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NEGLIGENCE[1]

Table of Contents

QUESTION BANK

Q.1. Analyse negligence as a specific tort.

Q.2. State the ingredients of the tort of negligence with the help of decided cases.

SHORT NOTES

Defenses an act of negligence.

SYNOPSIS

Definition & Ingredients of Negligence.
Existence of duty.
Breach of duty.
The burden of proof of negligence (Res ipsa loquitur)

Defenses:-

Vis- Major/act of God.
Inevitable accident.
Contributory negligence.

I] Definition And Ingredients:-

a) According to Winfield, “’ negligence’ as a tort is the breach of the legal duty to take care which results in Damage, undesired by the defendant to the plaintiff”.
b) Negligence, in general, is “the breach of a duty caused by 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”.

This definition involves three constituents (ingredients) of negligence:-

There is a legal duty to exercise due care on the defendant’s part towards the plaintiff.
Breach of the said duty.
In consequence, it results in Damage.

1] Existence of Duty:-

Thus, a duty to care is essential before a person can be liable for negligence.

In Donoghue V/s. Stevenson [2]

Facts: – The plaintiff drank a bottle of ginger beer manufactured by the defendant company. The bottle contained the decomposed snail, which was not tested (recovered) until the more significant part of the bottle had been consumed. The bottle was of dark opaque (non-transparent) glass, so its contents could not be ascertained by inspection. The plaintiff suffered shock and severe gastroenteritis.

Atkinson L. J. Held: – The defendant is liable for the breach of duty to ensure that the bottle contained no harmful matter. Care must avoid acts and omissions that one can reasonably foresee would likely injure another.

In Than in Hedley Byre & Co. Ltd V/s. H & P Ltd.,[3] a new duty was recognised.

They held: – that the law would imply a higher standard of duty for felled persons. Such persons are company directors, Solicitors, innkeepers, doctors, etc.

2] Breach of Duty:-

After the plaintiff has shown that the defendant owed him a duty, he must further offer that the defendant was in breach of the task.

Standard of care[4]: –

The test for deciding whether a defendant has been in breach of duty or not is the test of a reasonable man. The question to be asked is, has the defendant omitted to do something a reasonable and prudent man (guided by those considerations which ordinarily regulate the conduct of human affairs) would have done, or has he done something that a reasonable and prudent man would not have done?

It amounts to a breach of duty if he has not taken the care a reasonable man would take in that work. This duty of care varies from case to case. If the danger of injury to the person or property of another while doing a particular act is great, more remarkable is bound to take great care in opioid foreseeable harm. On the other hand, if the danger is slight, only a slight smallest of care is required.

In State of Karala V/s. P.G. Kumarimma (AIR 2011 (NOC) 250 (KER)

Facts: – A wife of a person who has undergone a sterilisation operation, refine remained due to a negligent operation by a doctor of Govt. in the hospital.

Held: The state is liable because a doctor has not taken reasonable care and shown skill while performing an operation

3] Damage: –

In any action of negligence, the plaintiff must prove not merely that the defendant was negligent but also that there was actual Damage and that the Damage resulted to him in consequence of the negligent act, which was the direct and proximate cause of Damage.

In Nitin Walia V/s. Union of India[5]

Facts: Tigress in a zoo, injured child, which resulted in the imputation of his hand.

Held: 5-lakh compensation was awarded for negligence of not keeping dangerous animals properly.

In the State of J & K V/s Zarina Begum [6]

Facts– One Mohd. Bashir died by coming into contact with a live wire kept on the road due to the negligence of the workman of the electric department of the State.

Held– the State of Jammu and Kashmir is liable to pay the damages.

II] Burden Of Proof Of Negligence[7]:

The general rule is that the onus of proving negligence is on the plaintiff.

Firstly, in cases of an actin between parties, the plaintiff must prove facts inconsistent with due negligence on the defendant’s part (accident).

Secondly, in some cases, however, there is a contract or personal undertaking that the plaintiff must prove the defendant’s negligence. The mere fact of an injury happening, if unexplained, is evidence of negligence, and it is for the defendant to prove that he himself exercised due care).

Thirdly, under certain circumstances, the mere occurrence of an accident will afford prima facie evidence that it resulted from want of care. Res-Ipsa Loquitur (the thing speaks for itself). This is so when-

The event or thing which caused the accident was within the defendant’s management or control.
The accident is such, as in the ordinary course of things, does not happen if those who have the management would have used proper care.

Thus, in res ipsa loquitur cases, there is a presumption of negligence, and the defendant must prove it. This maxim applies only when the cause of the accident lies solely within the knowledge of the defendant or is apparently under the control of the defendant or his servant. The burden of proving negligence is on the plaintiff in all cases, but under this rule, it is less heavy on the plaintiff.

In Byrne V/s. Boadle [8]

Facts: The plaintiff was lawfully passing along the street, and when he came near the defendant’s shop, he was injured by the fall of a barrel that rolled out of a window on the second floor. There was no evidence on the part of the plaintiff as to how the accident happened.

Held: She held the accident alone was prima facie evidence of negligence, i.e. res ipsa loquitur.

III] Defences:

In action for negligence, the following defences are available to the defendant-

Vis Major or act of God.
Inevitable accident.
Contributory negligence.

1. Vis-Major or act of God[9]:-

The act of God is such a direct, violent, sudden, and irresistible act of nature as could not by any amount of human foresight have been foreseen, could not by any amount of human care and skill, have been resisted.

In Nichols V/s. Marshland [10]

Facts: – The defendant has a series of artificial tanks on his land, in the construction or maintenance of which there had been no negligence. Due to a most unusual rainfall, so great that it could not have been reasonably anticipated, some of the reservoirs burst and carried away four country bridges.

The Court held- that the defendant was not liable as the water escaped by the act of God.

2. Inevitable Accident[11]:-

This is also one of the defences against negligence. An inevitable accident is one that can not possibly be prevented by the exercise of ordinary care, caution, and skill.

In Holms V/s. Mather[12]

Facts: – The horses of a cart ran away on a public highway to the barking of dogs. They became so unmanageable that the driver of the coach could not stop them but tried to guide them as best as he could. But eventually, it hurt the plaintiff.

Held: – No action was maintainable by the plaintiff for negligence because it was an inevitable accident. They tried their best to manage the cart

3. Contributory Negligence[13]:

The third defence of an action for negligence is that of the plaintiff’s contributory negligence (discussed in the next topic).

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[1] निष्काळजीपणा [ लापरवाही ]

[2] 1932 AC

[3] 1964

[4] काळजीपणाचे परिमाण [ परवाही के परिमाण]

[5] [AIR 2002 Delhi]

[6][AIR 2004 J & Kinship 23]

[7] निष्काळजीपणा साबित करण्याची जबाबदारी [ लापरवाही साबित करने की जिम्मेदारी ]

[8] 1863

[9] दैवी घटना [ईश्वरीय कृत्य/जो टाली नही जा सकती वो चीजे]

[10] 1875

[11] नटाळता येणारा अपघात [ नं टालणेवाला अपघात]

[12] 1872

[13] वादीचा स्वतःच सदर घटना घडण्यात वाटा असणे[ लापरवाही से दुर्घटना को सहाय्य करणा.]