railway – in this case, the plaintiff was the owner of a colliery that piled one truck on top of another, so the driver could not pass beneath the defendant’s railway bridge. The engineer who was ‘shunting’ or attaching engines to train compartments felt that the truck was putting pressure passing under the bridge, he continued to apply power and the bridge was damaged. The plaintiff was allowed to recover damages, despite their negligence in overloading the truck, simply because the engineer working for the defendant had the last chance to prevent the accident and yet did not.
British Columbia Electric Railway v Loach – in this case, the defendant was driving his car at a negligent speed past a railway crossing. The train immediately tried to brake, but due to the defective brakes the train could not stop in time and the plaintiff was injured. Here, the privy council departed from the previously established last opportunity rule. Here the privy council held that while the defendant’s negligence was the ultimate one in deciding the liability, and held the defendant liable because the train had the last clear chance to prevent the collision.
The below case was another major turning point for the doctrine as it was seen from the confusing and convoluted interpretations of the rule in the last few instances. It was being applied indiscriminately whether it was relevant or not because each case gave it wider and wider applicability, eventually invalidating the defense of the plaintiff’s negligence. This case expressed the modern concern about the cause and effect of accidents being indistinguishable, and the doctrine is applied to every possible scenario.
Admiralty commissioner v SS Volute – in this case, there were two heavy vessels involved in a collision. A destroyer called Radstock and the SS Volute which was a merchant ship. SS volute changed her course unexpectedly without giving any signal. The destroyer, despite knowing this, increased its speed. It was in this case that the previous series of precedents invalidating contributory negligence were negated. It was said that the time and causes of the collision were such that a clear distinction could not be drawn between them to ascertain which party’s fault it was.
Tuff v Warman also concluded in support of the last opportunity rule. In this case, the defendant’s steam vessel collided with the plaintiff’s ship which had no ‘lookout’ and is an elevated viewing point for a ship. It was proved that the crew on the defendant’s vessel had seen
Swaddling v Cooper - in this case the defendant was driving a car on a highway, across which a smaller country road ran. It was on this road that the plaintiff was riding his motorcycle and was killed by the collision. It was said that the defendant tried to brake, but could not prevent the collision. The house of lords held that since the knowledge of danger came mere seconds before the actual collision, neither of the parties had the ‘last opportunity’ to prevent the accident, and so there could be no claim for damages.
Law Reform (contributory negligence act) 1945 – Due to the inconsistency in judicial rulings, the British parliament enacted the Law reform act to bring uniformity. Essentially, the act allowed what is known as the ‘apportionment of damages. The act says that a plaintiff’s own negligence in the accident need not entirely defeat his claim, but merely reduce the damages he is awarded to the proportion of the accident that was his fault. So in essence it appears that the last opportunity does not absolutely rule stand, but will not negate the defense of contributory negligence either, it merely tips the scales in favor of the plaintiff. The apportionment that is prescribed in the act essentially defeats the purpose of laying the entire fault of the accident on either party, it is precisely this laying of the entire blame on a party that gave the last opportunity rule its teeth.
A massive fall in favor can be seen for the doctrine since its inception. Its practical application of it seemed to become more and more convoluted as the nature of the accidents became more modern and complicated. Apart from the fact that stakes were higher in the later cases where the last opportunity rule was applied. This is possibly due to the dangerous nature of the accidents caused by modern vehicles. It was no longer the case of a donkey being trampled and a suit being brought for loss of property. The stakes now involve a person’s life, in most accident cases where the doctrine was popular. It can also be observed that an increase in the number of such claims, necessitated that the government has a comprehensive legislation dealing with it, rather than relying on confusing and often conflicting judicial precedent.
APPLICATION IN INDIAN JURISDICTIONS
Jang Bahadur Singh vs Sunder Lal Mandal and Ors. – The plaintiff was the owner of a horse, and was standing on the left side of the road with the horse to his left, close to a ditch. When the bus driver, the defendant in this case, was driving at a rash speed on the wrong side of the road. The last opportunity rule was applied in this case along with several other principles. The defendant had the last opportunity to prevent the collision, apart from which the plaintiff was not in a position to move further left because he was standing by a ditch. The Patna High court upheld the decision of the subordinate court.
Brij Mohan Sahni vs Mohinder Kumar – in this case, two motorcycles belonging to the plaintiff and the defendant collided. The defendant’s vehicle was exiting the circus, when the plaintiff was coming from a smaller road joining the road where the collision. The defendant took a wrong turn. Essentially, the court emphasized the obsolescence of the last opportunity rule. Winfield’s opinion on the last opportunity rule was quoted as calling it illogical. Lord Denning’s remarks were quoted from another case Jones v. Livox Quarries where he was quoted as saying that despite the irrelevance of the last opportunity doctrine, the problem of determining causation still remains. In the above case, it was decided that the defendant was negligent and the use of the doctrine in question does not arise.
Indian jurisprudence seems to follow in the footsteps of its English counterpart in rejecting the doctrine.
So, the modern antipathy towards the last opportunity rule is legitimate because with faster and more sophisticated vehicles it is next to impossible to assess the causation of an accident or collision. After all, the damage is done in mere fractions of seconds. The doctrine when it evolved, the slow pastoral nature of the accidents involving horses and wagons is not the reality anymore. And in modern situations, the accident happens before one can realize it and the damage is done. As for the recovery, it is a huge possibility that when blame is being attributed according to archaic doctrines invented for another time, it is affixed to someone who does not deserve it.
 Harvard Law Review, 1914. Contributory Negligence. "Last Clear Chance" Doctrine. Effect of Concurrent Negligence of the Plaintiff. 27(8), p.757.  G.D. von Dongen, E. and Verdam, H., 2016. The Development of the Concept of Contributory Negligence in English Common Law. Utrecht Law Review, [online] 12(1), pp.62-74. Available at: <https://www.utrechtlawreview.org/articles/10.18352/ulr.326/galley/335/download/> [Accessed 26 March 2022].  Tuff v Warman  140 E.R. 607 (THE COURT OF EXCHEQUER CHAMBER).  Swaddling v Cooper  UKHL J0728-1 (House of Lords).  Jang Bahadur Singh vs Sunder Lal Mandal and Ors.  AFAD 1183 (High Court of Bihar).  Brij Mohan Sahni vs Mohinder Kumar  (1) DLT 275 (High Court of Delhi).