Blame Game Contributory Negligence
Blame Game Contributory Negligence
Blame Game Contributory Negligence
Negligence
Rommel J. Casis*
I. INTRODUCTION.......................................................................... 955
II. THE APPLICATION OF CONTRIBUTORY NEGLIGENCE................ 957
A. Mitigation of Damages
B. Not a Bar to Recovery
III. HOW THE COURTS DETERMINE CONTRIBUTORY
NEGLIGENCE ............................................................................... 959
A. Jurisprudential Definitions and Standards
B. Contributory Negligence Versus Last Clear Chance
IV. TWO-STEP PROCESS FOR DETERMINING CONTRIBUTORY
NEGLIGENCE ............................................................................... 972
A. Establishing the Negligence of Both Parties
B. Applying the Test for Proximate Causation
V. CONCLUSION .............................................................................. 977
I. INTRODUCTION
The concept of contributory negligence is important in quasi-delict cases because
it determines whether or not a plaintiff can recover damages. 1 Under
Philippine law, if the plaintiff is guilty of contributory negligence, the
amount of damages he or she can recover will be reduced. 2 Thus, the
* ’10 LL.M., with honors, Columbia Law School; ’95 LL.B., with honors, University
of the Philippines College of Law. The Author is currently an Assistant Professor at
the University of the Philippines College of Law. He teaches Torts and Damages,
Agency and Partnership, Credit Transactions, Land Titles and Deeds, Obligations
and Contracts, Transportation Law and Public Utilities, and Supervised Legal
Research. He previously worked for six years as an Associate in the Manila office of
Baker McKenzie, where he engaged in corporate law practice.
1. See Rakes v. Atlantic, Gulf and Pacific Co., 7 Phil. 359, 375 (1907).
2. An Act to Ordain and Institute the Civil Code of the Philippines [CIVIL CODE],
Republic Act No. 386, art. 2179 (1950) & ROMMEL J. CASIS, ANALYSIS OF
LAWS AND JURISPRUDENCE ON TORTS AND QUASI-DELICTS 254 (2012)
956 ATENEO LAW JOURNAL [vol. 63:955
A. Mitigation of Damages
The Civil Code provides for the consequences of contributory negligence in
two places. The first is found in Article 2179 in the chapter on quasi-delicts.
It provides that
[w]hen the plaintiff’s own negligence was the immediate and proximate
cause of his [or her] injury, he [or she] cannot recover damages. But if his
[or her] negligence was only contributory, the immediate and proximate cause of
the injury being the defendant’s lack of due care, the plaintiff may recover
damages, but the courts shall mitigate the damages to be awarded.6
Thus, a case for quasi-delict with contributory negligence on the part of
the plaintiff has the effect of mitigating or reducing the amount of damages
he or she is entitled to in case of a successful suit. 7 This Article also
demonstrates the importance of determining whether the negligence of the
plaintiff is the proximate cause of the injury or if it only constitutes
contributory negligence. If the negligence of the plaintiff is the proximate
cause, then he or she cannot recover damages; but if his or her negligence is
only contributory, then he or she can still recover reduced damages.8 To be
able to apply this rule justly, the standard for determining whether the
plaintiff’s negligence is the proximate cause or contributory negligence must
be clear. The two concepts must be clearly distinguishable.
The second time that contributory negligence is mentioned in the Civil
Code is on the chapter on actual or compensatory damages where, “[i]n
quasi-delicts, the contributory negligence of the plaintiff shall reduce the damages that
he [or she] may recover.”9
Its location in the Civil Code clarifies that only actual or compensatory
damages should be affected by contributory negligence. Thus, the amount of
10. 57B AM. JUR. 2D Negligence § 799 (2018) (citing Wareing v. Falk, 182 Ariz. 495,
497 (Az. Ct. App. 1995) (U.S.) & Laws v. Webb, 658 A.2d 1000, 1004 (1995)
(U.S.)).
11. 57B AM. JUR. 2D Negligence § 799 (citing Ridgeway v. CSX Transp., Inc., 723
So. 2d 600, 606 (1998) (U.S.); Massengale v. Pitts, 737 A.2d 1029, 1032 (D.C.
Ct. App. 1999) (U.S.); Hapner v. State, 699 N.E.2d 1200, 1205 (Ind. Ct. App.
1998) (U.S.); Bd. of County Commissioners of Garrett Cty. v. Bell Atlantic-
Maryland, Inc., 346 Md. 160, 182 (Md. Ct. App. 1997) (U.S.); & Love v.
Singleton, 550 S.E.2d 549, 551 (N.C. Ct. App. 2001) (U.S.)).
12. 57B AM. JUR. 2D Negligence § 799 (citing Brown v. Smalls, 481 S.E.2d 444, 450-
51 (S. Ct. App. 1997) (U.S.)) (emphasis supplied).
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may not be proper because of the difference between common law and the
Philippine civil law concept of contributory negligence.
Another problem with this definition is that it identifies contributory
negligence as negligence that contributes to the legal cause — a term that can
be interpreted as the equivalent of proximate cause. 17 Thus, defining
contributory negligence as contributing to the legal cause is confusing
because it can be interpreted to mean that contributory negligence is part of
proximate cause. How then can it be distinguished from proximate cause? As
mentioned earlier, the application of Article 2179 requires that the two
concepts must be clearly distinguishable.
It can be argued that in a case where this definition is initially invoked
and where the injured party may have been guilty of some negligence, the
courts may still be unwilling to impute negligence on the part of the injured.
Perhaps the high standard is preferred by courts when they are disinclined to
mitigate the amount of damages the victim is entitled to.
As earlier mentioned, the definition was first used in the case of
Valenzuela, wherein the petitioner was severely injured when the vehicle
driven by the respondent plowed into her.18 As a defense, the respondent
claimed that it was the negligence of the petitioner that led to her injury, or
in the alternative, there was — at the very least — contributory negligence
on her part. 19 The petitioner’s negligence would have been her act of
parking on a busy street in a no-parking zone.20 It was not mentioned in the
case, but it may be inferred that she was standing on the street and not on
the sidewalk when the accident happened.21 But the Court excused her from
any negligence and said that she exercised “the standard reasonably dictated
by the emergency.” 22 Perhaps the definition was used by the Court to
provide a very high standard for the application of contributory negligence.
This high standard may have been motivated by the desire to allow the
petitioner to recover fully considering the gravity of the injury she suffered
as graphically narrated by the Court.
But the high standard notwithstanding, this has not prevented the Court
from finding parties guilty of contributory negligence in a few cases.23
In Philippine National Construction Corporation v. Court of Appeals, 24
motorists were injured when their vehicle turned turtle because sugar canes
that were managed by the petitioner were left on the road.25 The Court
affirmed the lower court’s ruling that the driver of a vehicle was guilty of
contributory negligence because he drove at an unreasonable speed.26
In Estacion v. Bernardo,27 the respondent was injured while he “hung or
stood on the left rear carrier of the [jeepney]” when the petitioner’s vehicle
hit the rear portion of the jeepney.28 The Court agreed with the petitioner
that the respondent’s act of standing on the rear carrier of the vehicle,
“exposing himself to bodily injury[,] [was] in itself negligence on his part.”29
It ruled that the lower courts erred when they failed to consider that the
respondent was also guilty of contributory negligence.30
In Vergara v. Sonkin,31 the respondents complained about water coming
from the petitioner’s property, which was “leaking into their bedroom
through the partition wall, causing cracks, as well as damage, to the paint and
the wooden parquet floor.”32 The Court agreed with the appellate court that
while the proximate cause of the damage sustained by the respondents was
the “act of the [petitioners] in dumping gravel and soil onto their property,”
the respondents were “nevertheless guilty of contributory negligence for not
only failing to observe the two-meter setback rule under the National
23. See, e.g., Philippine National Construction Corporation, 467 SCRA at 581-82, 584
& Estacion, 483 SCRA at 234.
24. Philippine National Construction Corporation v. Court of Appeals, 467 SCRA
569 (2005).
25. Id. at 574-75.
26. Id. at 584-85.
27. Estacion v. Bernardo, 483 SCRA 222 (2006).
28. Id. at 226.
29. Id. at 234.
30. Id.
31. Vergara v. Sonkin, 757 SCRA 442 (2015).
32. Id. at 446.
962 ATENEO LAW JOURNAL [vol. 63:955
Building Code, but also for disregarding the legal easement constituted over
their property.”33
In Ngo Sin Sing v. Li Seng Giap & Sons, Inc.,34 a building owned by one
of the respondents was damaged as a result of an excavation made on the
petitioner’s lot by its contractor.35 The Court found that the respondent’s
negligence must have necessarily contributed to the sagging of the
building.36 It agreed with the trial court’s finding that they were “equally
negligent in not providing the necessary foundation and reinforcement to
accommodate or support the additional floors[.]”37 Needless to say, agreeing
with the trial court’s conclusion that the respondent was equally negligent is
problematic as this contradicts the ruling that the petitioner’s negligence was
the proximate cause. If they are equally negligent, how can one be the
proximate cause and the other, only contributorily negligent?
In Allied Banking Corporation v. Bank of the Philippine Islands, 38 the
petitioner collecting bank was found guilty of contributory negligence
“when it accepted for deposit a post-dated check[,]” even if the drawee
defendant bank cleared the check. 39 The Court held that the proximate
cause was the negligence of the defendant in clearing the check.40 But the
Court also found contributory negligence on the part of the collecting bank
because of its acceptance of the check for deposit “despite the one year
postdate written on its face[,]” which was a “clear violation of established
banking regulations and practices.”41
In Philippine National Bank v. Cheah Chee Chong, 42 the respondent
spouses were swindled when they deposited a check for a stranger who
withdrew a portion of the amount before the clearing period.43 The Court
found that, while the negligence of the bank was the proximate cause,44 the
respondents were guilty of contributory negligence.45 It explained that the
respondent “failed to observe caution in giving her full trust in
accommodating a complete stranger and this led her and her husband to be
swindled.”46
In these cases, the Court did not explain why the identified negligent
conduct contributed as a legal cause. But it may be pointed out that in these
cases, the conduct complied with the but for test, such that the harm would
not have occurred if not for the conduct of the injured party. The but for test
determines whether a negligent act is the proximate cause.47 Specifically, it
must be an act “without which the result would not have occurred.”48 In all
these cases, the injury suffered would not have happened without the
negligence of the plaintiff. Thus, the question remains — if the negligence of
the party complies with the but for test, why is it merely contributory
negligence and not proximate cause?
as its source. 52 In this case, an employee riding the cargo train of the
petitioner was killed when the locomotive was derailed.53 The allegation was
that the victim was guilty of contributory negligence because he was not at
his assigned station when the train was derailed.54 The Court noted that such
“might have been a violation of company rules but could not have directly
contributed to his injury, as the petitioner [suggested].”55 It added that it was
“pure speculation to suppose that he would not have been injured if he had
stayed in the front car rather than at the back and that he had been killed
because he chose to ride in the caboose.”56 Thus, the Court did not find the
victim guilty of contributory negligence.57 It may be argued that in this case,
the Court did not find any negligence at all on the part of the victim.58 So
there was no contributory negligence because there was no negligence at all.
Similarly in Cayao-Lasam v. Ramolete,59 the patient, after going through a
medical procedure performed by the petitioner, “was found to have a
massive intra-abdominal hemorrhage and a ruptured uterus.”60 The Court
found that no negligence can be attributed to the petitioner; the immediate
cause of the accident resulting in the patient’s injury was her own omission
when she did not return for follow-up check-up, in defiance of petitioner’s
orders.61 It held that the “immediate cause of [patient’s] injury was her own
act; thus, she cannot recover damages from the injury.”62 Hence, the Court
found the patient’s conduct as the proximate cause and not merely
contributory negligence. 63 In this case, the concept of contributory
negligence was irrelevant considering that only one party was found
negligent. Therefore, there was no reason to determine which negligent act
was proximate or merely contributory.
51. Ma-ao Sugar Central Co., Inc. v. Court of Appeals, 189 SCRA 88 (1990).
52. Id. at 93 (citing MORENO, supra note 49, at 210).
53. Ma-ao Sugar Central Co., Inc., 189 SCRA at 89-90.
54. Id. at 93.
55. Id.
56. Id.
57. Id.
58. See Ma-ao Sugar Central Co., Inc., 189 SCRA at 93.
59. Cayao-Lasam v. Ramolete, 574 SCRA 439 (2008).
60. Id. at 444-45.
61. Id. at 459.
62. Id. at 460.
63. Id. at 459.
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64. National Power Corporation v. Heirs of Noble Casionan, 572 SCRA 71 (2008).
65. Id. at 82.
66. See Heirs of Noble Casionan, 572 SCRA at 83-85.
67. Philippine National Railways v. Brunty, 506 SCRA 685 (2006).
68. Id. at 689.
69. Id. at 700.
70. Id. at 70o-01.
71. See Philippine National Railways, 506 SCRA at 701-02.
72. Dela Cruz v. Octaviano, 833 SCRA 238, 258 (2017); Ma-ao Sugar Central Co.,
Inc., 189 SCRA at 93 (citing Ocampo v. Capistrano, Civil Case No. 47067-R
(CA 1980) (unreported)); Philippine National Railways, 506 SCRA at 700;
Estacion, 483 SCRA at 235; & Añonuevo v. Court of Appeals, 441 SCRA 24,
44 (2004).
73. See Añonuevo, 441 SCRA at 44-45; Ma-ao Sugar Central Co., Inc., 189 SCRA at
93; Philippine National Railways, 506 SCRA at 700; & Estacion, 483 SCRA at
234-35.
966 ATENEO LAW JOURNAL [vol. 63:955
One problem about this definition is that it is not clear how “an act that
brought about [the] injuries”74 is different from proximate cause. Furthermore,
the application of this definition is limited to cases where there are warning
or signs of impending danger. This danger may come from the circumstances
or brought about by the negligence of the defendant. If it is the latter, this
means the negligence of the plaintiff comes after the negligence of the
defendant. Should this be the case, then the application of this definition can
come into conflict with the doctrine of last clear chance, which would have
made the subsequent negligence of the plaintiff the proximate cause and not
simply contributory negligence.
The case where the Court appeared to have applied this definition is in
National Power Corporation. 75 In this case, the respondents’ son was
electrocuted when the tip of the bamboo pole that he was carrying touched
one of the dangling high tension wires of the petitioner.76 The Court found
no contributory negligence on the part of the victim.77 The Court held that
along the trail where the incident happened, “there were no warning signs
to inform passersby of the impending danger to their lives should they
accidentally touch the high tension wires.” 78 Therefore, he cannot be
considered to have disregarded the warning signs as there were none.
But curiously, the Court also said that the trail where the victim was
electrocuted “was regularly used by members of the community.”79 If that
were the case, the victim should have been familiar with the danger. In one
case, the Court ruled that “[t]he presence of warning signs could not have
completely prevented the accident [because] the only purpose of said signs
was to inform and warn the public of the presence of [the danger].”80 In that
74. Dela Cruz, 833 SCRA at 258 (emphasis supplied); Ma-ao Sugar Central Co., 189
SCRA at 93 (citing Ocampo, Civil Case No. 47067-R (unreported)) (emphasis
supplied); Philippine National Railways, 506 SCRA at 700 (emphasis supplied);
Estacion, 483 SCRA at 235 (emphasis supplied); & Añonuevo, 441 SCRA at 44
(emphasis supplied).
75. Heirs of Noble Casionan, 572 SCRA at 82.
76. Id. at 75-76.
77. Id. at 80.
78. Id. at 83.
79. Id.
80. Phil. Long Distance Telephone Co., Inc. v. Court of Appeals, 178 SCRA 94,
105 (1989).
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case, the injured party already knew of the presence of said danger and was,
therefore, held responsible for his own injuries.81
4. Causal Link
A few cases require that “to prove contributory negligence, it is still
necessary to establish a causal link, although not proximate, between the
negligence of the party and the succeeding injury.” 82 This means that
contributory negligence causes but is not the proximate cause of the injury.
But it is not clear what kind of cause it is.83 One possibility is that it is a
remote cause,84 but there is no jurisprudential support for this.
In Fuentes v. National Labor Relations Commission,85 the petitioner was
dismissed for gross negligence by her employer. 86 She argued that there
was contributory negligence on the part of her employer. 87 The Court
disagreed and held that the petitioner could not invoke her employer’s
alleged contributory negligence “as there was no direct causal connection
between the negligence of the [employer] ... and the loss complained of.”88
But a direct causal connection implies proximate causation. Is the Court
applying the standard for proximate cause to establish mere contributory
negligence? Or is the Court saying there can be a causal connection even
though such cause is not the proximate cause? This case, therefore, raises
more questions than it answers.
In Dela Cruz v. Octaviano, 89 the Court ruled that “the causal link
between the alleged negligence of the tricycle driver and respondent Renato
was not established.”90 It appears that, in this case, Renato rode at the back
81. Id.
82. Dela Cruz, 833 SCRA at 258; Philippine National Railways, 506 SCRA at 700; &
Añonuevo, 441 SCRA at 44. See also Fuentes v. National Labor Relations
Commission, 166 SCRA 752, 757 (1988).
83. CASIS, TORTS AND QUASI-DELICTS, supra note 2, at 257.
84. Id. at 257-58. A remote cause is “a cause which would have been a proximate
cause, had there been no efficient intervening cause after it and prior to the
injury.” Id. at 307.
85. Fuentes v. National Labor Relations Commission, 166 SCRA 752 (1988).
86. Id. at 755.
87. Id. at 756.
88. Id. at 757.
89. Dela Cruz v. Octaviano, 833 SCRA 238 (2017).
90. Id. at 259.
968 ATENEO LAW JOURNAL [vol. 63:955
100. Allied Banking Corporation, 692 SCRA at 196 (citing Bustamante v. Court of
Appeals, 193 SCRA 603, 611 (1991)).
101. Id. at 196-97 (citing J. CEZAR S. SANGCO, PHILIPPINE LAW ON TORTS AND
DAMAGES 77 (1993 ed.)).
102. Phoenix Construction, Inc. v. Intermediate Appellate Court, 148 SCRA 353
(1987).
103. Id. at 368-69 (citing Picart v. Smith, 37 Phil. 809 (1918); KEETON, ET AL., supra
note 16, at 464; Rakes, 7 Phil. at 370 & 374; Malcolm M. MacIntyre, The
Rationale of Last Clear Chance, 53 HARV. L. REV. 1225, 1125 & 1242 (1940); &
970 ATENEO LAW JOURNAL [vol. 63:955
Fleming James, Jr., Last Clear Chance: A Transitional Doctrine, 47 YALE L.J. 704,
704 & 708 (1938)).
104. Tiu v. Arriesgado, 437 SCRA 426 (2004).
105. Id. at 444 (citing Phoenix Construction, Inc., 148 SCRA at 369).
106. Allied Banking Corporation, 692 SCRA at 197.
107. Id. at 199.
108. Id.
109. Bank of America NT & SA v. Philippine Racing Club, 594 SCRA 301 (2009).
110. Philippine Bank of Commerce v. Court of Appeals, 269 SCRA 695 (1997).
111. Bank of America NT & SA, 594 SCRA at 313-16 & Philippine Bank of Commerce,
269 SCRA at 707-08 & 710-11.
112. Philippine National Bank v. F.F. Cruz and Co., Inc., 654 SCRA 333 (2011).
113. Id. at 336-37.
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by the appellate court and Supreme Court, yet both courts found the
petitioner to be guilty only of contributory negligence.114
In McKee v. Intermediate Appellate Court, 115 the Court even used
contributory negligence to define last clear chance.116 It said that
[l]ast clear chance is a doctrine in the law of torts which states that the
contributory negligence of the party injured will not defeat the claim for
damages if it is shown that the defendant might, by the exercise of
reasonable care and prudence, have avoided the consequences of the
negligence of the injured party. In such cases, the person who had the last
clear chance to avoid the mishap is considered in law solely responsible for
the consequences thereof.117
Considering that the original purpose of the last clear chance doctrine is
to overcome the bar to the claim for damages of a negligent plaintiff — and
such bar does not exist in this jurisdiction — the relationship between such
doctrine and this jurisdiction’s concept of contributory negligence should be
clarified.
As explained briefly below, the doctrine of last clear chance may be used
as a test for proximate causation.118 Thus, said doctrine and contributory
negligence can be applied by the courts in the same case if the former is used
only as the test for proximate causation.
known risk, and whether the former has exercised proper caution or not is
immaterial. In other words, it is based on voluntary consent, express or
implied, to accept danger of a known and appreciated risk; it may sometimes
include acceptance of risk arising from the defendant’s negligence, but one does not
ordinarily assume risk of any negligence which he [or she] does not know
and appreciate. As a defense in negligence cases, therefore, the doctrine
requires the concurrence of three elements, namely: (1) the plaintiff must
know that the risk is present; (2) he [or she] must further understand its
nature; and (3) his [or her] choice to incur it must be free and voluntary.
According to [William Lloyd] Prosser[,] ‘[k]nowledge of the risk is the
watchword of assumption of risk.’120
Thus, the negligence of the plaintiff may also fall under the defense of
assumption of risk. By voluntarily exposing himself or herself to risk of
injury, it may be said that he or she is also being negligent. Similarly, if the
negligence of the defendant is the proximate cause, is it not that this
assumption of risk by the plaintiff may also constitute contributory
negligence?
However, the negligence of the plaintiff cannot be both contributory
negligence and assumption of risk because the effect of the latter is to bar the
plaintiff from recovering, whereas the former only requires that the amount
of damages be mitigated.
Thus, the doctrine of assumption of risk should only apply if the
negligence of the plaintiff is deemed the proximate cause of the accident.
120. Id. at 355-56 (citing McGeary v. Reed, 105 Ohio App. 111, 116-17 (Ohio Ct.
App. 1957) (U.S.)); Bull Steamship Lines v. Fisher, 196 Md. 519, 524 (Md.)
(U.S.); Turpin v. Shoemaker, 427 S.W.2d 485, 489 (1968) (Mo.) (U.S.);
KEETON, ET AL., supra note 16, at 487; & KEETON, ET AL., supra note 16, at 487
(citing Cincinnati, New Orleans & Texas Pacific Railway Co. v. Thompson,
236 F. 1, 9 (6th Cir. 1916) (U.S.))) (emphasis supplied).
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the proximate cause does not necessarily mean it is the sole proximate cause.
Case law allows for negligent acts of two different actors to constitute the
proximate cause although each separately constitutes a proximate cause.127
Continuing from the first of the two possible results aforementioned, if
the plaintiff’s negligence is indeed a proximate cause, there are two scenarios:
(a) The plaintiff’s negligence is a proximate cause, but the
defendant’s negligence is not a proximate cause; or
(b) The plaintiff’s negligence is a proximate cause, and the
defendant’s negligence is also a proximate cause.
In scenario (a), Article 2179 prescribes that the plaintiff is barred from
recovery.128 Under scenario (b), there are two options on the part of the
courts:
(i) The plaintiff is barred from recovery based on Article 2179;129 or
(ii) The plaintiff may recover because the negligence of the
defendant is graver than that of the plaintiff.
The first option should be chosen by the court if it finds that the nature
or gravity of the negligence of the plaintiff is equal or greater than that of the
defendant. The second option should be chosen if the negligence of the
plaintiff is less than or not as grave as that of the defendant.
Jurisprudence teaches that in the case of two negligent parties, the
negligence of one may outweigh the negligence of the other based on
certain considerations. 130 For example, between a negligent bank and a
negligent account holder, courts would invariably consider the negligence of
the bank graver because of the diligence required of banks. 131
126. Vda. de Bataclán, et al., 102 Phil. at 186 (citing 57A AM. JUR. 2D Negligence §
413).
127. Far Eastern Shipping Company v. Court of Appeals, 297 SCRA 30, 83 (1998).
128. See CIVIL CODE, art. 2179.
129. Id.
130. See, e.g., Bank of the Phil. Islands v. Court of Appeals, 216 SCRA 51, 76-77
(1992) & Allied Banking Corporation, 692 SCRA at 196-97.
131. See Philippine Bank of Commerce, 269 SCRA at 708-09 (citing Metropolitan Bank
and Trust Company v. Court of Appeals, 237 SCRA 761, 767 (1994); Bank of
the Phil. Islands v. Court of Appeals, 326 SCRA 641, 657 (2000); & Bank of
America NT & SA, 594 SCRA at 309 (citing Samsung Construction Company
Philippines, Inc. v. Far East Bank and Trust Company, Inc., 436 SCRA 402,
421 (2004)).
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Notwithstanding the fact that the injury would not have occurred without
the negligence of the account holder, the Court considered the negligence
of banks graver in nature.132 While the language of the Court in such cases is
to classify the negligence of the account holder as being only contributory and
never proximate,133 the fact of the matter is that nature of the negligence of
the plaintiff complies with the test for proximate cause.134 But perhaps as a
matter of policy or some form of moral calculation, the Court does not
consider such negligence of the plaintiff as sufficient to justify being totally
barred from recovery.
Needless to say, what constitutes a less grave or graver form of
negligence is discretionary on the part of the courts.135 But this is nothing
new and has been the practice of courts since time immemorial.
If the court finds that it could not make a determination as to which
negligent act is graver, it may choose to apply the doctrine of last clear
chance. On the assumption that the negligent acts of the plaintiff and
defendant either started or ended at different times, the court can determine
that the negligent act that is later in time as the proximate cause. If this is the
negligence of the defendant, then the negligence of the plaintiff is
contributory negligence. If the last clear chance points to the plaintiff’s
negligence as the proximate cause, then he or she is barred from recovery.
This procedure also clarifies that there are cases where the negligence of
the plaintiff passes the test for proximate cause, but by reason of policy or
exercise of discretion, the court chooses to characterize such negligence only
as contributory.136
132. See Philippine Bank of Commerce, 269 SCRA at 709-10 & Bank of America NT &
SA, 594 SCRA at 313-14.
133. See, e.g., Philippine Bank of Commerce, 269 SCRA at 710 & Bank of America NT
& SA, 594 SCRA at 316.
134. See CASIS, TORTS AND QUASI-DELICTS, supra note 2, at 316. The but for test
determines if the negligent act is the proximate cause. If the resulting harm
would not have occurred without the act of the injured party, it is considered a
proximate cause. CASIS, TORTS AND QUASI-DELICTS, supra note 2, at 316
(citing Vda. de Bataclán, et al., 102 Phil. at 186).
135. Id. at 118.
136. See, e.g., Philippine National Construction, 467 SCRA at 584-85; Estacion, 483
SCRA at 234-35; Vergara, 757 SCRA at 454-55; Ngo Sin Sing, 572 SCRA at 34;
Allied Banking Corporation, 692 SCRA at 201; & Cheah Chee Chong, 671 SCRA
at 64.
976 ATENEO LAW JOURNAL [vol. 63:955
137. See Rakes, 7 Phil. at 375 & Heirs of Noble Casionan, 572 SCRA at 82 (citing Syki
v. Begasa, 414 SCRA 237, 244 (2003)).
138. See Dela Cruz, 833 SCRA at 258; Philippine National Railways, 506 SCRA at
700; Añonuevo, 441 SCRA at 44; & Fuentes, 166 SCRA at 757.
139. Rakes v. Atlantic, Gulf and Pacific Co., 7 Phil. 359 (1907).
140. Id. at 375 (emphasis supplied).
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absence of a helmet did not contribute to the collision, but it did contribute
to the damage he suffered. On the other hand, if his negligence consisted in
violating the rule requiring motorcycles to be registered, he is not guilty of
contributory negligence. Whether his motorcycle was registered or had the
necessary stickers is in no way connected to the injury.
Thus, in cases where the plaintiff’s negligence is not the proximate
cause, such negligence will be considered as contributory negligence only if
it is connected to the injury.
V. CONCLUSION
The foregoing discussion involving current jurisprudence underscores the
need for a more accurate definition of contributory negligence. Although
the procedure outlined in the preceding section corresponds to the currently
flawed definitions offered, an accurate definition is necessary to reflect
reality.
The absence of a clear definition for contributory negligence renders it
an empty concept — one which allows the courts to reinvent its meaning in
every case. The uncertainty in the concept has given the courts plenary, if
not, arbitrary authority to determine the existence of contributory
negligence. Without clear boundaries defining the concept, the possibility of
unjust or unreasonable rulings continuously looms as a possibility.
Contributory negligence may simply be defined as negligence on the
part of the plaintiff that is connected to his or her injury but, on the basis of
fairness, does not rise to the degree to which he or she should be completely
barred from recovering.
It would have been far simpler to define contributory negligence as
negligence on the part of the plaintiff, which does not amount to the
proximate cause of the injury. Unfortunately, although this definition
follows the Civil Code, the current state of jurisprudence does not support
this definition. Currently, jurisprudence does not clearly differentiate the two
concepts. In many cases, the negligence of both plaintiff and defendant
would pass the jurisprudential tests for proximate causation. So what is the
Court’s basis for choosing the defendant’s negligence as the proximate cause
and the plaintiff’s negligence as contributory negligence? Perhaps it is simple
fairness. Given the circumstances, would it be fair to bar the negligent
plaintiff from recovering? Or would it be fair to require the defendant to pay
full damages to negligent plaintiff? The Court has held that “[t]he underlying
precept on contributory negligence is that a plaintiff who is partly
responsible for his [or her] own injury should not be entitled to recover
damages in full but must bear the consequences of his [or her]
978 ATENEO LAW JOURNAL [vol. 63:955
own negligence.”141 Thus, “the defendant must [ ] be held liable only for the
damages actually caused by his [or her] negligence.”142
On the question of determining who to blame, perhaps it is time to
abandon the fiction that the courts can determine the actual cause of an
injury. Perhaps it is time to admit that in cases of quasi-delicts, the
determination of proximate cause and contributory negligence is essentially a
policy question 143 and not a factual consideration. In other words, a
negligent act is the proximate cause for the law says that, given a set of facts,
such act is the proximate cause and not necessarily because such act, in fact,
caused the injury. Perhaps it is time to admit that what the courts are
determining is not the actual cause but merely the cause by operation of law.
Courts after all do not have supernatural powers to divine the true cause of
events; they can only define the meaning of legal concepts and apply them to
a given set of facts. The courts are not a source of absolute truth but merely,
to the extent it is humanly possible, administrators of just rulings in questions
of liability for harm.
When the courts say that the defendant’s negligence is the proximate
cause, it is not necessarily saying that such negligence caused the injury,
which the plaintiff’s negligence merely contributed to. In many cases, if the
standard applied to the defendant were applied to the plaintiff, they would
be found equally responsible. In reality, the courts are simply weighing
whether it would be fair to completely bar the plaintiff from recovering
damages because his or her negligence contributed to his or her injury.
141. Heirs of Noble Casionan, 572 SCRA at 82 (citing Syki, 414 SCRA at 244).
142. Syki, 414 SCRA at 244 (citing SANGCO, supra note 101, at 55).
143. See CASIS, TORTS AND QUASI-DELICTS, supra note 2, at 291.