Negligence is the breach of a legal duty to take care which results in damage, undesired by the defendant to the plaintiff.
In our regular lives negligence highlights the meaning of carelessness, or the quality or state of being negligent but according to the legal sense negligence leads to the non fulfilment of basic care which a performer should take as a reasonable man in all the situations.
Primary factors to consider in ascertaining whether the person’s conduct lacks reasonable care are the foreseeable likelihood that the person’s conduct will result in harm, the foreseeable severity of any harm that may ensue, and the burden of precautions to eliminate or reduce the risk of harm.Someone who suffers loss caused by another’s negligence may be able to sue for damages to compensate for their harm. Such loss may include physical injury, harm to property, psychiatric illness, or economic loss. The law on negligence may be assessed in general terms according to a five-part model which includes the assessment of duty, breach, actual cause, proximate cause, and damages.
For illustration , A store owner who fails to put up a “Caution: Wet Floor” sign after mopping up a spill.
Definition of Negligence under Law of Torts
According to Winfield and Jolowicz “Negligence is the breach of a legal duty to take care which results in damage, undesired by the defendant to the plaintiff.”
Lord Wright states that “Negligence means more than headless or careless conduct, whether in commission or omission; it properly connotes the complex concept of duty, breach, and damage thereby suffered by the person to whom the duty was owed.”
According to Charlesworth & Percy, Negligence, in current forensic speech, negligence has three meanings. These are : (i) a state of mind, in which it is opposed to intention; (ii) careless conduct; and (iii) the breach of duty to take care that is imposed by either common or statute law. All three meanings are applicable in different circumstances but anyone of them does not necessarily exclude the other meanings.
In Blyth v. Birmingham WaterWorks Co. (1856)ALDERSON, B. defined negligence as, negligence under Law of Torts is the omission to do something which a reasonable man would do, or doing something which a prudent or reasonable man would not do.
According to winfield negligence as a tort is the breach of legal duty to take care which results in damage, undesired by the dependent to the plaintiff.
In Municipal Corporation of Delhi v. Subhagwanti, a clock tower situated in the heart of the city, i.e., Chandni Chowk, Delhi collapsed causing the death of a number of persons.
The structure was 80 years old whereas its normal life was 40-45 years. The Municipal Corporation of Delhi, which was having control of the structure, had obviously failed to get the periodical check up and the necessary repairs done. The defendant Corporation was, therefore, held liable to pay compensation for the consequences of the collapse of the structure.
Foreign matter left inside after surgery
In Nihal Kaur v. Director, P.G.IChandigarh, scissors were left in the body of a patient during operation. Then his condition worsened and he died. Scissors were recovered from the ashes after cremation. Compensation of Rs. 1,20,000 was awarded to the dependents of the deceased.
Negligence as a Tort
The term ‘negligence’ is used for the purpose of fastening the defendant with liability under the Civil Law and, at times, under the Criminal Law. Generally speaking, negligence is the amount of damages incurred which is determinative of the extent of liability in tort; but in criminal law it is not the amount of damages but the amount and degree of the negligence that is determinative of liability.
Torts are legal wrongs that one party suffers at the hands of another. Negligence is a form of tort which evolved because some types of loss or damage occur between parties that have no contract between them, and therefore there is nothing for one party to sue the other over.
The test required that
1.Harm must be a reasonably foreseeable result of the defendant’s conduct
2.A relationship of proximity must exist
3. It must be fair just and reasonable to impose liability
Elements of Negligence under Law of Torts
1. Duty of care to the plaintiff
It means a legal duty rather than a mere moral, religious or social duty. The plaintiff has to establish that the defendant owed to him a specific legal duty to take care, of which he has made a breach. There is no general rule of law defining such duty. It depends in each case whether a duty exists. In Donoghue v. Stevenson, Lords Atkin said, “It is remarkable, how difficult it is to find in the English authorities statements of general application defining the relations between parties that give rise to the duty. The courts are concerned with the actual relations which come before them in actual litigation, and it is sufficient to say whether the duty exists in those circumstances.
The result is that the courts have been engaged upon an elaborate classification of duties as they exist in respect of property, whether real or personal, with further divisions as to ownership, occupation or control and distinctions based on the particular relations of the one side or the other, whether manufacturer, salesman or landlord, customer, tenant, stranger, and so on. In this way, it can be ascertained at any time whether the law recognizes a duty, but only where the case can be referred to some particular species which has been examined and classified.”
2. Breach of duty
Breach of duty means non-observance of due care which is required in a particular situation. The standard is that of a reasonable man or of an ordinarily prudent man. If the defendant has acted like a reasonably prudent man, there is no negligence. As stated by Alderson B. in Blyth v. Birmingham Waterworks Co.,
“Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do.” The law requires the caution which a prudent man would observe. “
Standard of care required
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
The law does not require greatest possible care but the care required is that of a reasonable man under certain circumstances. The law permits taking chance of some measure of risks so that in public interest various kinds of activities should go on. “As has been pointed out, if all the trains in this country were restricted to a speed of five miles an hour, there would be fewer accidents, but our national life would be intolerably slowed down. The purpose to be served, if sufficiently important, justifies the assumption of the abnormal risk.”
b) The magnitude of risk
The degree of care required varies according to each situation. What may be a careful act in one situation may be a negligent act in another. The law does not demand the same amount of care under all situations. The kind of risk involved determines the precautions which the defendant is expected to take. The position in this regard was explained by Venkataramiah, J. in Mysore State Road Transport Corporation v. Albert Disa as under,
Negligence is failure in the duty to take due care. The expression ‘due’ connotes that degree of care which a reasonable man ought to take in a given set of circumstances. What may amount to ‘negligent’ act in a particular place and occasion may not be a negligent act in another place or occasion. In deciding what care was called for by a particular situation, one useful test is to enquire how obvious the risk must have been to an ordinary prudent man.
(c) The amount of consideration for which services, etc. are offered
The degree of care depends also on the kind of services offered by the defendant and the consideration charged therefor from the plaintiff. For instance, one who purchases a glass of water from a trolley in the street for 10 or 25 paise is entitled to safe drinking water which should not ordinarily infect him. But if a person purchases a mineral water bottle for Rs. 10/- or 15/-, then he can justifiably demand a higher degree of purity.
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.
Rebuttal of the presumption of negligence
The rule of res ipsa loquitur only shifts the burden of proof and instead of the plaintiff proving negligence on the part of the defendant, the defendant is required to disprove it. If the defendant is able to prove that what apparently seems to be negligence was due to some factors beyond his control, he can escape liability.
Res ipsa Loquitur
The Latin term Res Ipsa Loquitur means “the thing speaks for itself “. which means the situation of a particular act is enough to get the idea what has happened. It is the principle that the mere occurrence of some types of accident is sufficient to imply negligence. To read more about res ipsa loquitur, click here.
Remedies for negligence under Law of Torts
The principal remedy in any case involving negligence will be an award of damages. The damage caused to the claimant must be of a type that is ‘reasonably foreseeable’. A loss is reasonably foreseeable if a reasonable man would have foreseen the type of injury, loss or damage. Proving the duty of care As a general rule it is for the claimant to prove that the defendant was in breach of the duty of care. Exceptionally the defendant will have to prove that he was not negligent. This will only occur if:
- the harm would not have normally happened if proper care were taken
- there is no other explanation for what has occurred, known as res ipsa loquitur, the thing that speaks for itself
- the defendant was in control of the situation and the victim was not.
Remoteness of Damage
Overseas Tank-ship (UK) v Morts Dock and Engineering Co (The Wagon Mound) (1961)
Facts: due to the defendant’s negligence oil was spilled and accumulated around the claimant’s wharf. The oil ignited and the wharf suffered fire damage.
Held: The defendants were held not liable for negligence under Law of Torts since, while damage to the wharf by oil pollution was foreseeable, damage by fire was not.
If the type of damage is reasonably foreseeable the defendant is liable. It is irrelevant that the defendant might not have been able to foresee its cause or its severity.
Defences against negligence under Law of Torts
In an action for negligence under Law of Torts following defences are available: –
When a tort or a wrongful action is committed by negligence on the part of both , the plaintiffs and defendants, the defendants can raise the plea of contributory negligence under Law of Torts. It was the Common law rule that anyone who by his own negligence contributed to the injury of which he complains cannot maintain an action against another in respect of it. Because, he will be considered in law to be author of his wrong.
Butterfield v. Forrester, (1809) 11 East 60;
the defendant had put a pole across a public thoroughfare in Durby, which he had no right to do. The plaintiff was riding that way at 8’O clock in the evening in August, when dusk was coming on, but the obstruction was still visible from a distance of 100 yards, he was riding violently, came against the pole and fell with the horse. It was held that the plaintiff could not claim damages as he was also negligent.
2. ACT OF GOD OR VIS MAJOR:
Act of god refers to some natural calamity such as heavy rainfall , storms ,earthquakes and volcanoes. Two conditions are essential for this defence:
1)there must be working of natural forces.
2)the occurrence must be extraordinary and not the one which could have been anticipated.
It is such a direct, violent, sudden and irresistible act of nature as could not, by any amount of human foresight have been foreseen or if foreseen, could not by any amount of human care and skill, have been resisted. Such as, storm, extraordinary fall of rain, extraordinary high tide, earth quake, etc.
In Nichols v. Marsland, (1875) LR 10 Ex.255;
the defendant had a series of artificial lakes on his land in the construction or maintenance of which there had been no negligence. Owing to an exceptional heavy rain, some of the reservoirs burst and carried away four country bridges. It was held that, the defendant was not liable as the water escaped by the act of God.
If the plaintiff has an unexpected injury owing to an unforeseen and Inevitable event, in spite of reasonable care on the part of the defendant, it is called inevitable accident. The defendant has to prove that he neither intended to injure the plaintiff nor had the means to avoid the injury by taking reasonable care. An inevitable accident is that which could not possibly, be prevented by the exercise of ordinary care, caution and skill. it means accident physically unavoidable.
In Brown v. Kendal, (1859) 6 Cussing 292;
The plaintiff’s and defendant’s dogs were fighting, while the defendant was trying to separate them, he accidentally hit the plaintiff in his eye who was standing nearby. The injury to the plaintiff was held to be result of inevitable accident and the defendant was not liable.
In Holmes v. Mather, (1875) LR 10 Ex.261, 267;
a pair of horses were being driven by the groom of the defendant on a public highway. On account of barking of a dog, the horses started running very fast. The groom made best possible efforts to control them but failed. The horses knocked down the plaintiff who was seriously injured, it was held to be an inevitable accident and the defendant was not liable.
In Stanley v. Powell, (1891) 1 QB 86;
The plaintiff and the defendant, who were members of a shooting party, went for pheasant shooting. The defendant fired at a pheasant, but the shot from his gun glanced off an oak tree and injured the plaintiff. It was held that the accident was an inevitable accident and the defendant was not liable.
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