October 28, 2021

Negligence under Law of Torts

law of torts

Negligence under Law of Torts

Negligence as a tort has evolved from the English law and accepted by the Indian law as a substantially important tort. In order to prove that an act was negligent, it is necessary to prove all the essentials namely duty, breach of duty, damages and actual and proximate cause.

Essentials of negligence

  • The defendant owes a duty of care to the plaintiff;
  • The defendant made a breach of that duty; and
  • The plaintiff suffered damage as a consequence thereof.

i) The defendant owes a duty of care to the plaintiffIt means a legal duty rather than a mere moral, religious or social duty. There is no general rule of law defining such duty. It depends in each case whether a duty exists.

e.g- A purchased a bottle of ginger beer from a retailer for the appellant. She consumed that and seriously suffered in her health. She found some snail at the bottom of the bottle. She sued for compensation. The defendant pleaded that he did not owe any duty of care towards the plaintiff. The House of Lords held that the manufacturer owed her a duty to take care that the bottle did not contain any noxious matter, and that he would be liable on the breach of the duty.

e.g-  The plaintiff with a package was trying to board a moving train. Two servants of the defendant came to help her. One of them pushed her from the back. At this moment the package fell on the rail track. The package contained fireworks and it exploded. The plaintiff was injured. She sued the defendants alleging negligence on the part of their servants. It was held that she could not recover. Cardozo CJ said, the conduct of the defendant’s servant was not wrong. Relatively to her it was not negligence at all.

Duty depends on reasonable foreseeability of injury- If at the time of omission, the defendant could reasonably foresee injury to the plaintiff, he owes a duty to prevent that injury and failure to do that makes him liable.

No liability when injury is not foreseeable- The manageress of the defendant Corporation tea-rooms permitted a picnic party. Two members of the picnic party were carrying a urn of tea through a passage. There were some children buying sweets and ice-cream. Suddenly, one of the persons lost his grip and the children including Eleanor Muir were injured. It was held that the manageress could not anticipate that such an event would happen as a consequence of tea urn being carried through the passage, and, therefore, she had no duty to take precautions against the occurrence of such an event.

Reasonable foreseeability does not mean remote possibility- A batsman hit a ball and the ball went over a fence and injured a person on the adjoining highway. This ground had been used for about 90 years and during the last 30 years, the ball had been hit in the highway on about six occasions but no one had been injured. The Court of Appeal held that the defendants were liable for negligence. But the House of Lords held that the defendants were not liable on the basis of negligence.

Duty of care – The defendant boarded a train which had just started moving but kept the door of the carriage open. The door opened outside, and created a danger to those standing on the platform. The plaintiff, a porter, who was standing on the edge of the platform was hit by the door and injured. It was held that the defendant was liable because a person boarding a moving train owed a duty of care to a person standing near it on the platform.

ii) Breach of duty – Breach of duty means non-observance of due care which is required in a particular situation. The law requires taking of two points into consideration to determine the standard of care required: (a) the importance of the object to be attained, (b) the magnitude of the risk, and (c) the amount of consideration for which services, etc. are offered.

(a) The importance of the object to be attained –

Due to construction of a canal by the state government, all the trees of the plaintiff’s orchard died. The plaintiff alleged that the government due to negligence did not cement the floor. It was held that the construction of canal was of great importance and to not cementing the floor was not negligence from the state government.

(b) The magnitude of risk –

A minor boy came in contact with overhead electric wire which had sagged to 3 feet above the ground, got electrocuted thereby and received burn injuries. The Electricity Board had a duty to keep the overhead wire 15 feet above the ground. The Board was held liable for the breach of its statutory duty.

(c) The amount of consideration for which services, etc. are offered –

the question of liability of a five star hotel arose to a visitor, who got seriously injured when he took a dive in the swimming pool. It was observed that there is no difference between a five star hotel owner and insurer so far as the safety of the guests is concerned. It was also observed, a five star hotel charging high from its guests owes a high degree of care as regards quality and safety of its structure and services it offers and makes available.

iii) The plaintiff suffered damage – It is also necessary that the defendant’s breach of duty must cause damage to the plaintiff. The plaintiff has also to show that the damage thus caused is not too remote a consequence of the defendant’s negligence.

Res ipsa loquitur- It means ‘the things itself speaks’. When the accident explains only one thing and that is that the accident could not ordinarily occur unless the defendant had been negligent, the law raises a presumption of negligence on the part of the defendant. Soon after parted with her children in a narrow street, a lady saw a lorry violently running down the narrow street. When told by some bystander that a child answering the description of one of her children had been injured, she suffered a nervous shock which resulted in her death. The defendant was held liable.

Contributory negligence- When the plaintiff by his own want of care contributes to the damage caused by the negligence or wrongful conduct of the defendant, he is considered to be guilty of contributory negligence. This is a defence in which the defendant has to prove that the plaintiff failed to take reasonable care of his own safety and that was a contributing factor to harm.

e.g- The conductor of an overcrowded bus invited passengers to travel on the roof of the bus. The driver ignored the fact that there were passengers on the roof and tried to overtake a cart. As a result, a passenger was hit by a branch of tree, fell down, received injury and died. It was held that both the driver and the conductor were negligent towards the passengers, there was also contributory negligence on the part of the passengers including the deceased, who took the risk of travelling on the roof of the bus.

e.g- The Delhi High Court has held that a pedestrian who tries to cross a road all of a sudden and is hit by a moving vehicle, is guilty of contributory negligence.

Doctrine of alternative danger –There may be certain circumstances when the plaintiff is justified in taking some risk where some dangerous situation has been created by the defendant. The plaintiff might become nervous by a dangerous situation created by the defendant and to save his person or property, he may take an alternative risk. If in doing so, the plaintiff suffered any damage, he will be entitled to recover from the defendant.

e.g-The plaintiff was a passenger of defendant’s coach. The coach was driven so negligently that the plaintiff jumped off the bus fearing an accident and broke his leg. It was held that the plaintiff would be entitled to recover.

Due to the negligence on the part of the defendants, a truck belonging to them caught fire. One of the occupants, Navneetlal, jumped out to save himself from the fire, be struck against a stone lying by the roadside and died. The defendants were held liable.

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