- (1.) THESE two Civil First Appeals arise out of a suit for recovery of damages filed by Jankilal plaintiff in forma pauperis against Roodmal, Kishore Singh, Rajas-than Agricultural Insurance Co Ltd. and the Unique Motor and General Insurance Co. Ltd. , Jaipur, Defendants Nos. 1 to 4 respectively, in the court of the District Judge, Jaipur City.
(2.) THE case set out by the plaintiff is that he was a Head Constable in the Rajasthan Police Service in the year 1951. On the 1st of December 1951, he was travelling in Bus No. RJL-288, hereinafter called, for the sake of brevity, Bus No. 288, and was proceeding from Jaipur City to Manoharpur. THE owner of this bus is Roodmal defendant No. 1 and this bus is insured with the Rajasthan Agricultural Insurance Co. Ltd. , Defendant No. 3. THE insurance policy covered the liability to third party in the event of accident caused or arising out of the use of vehicle in a public place. THEre was a collision of the bus in which the plaintiff was travelling with Bus No. RJL. 546, hereinafter called Bus No. 546, coming from the opposite direction at a little distance from Mile Stone No. 27/5. Bus No. 546 is owned by Kishore Singh Defendant No. 2 and was insured for third party liability with the Unique Motor and General Insurance Co. Ltd. Defendant No. 4. According to the plaintiff this accident was the result of negligence on the part of both the buses. Both were being driven at a great speed. When these buses crossed each other, they brushed each other on account of the negligence of the drivers and the excessive speed. In this accident, the right hand of the plaintiff was seriously injured. THE plaintiff received the following injuries on his right hand: - (1) Lacerated wound 3"x 1-1/2"x bone deep on the surface of right fore arm with fracture of both bones; (2) Lacerated wound 3-1/4" x 1-1/2"x bone deep or the dorsal surface of right forearm riddled with fracture of both bones; (3) Lacerated wound 6-1/2"x 3-1/2" x thickness of arm on right arm with comminuted fracture of humerus. THE plaintiff was admitted in the Sawai Man Singh Hospital, Jaipur and was treated by Dr. G. K. Bhatnagar under the supervision of Dr. P. D. Mathur, Surgeon, Sawai Man Singh Hospital. THE amputation of the hand was considered necessary in view of the injuries and it was performed by Dr. H. D. Shukla under the supervision of Dr. P. D. Mathur. THE plaintiff claimed Rs. 32,225/-- as damages as detailed in Para. No. 4 of the plaint. The suit was contested by the defendants. It is no longer in controversy in this appeal that Bus No. 288 belonged to defendant No. I and Bus No. 546 belonged to Kishore Singh and they were insured for third party liability with defendants Nos. 3 and 4 respectively. Roodmal Defendant has taken up the pleas that there was no collision between the two buses but the bus coming from opposite direction passed each other without any collision, that there was no negligence on the part of the driver of Bus No. 288 and it was being driven at a slow speed, that the plaintiff sat in Bus No. 288 at Jaipur City without taking any ticket and in spite of the fact that it had no accommodation, that the plaintiff had put his hand outside the bus contrary to the instructions written on the bus for guidance of the passengers and that the plaintiff only sustained some injuries in the hand and it was not necessary to amputate the hand. Roodmal also denied his liability for the damages and stated that if there was any negligence, it was on the part of the plaintiff and the driver of Bus No. 546. Kishore Singh also took the plea that the plaintiff had put his hand outside Bus No. 288 and it was on account of this that there were injuries to his hand. The Insurance Companies have also denied their liabilities practically on the same grounds as taken by defendant No. 1. The case was tried by the Senior Civil Judge, Jaipur. The learned Judge held that it was proved beyond doubt that the collision occurred on account of rash and negligent driving by the drivers of both the buses and there was gross and culpable negligence on the part of both the drivers. The learned Judge further held that only the elbow of the plaintiff was on the window of Bus No. 288 and no part of the body was outside the window and that his hand went outside on account of the collision and got seriously injured and had to be amputated. The learned Judge disbelieved the case set-up by defendant No. 1 that he was travelling without a ticket or that he had taken his seat even when there was no accommodation. The learned Judge disbelieved the defence evidence produced on behalf of the defendant that the passengers were warned to keep their hands inside. The learned Judge allowed the plaintiff damages to the extent of Rs. 15,000/-/ -. In the concluding part of his judgment the learned Judge apportioned the damages and held that Defendant Nos. 1 and 3 were liable to pay Rs. 7500/- while defendant Nos. 2 to 4 were liable to pay balance of Rs. 7,500/- and each set of defendants was liable to pay half of the costs. Against this judgment and decree Roodmal had preferred Appeal No. 25 of 1956, while the Unique Insurance Co. Ltd has filed Appeal No. 26 of 1956. The plaintiff has also preferred cross objections. Both the appeals and the cross objections are disposed of by this judgment. On behalf of the appellants arguments were addressed to us on all the points which were pleaded in defence and the findings of the trial court on questions both of fact and law have been challenged. The counsel for the plaintiff has supported the judgment of trial court. The further question is whether the plaintiff's hand was outside the window at the time of the accident and if so, what is the effect of this on the liability of the defendants? The extreme case of the defendants that the plaintiff had stretched his hand outside Bus No. 288 in order to stop Bus No. 546 has no merit and the evidence on this point has been rightly rejected by the trial court. There was no reason for the plaintiff to stretch his hand at the time of the accident so stop Bus No. 546 and this case has been put up by the defendants only to escape the liability. Learned counsel for the appellant has however urged that even if the case set up by the defendants is rejected, it is at least clear from the manner in which the accident occurred and nature of the injuries to the plaintiff that a part of his hand was outside Bus No. 288 at the time of the accident. Bus No. 288 was going from south to north while Bus No. 546 was coming from north to south. It is conceded before us that seating arrangement in Bus No. 288 was that some of the seats are parallel to the chassis while on the back portion of it seats were at right angles to the chassis. The driver's seat and the seats which were meant for the ladies were parallel to the chassis while seats in the back portion were at right angles to those seats. According to the plaintiff, he was sitting an a seat which ran from north to south and he was facing westwards, while according to defendant No. 1, he was sitting on the zenana seat. The defendants have put the case that the plaintiff was sitting on the zenana seat in order to show that he could stretch out his hands easily. However, the evidence on record definitely establishes that the plaintiff was sitting on the back part of the bus where the seats were at right angles to the chassis. When he was found injured, he was found lying on that seat. The trial court has held that while in that position the plaintiff had put his elbow on the window and with the impact of Bus No. 546 the hand slipped and part of it went outside Bus No. 288. Learned counsel for the defendants have urged that if there was any impact, it was near the engine or just at the place where the plaintiff was sitting and it was extremely improbable that the hand of the plaintiff even if it was on the window should go outside the window. This takes us to the question as to how the accident occurred. The Road from Jaipur to Shahpura is part of the road from Jaipur to Delhi which is a national highway. At the time of the accident the width of the metalled part of the road was 10 ft. On both sides of the road there was strip of five feet which were katcha but were on level with the metalled part so that the road was 22-1/2 ft. in width. At the place of the accident there was a causeway i. e. for a very small distance there was an ascent and descent in the road, leaving a strip of the road for flow of water. Bus No. 546 of Kishore Singh, respondent was a Shevrolet make of 1938 model. Bus No. 288 was also an old model vehicle. Shamsuddin driver of Bus No. 288 stated that at the time his bus was being driven at a speed of 20 miles per hour. Arjun Singh (P. W. 6) who was a passenger in Bus No, 546 stated that both the buses were being driven at excessive speed. The driver or the conductor of Bus No. 546 has not been produced. Both the buses were being driven on the metalled part of the road and it was only when the collision appeared to be imminent that the drivers of both the buses swerved a little. According to the evidence of Shamsuddin he swerved to the extent of two feet towards the katcha road. He, however, stated that it was not possible to swerve further as there was no room for doing so. Kishen Lal (P. W. 9) Station House Officer of the Police Station Chandwaji at that time had inspected the site on the 1st of December, 1951. He stated that both the buses could have passed the place of accident without difficulty as the road was 22-1/2 feet in width. The accident took place because of crossing, both the buses brushed on their side with each other. According to Shamsuddin (D. W. 3) the mirror for rear view in his bus, which was slightly protruding, was broked. There were marks of brushing on both the buses. The glass pane of the window near it driver of Bus No. 546 was broken and the front right mudguard was damaged. The plaintiff's evidence is that both the buses were occupying half portion of the road and the collision had taken place just in the middle of the road. The plaintiff has also stated that the impact near the seat of the driver and the seat behind it was of more intensity than on the remaining portion of the bus. There is evidence on record to show that the buses were being driven with high speed at the time of the accident. From these circumstances inference that there was rash and negligent driving of both the buses as had been held by the trial court and the collision took place on that account. The width of the metalled road being 10-1/2" was the duty of both the drivers to have taken notice that unless they swerved towards the kutcha portion of the road, there was the danger of collision. Both the drivers did not take in time the steps to avert the accident and the drivers of both the buses were guilty of bus and negligent driving. However, the main point that has been canvassed on behalf of the appellants is th the case of the plaintiff that his hand was resting on the elbow and it came out because of that impact is not true and that a portion of his hand, even though it may be taken that not the full portion of it, was outside the window and he received the injuries on his hand on that account. The trial court has held that because of the impact, a portion of the hand of the plaintiff came out of the window. This point is seriously contested and it is urged that if the elbow was resting on the window, the impact would have flung the plaintiff inside the but towards the west or southwest as he was facing west and the front portion of Bus No. 288 recei-ved the impact, This would have had the effect of bringing his hand altogether inside the bus and not outside as stated by the plaintiff. There is considerable force in this argument and we here differ slightly from the finding of the learned Judge of the trial court that the hand of the plaintiff was thrown out of the bus because of the impact. We may proceed to deal with the case on the basis that part of the hand of the plaintiff was outside the window. The nature of the injuries received by him also supports this view. It was not un-natural on the part of the plaintiff that in order to relax, he put a portion of his hand outside the window. It may be mentioned that there were no arms provided for passengers for placing their hands and a passenger may sometimes put part of his hand outside the window inadvertently or unawares. On behalf of the appellants, it has been urged that the plaintiff ought to have kept his hand inside the bus while travelling in the bus and as the injury to his hand occurred on account of his keeping the hand outside he was guilty of contributory negligence. It is pointed out that injury to his hand would have not occurred if the plaintiff had kept his hand inside the bus. In this connection it is pointed out that no other passenger of Bus No. 288 received any injury. We proceed examine this aspect of the matter. The doctrine of contributory negligence has received the attention of courts of law in a number of cases. It has also engaged the attention of a large number of eminent jurists and textbook writers. The law of contributory negligence has been thus stated by Winfield on Tort, Sixth Edition (1954)-by the T. Ellis Lewis, Art. 125 page 507 - "if, though the defendant has been negligent, the plaintiff has also been negligent, at common law he could not recover if his own negligence were either (i) the decisive cause of the accident, or (ii) so closely implicated with the negligence of the defendant as to make it impossible to determine whose negligence was the decisive cause. Thus where the injuries have been caused partly by the defendant's fault and partly by the fault of the plaintiff, the contributory negligence of the plaintiff, if established, freed the defendant of all liability. " In England from the earliest times attempt has been persistently made to excuse the fault of a party guilty of small negligence. The first leading case on the subject is that of Butterfield against Forrester (1 ). Lord Ellenborough C. J. observed, as follows: - "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. " In Rigby Vs. Hewitt (2), the plaintiff in that case was a passenger on an omnibus which was racing with the defendant's omnibus, and in trying to avoid a cart, a wheel of the defendant's omnibus came in contact with the steps of the ominus on which the plaintiff was riding, which caused the latter to swing towards the kerbstone, and the omnibus on which the plaintiff sat struck against a lamp-post, and he was thrown off. In an action for negligence, it was held that: - ". . . . . . . . . the plaintiff was not disentitled to recover merely because the omnibus on which he sat was driving at a furious rate; at that, if the jury thought that the collision took place from the negligence of the driver of the defendant's omnibus, and that the other omnibus was not in fault in not endeavouring to avoid the accident, then the defendant was liable. " Pollock, C. B. observed, as follows: - ". . . every person who does a wrong, is at least responsible for all the mischievous consequences that may reasonably be expected to result, under ordinary circumstances, from such misconduct; and I think that, in the situation of these parties, any distinction which I might be disposed to draw in an extreme case, does not arise in the one which is now before the Court. " In Davies Vs. Mann (3), the general rule of law was laid down that although there may have been negligence on the part of the plaintiff yet unless he might by exercise of ordinary care, have avoided the consequences of the defendant's negligence, he is entitled to recover. In Greenland Vs. Chaplin (4), Pollock C. J. observed, as follows : - "i entirely concur with the rest of the Court, that a person who is guilty of negligence, and thereby produces injury to another, has no right to say, "part of that mischief would not have arisen if you yourself had not been guilty of some negligence" I think that where the negligence of the party injured did not in any degree contribute to the immediate cause of the accident, such negligence ought not to be set up as an answer to the action; and certainly I am not aware that, according to any decision which has ever occurred, the jury are to take the consequences and divide them in proportion according to the negligence of the one or the other party. " The rule Davies Vs. Mann (3) was approved in Tuff Vs. Warman (5 ). House of Lords in The Rev. Thomas Rabley and Henry Bramall and the Directors of the London & North Western Railway Company (6) approved the law laid down in Davies Vs. Mann (3) and Tuff Vs. Warman (5 ). Lord Penzance observed, as follows: - "the first proposition is a general one, to this effect, that the plaintiff in an action for negligence cannot succeed if it is found by the jury that he has himself been guilty of any negligence or want of ordinary care which contributed to cause the accident. But there is another proposition equally well established, and it is a qualification upon the first, namely, that though the plaintiff may have been guilty of negligence, and although that negligence may, in fact, have contributed to the accident, yet if the defendant could in the result, by the exercise of ordinary care and diligence, have avoided the mischief which happened, the plaintiff's negligence will not excuse him. " Their Lordships of the Privy Council also approved the statement of law in Tuff Vs. Warman (5) in British Columbia Electric Company, Limited and Loach (7 ). Their Lordships observed that - "the consequence of the deceased's contributory negligence continued, it is true, but, after he had, looked, there was no more negligence, for there was nothing to be done, and, as it is put in the classic judgment in Tuff vs. Warman (1858)5 C. B. (N. S.) 573, 585, his contributory negligence will not disentitle him to recover "if the defendant might by the exercise of care on his part have avoided the consequences of the neglect or carelessness of the plaintiff. " The facts of that case are instructive, One Benjamin Sands was run down at a level crossing by a car of the appellant Railway Company and was killed. He was being taken by Hall in a wagon, and they drove together on to the level crossing, and neither heard nor saw the approaching car till they were close to the rails and the car was nearly on them. The wagon was run into with the result that Benjamin was killed. An action was brought by the Administrator of the estate of Benjamin Sands for damages. Their Lordships observed, as follows: - "the whole law of negligence in accident cases is now very well settled, and beyond the difficulty of explaining it to a jury in terms of the decided cases, its application is plain enough Many persons are apt to think that, in a case of contributory negligence like the present, the injured man deserved to be hurt, but the question is not one of desert or the lack of it, but of the cause legally responsible for the injury. However, when once the steps are followed the jury can see what they have to do, for the good sense of the rules is apparent. The inquiry is a judicial inquiry. It does not always follow the historical method and begin at the beginning. Very often it is more convenient to begin at the end that is at the accident, and work back along the line of events which led up to it. The object of the inquiry is to fix upon some wrong doer the responsibility for the wrongful act which has caused the damage. It is in search not merely of a causal agency but of the responsible agent. When that has been done, it is not necessary to pursue the matter into its origins; for judicial purposes they are remote. Till that has been done there may be a considerable sequence of physical events, and even of acts of responsible human beings, between the damage done and the conduct which is tortious and is its cause. It is surprising how many epithets eminent judges have applied to the cause, which has to be ascertained for this judicial purpose of determining liability, and how many more to other acts and incidents, which for this purpose are not the cause at all. "efficient or effective cause" "real cause", "proximate cause", "direct cause"', "decisive cause", "immediate cause", "causa causans" on the one hand, as against, on the other, "cause sine qua non" "occasional cause" ''remote causa", ''contributory cause" ''inducing cause", "condition" and so on. No doubt in the particular cause in which they occur they were thought to be useful or they would not have been used, but the repetition of terms without examination in other causes has often led to confusion, and it might be better after pointing out that the inquiry is an investigation into responsibility, to be content with speaking of the cause of the injury and without qualification. " In the case before us the accident was the result of negligent driving by the drivers of both the buses but still had the plaintiff's hand not been outside the Bus No. 2838, injury to him might not have been caused. In most of the cases, cause of the accident is the cause of the injury but the present case has some special features. The injury was the result of the three causes put together. If we hold that the plaintiff was guilty in failing to have used the ordinary care for the protection of himself such omission on his part will be a case of negligence on his part which partly contributed to the injury to him. In the case of Caswell Vs. Powell Duffryn Associated Collieries Ltd. (8), Lord Atkin observed that - "but the injury may be the result of two causes operating at the same time, a breach of duty by the defendant and the omission on the part of the plaintiff to use the ordinary care for the protection of himself or his property that is used by the ordinary reasonable man in those circumstances. In that case the plaintiff cannot recover because the, injury is partly caused by what is imputed to him as his own default. On the other hand if the plaintiff were negligent but his negligence was not a cause operating to produce the damage there would be no defence. I find it impossible to divorce any theory of contributory negligence from the concept of causation. " The question that requires consideration from us is whether merely because the plaintiff put part of his hand outside in this case - it may be that he did so only to adopt a more comfortable posture - he must be taken to have omitted to use the ordinary care for the protection of himself. Bus No. 288 was being driven not in the city where there might be considerable traffic but some 26 miles beyond Jaipur City where there was no rush of traffic. So the plaintiff might well have justifiably taken a view that any bus crossing his bus will leave some margin of the safety in crossing. The attitude to be taken by a plaintiff in such cases varies with the circumstances. We are, therefore, of the opinion that the plaintiff was not guilty of non-excusable negligence!, if we may employ the phrase, when he put his hand slightly outside the window at the time when the accident occurred and his hand was injured. It may also be stated that the plaintiff's putting his band slightly out of the window did not in any way contribute to the accident, i. e. the collision of buses though it was a factor which must be taken into account when the injury to the plaintiff is to be considered. Learned counsel for the appellants have relied on Dullabhji Sakhidas Sanghani Vs. The Great Indian Peninsula Railway Company and Anna Rami Vs. The Great Indian Peninsula Railway Co. (9 ). In that case, the plaintiffs were passengers in an up local train of the defendant Company, proceeding from Mazagaon to Masjid. At a point just before Masjid, a down mail train passed, with the door of one of its compartments open swinging. The door caught arms of the plaintiffs which were projecting slightly outside the carriage windows and inflicted some injuries. As a result two suits were filed against the Company for damages. Beaman J. considered a number of English cases to which it is not necessary for us to refer because the conclusion to which he has arrived is based in our opinion on his own views of the case. It was observed in that case that - "his arm (the arm of the passenger) ought not to have been outside at all, not the fraction of an inch. Now, accepting the principle as the basis of rule of law, that a passenger must travel inside and not outside his compartment, and therefore if he does travel outside, he does so entirely at his own risk and the Company cannot be held liable for any injury which he suffers in consequence, it comes to this, that a passenger who gets injured owing to putting any part of his person outside his carriage is guilty of contributory negligence. And it would follow that where the plaintiff admitted that he had incurred the injury in this way, no matter what negligence there might be on the part of the Company, he would have no case to lay before a Jury. " Referring to this case Davar J. of the Bombay High Court observed in Jehangir Muncherji Lali Vs. The Bombay, Baroda and Central India Railway Co. (10) "in that judgment brother Beaman has discussed most of the leading cases on the subject of negligence and contributory negligence and the judgment is one which requires to be most carefully considered, when another Judge of the same Court is called upon to pronounce his decision in another case where the facts are most similar, if not almost identical. No one is more conscious than myself that it is desirable that there should be uniformity in judgments of the same Court as far as possible. Under the circumstances, I have most carefully read and considered the whole of this judgment, and although I am in complete accord with much that is in it, I feel constrained to say that I am unable to follow the rigid and inflexible rule of law which, the learned Judge says, must be applied without any deviation or relaxation in all cases of this kind. " The case of Dullabhji Sakhidas Sanghani (9) was also taken notice of in Chotelal Vs. G. I. P. Railway Co. (11) and the judgment in that case proceeds on the basis that the plaintiff in that case had the last opportunity of avoiding the accident and that as he failed to do so, he could not claim any damages from the Company. Here we may make certain observations with regard to cases in which the doctrine of last opportunity has been applied. The test which is often applied for determining the true cause of the accident is who had the last opportunity to avoid the accident but this is no more than a test to determine the liability of the person who was responsible for the accident.
(3.) A man who keeps his hand outside the window of a railway coach even if knowing it may get injured is only acting in a spirit of bravado and must be taken to have invited injury to himself and cannot claim any damages but when a man is acting in a manner in which a common man in the given circumstances is supposed to act and he gets injured on account of the negligence of the defendant, he cannot be held to be disentitled to claim damages merely on the ground that he has not taken extraordinary care of himself, or on the ground that there was some negligence on his part, though he could not have foreseen that such negligence was likely to result in injury to him. This is the rule of common law laid down in a number of authorities decided by the highest court in England. We may in this connection refer to the following passage in Halsbury's Laws of England 3rd Edition 21 Volume (1959), at Page 90. "a person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonably prudent man, he might hurt himself. The plaintiff is not usually bound to foresee that another person may be negligent unless experience shows a particular form of negligence to be common in the circumstances. If negligence on the part of the defendant is proved and contributory negligence by the plaintiff is at best a matter of doubt, the defendant alone is liable. " It is a question of fact in each case to determine whether the want of knowledge by the plaintiff of an existing danger was so unreasonable in what he did that it constituted contributory-negligence. In Grant Vs. Sun Shipping Co. (12), the House of Lords cited with approval the case of Gee Vs. The Metropolitan Railway Company (13), where it was held that it was not necessarily contributory negligence to lean against a carriage window. We are therefore of the opinion that under the common law the plaintiff in this case is not disentitled to claim damages. It has, however, been argued that after the coming into force of the Law of Contributory Negligence, 1945 in England, the law on the subject of contributory neglience stands altered at least in the matter of awarding damages and that law must be taken to be applicable to India. Reliance in this connection is placed on a Division Bench authority of this Court in the Kotah Transport Ltd. , Kotah Vs. The Jhalawar Transport Service Ltd. , Jhalawar ([4 ). In that case it was held that - "the Indian courts, when applying the rules of justice, equof justice, equity and good conscience would be justified in applying the law of torts as it stood at the relevant time and not go back to the pre-natal period, when Lord Ellenborough held that under the Common Law of England, no one could recover damages in tort for the death of another. It would de illogical for the courts in applying the principles ity and good conscience to treat the Common Law on the subject, divorced from the statute law, when the established law at the relevant date, prevailing on the subject, whether in India or in England was the law as modified by statute. " This authority is binding on us and without making any observations of our own on the subject we proceed to consider whether the Law Reform (Contributory Negligence) Act 1945 modifies in any manner the liability of the defendants. S. 1 sub-sec. 1 of that Act runs, as follows: "where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect there of shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage. " Charlesworth in his Law of Negligence, Second Edn. (1947) at Pag 495, has taken the view that: - "it would seem that the Act only deals with cases in which the claim would have been defeated at Common Law. If the plaintiff would have succeeded at Common Law, even though there were some careless conduct on his part, he has no need to rely on the Act, and the Act does not take away any right of action a plaintiff would have had if the Act had not been passed. " There is divergence of judicial opinion on this point. In Davies Vs. Swan Motor Co. (Swansea) Ltd. James, Third Party (15), Bucknill and Evershed L. JJ. took the view that the law in Davies Vs. Mann (3) was not affected by the provisions of the law Reform (Contributory Negligence) Act, 1945. Denning L. J. took the view that the cases of Butterfield Vs. Forrester (1) and Davies Vs. Mann (3) (apart from the special law that applied to animals in the latter case) might probably be decided in the light of the new Act so as to award reduced damages to the plaintiff. Denning L. J. observed, as follows: - "the legal effect of the Act of 1945 is simple enough. If the plaintiff's negligence was one of the cause of his damage, he is no longer defeated altogether. He gets reduced damages. But the practical effect of the Act is wider than its legal effect. Previously, in order to mitigate the harshness of the doctrine of contributory negligence, the courts in practice sought to select, from a number of competing causes, which was the cause - the effective or the predominant cause - of the damage and to reject the rest. Now the courts have regard to all the causes and apportion the damages accordingly. This is not a change in the law as to what constitutes contributory negligence. The search in theory was always for all the causes. But it is a change in the practical application of it. " Denning L. J. again reiterated in Cork Vs. Kirby Maclean Ltd. (16), the same position and observed, as follows - "nowadays in tort we do not search, as previously, for the effective or predominant cause of the damage. We recognise that there may be many causes of one damage and we ask: What were the causes of it? What faults were there which caused the damage? Since the Act of 1945 the law says that every person who is guilty of a fault which is one of the causes of the damage must bear his proper share of responsibility for the consequences. " In Stapley Vs. Gypsum Mines Ltd. (17), Lord Asquith Struck a different note and observed, as follows: "for I am persuaded that it is still part of the law of this country that two causes may both be necessary pre-conditions of a particular result-damage to X - yet the one may, if the facts justify that conclusion, be treated as the real, substantial, direct or effective causes, and the other dismissed as at best a cause sine qua non and ignored for purpose of legal liability. This is a doctrine affirmed by your Lordships' House, and not, in my view, displaced by the Law Reform (Contributory Negligence) Act, 1945. On the contrary, the words "as the result" in sec. 1 of that statute impliedly preserve the doctrine, the assertion of which your Lordships have more than once coupled with an admonition that, if the conditions for its application occur, a judge sitting alone should assume the mantle and the mentality of a jury, and should take what is called a "broad common sense view in deciding whether one of the causes (there may be two or twenty) is the "real" cause. " We have given our earnest consideration to the matter. We are of the opinion that the Law Reform (Contributory Negligence) Act, 1945 applies only when the plaintiff cannot succeed at common law as laid down by Charlesworth in his Law of Negligence. A plain reading of the language of sub-sec. 1 is that the claim of the plaintiff in respect of damages shall not be defeated by reason of the fault of the person suffering the damage but if under the common law his claim is not liable to be defeated he need not take the assistance of the Law Reform (Contributory Negligence) Act, 1945. In Johnson Vs. Tennent Brothers (18), the case decided by the Court of Appeals in England in 1954, it has been held that: - "it is therefore inappropriate to apply the provisions of the Act where the contribution of one or other party is properly to be assessed at 100 per cent, and impracticable to bring those provisions into operation unless some appreciable or fairly substantial portion of the blame, at any rate not less than ten per cent, can be attributed to one party. " We are, therefore, of opinion that in the circumstances of the case, the Law Reform (Contributory Negligence) Act is not applicable. ;