Menu Close

Negligence and its essentials in tort law

INTRODUCTION

According to dictionary, negligence means carelessness. There are other definitions also of negligence. negligence is what we can call as breach of duty. It is the breach of duty that was wed in general.

If a person engages in unreasonable behaviour and then causes injury to another person, he may be held liable for carelessness. According to Swayne, J. “Negligence is the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation.”

In Indian Law, negligence is a tort under tort law. It was emerged as independent law in England in 18th century only. It has been accepted by the Indian courts on the principles of equality, justice and conscience.

MEANING OF NEGLIGENCE

According to Winfield, “Negligence as a tort is the breach of a legal duty to the care which results in damage, undesired by the defendant, to the plaintiff”. Failure to satisfy a standard of behaviour designed to safeguard society from unjustified danger is referred to as negligence in law.

The anticipated possibility that the person’s behaviour will result in injury, the predictable degree of any harm that may occur, and the burden of safeguards to remove or decrease the risk of harm are the primary considerations to evaluate in determining whether the person’s conduct lacks reasonable care.

Physical injury, material damage, psychological disease, and economic loss are all examples of loss. Negligence law can be examined using a five-part model that comprises the evaluation of duty, breach, actual cause, proximate cause, and damages.

Negligence has been recognised as independent tort by the House of Lords in the case of Donoghue v. Stevenson[1]. This case treats negligence as a type of conduct. In this case, A purchased a bottle of ginger beer from a retailer for the appellant, a lady friend. Some of the contents were poured in a tumbler and she consumed the same. When the remaining contents of the bottle were poured into her tumbler, the decomposed body of a snail floated out with her ginger beer.

The appellant alleged that she seriously suffered in her health in consequence of having drunk a part of the contaminated contents. The bottle was of dark opaque glass and closed with a metal cap, so that the contents could not be ascertained by inspection. She bought an action against the manufacturer for the damage.

ESSENTIALS FOR NEGLIGENCE

There are certain essentials or prerequisites that are considered necessary for the tort of negligence to happen. These three essentials are duty of care, breach of duty, damage suffered. These essentials in detail are as follows:

See also  Kinds Of Legislation Interpretation Rules

1.     DUTY OF CARE

It indicates that when doing an act, each individual owes a responsibility of care to another person. While this responsibility exists in all activities, it is of a legal character and cannot be illegal or criminal, nor can it be spiritual, ethical, or religious. It should be established that there was a duty to take care on the part of the defendant. A person is expected to act in a reasonable manner, but if he does not, he is considered to be careless. However, a man cannot be held legally liable for every reckless conduct.

Duty of care arises when there is proximity and one person owes some care on his part to another.

In the case of Stansbele vs. Troman [3],the decorator was engaged in decorating the building. Soon after the decorator left the house without locking the door or warning, anyone. During his absence, a thief entered the house and stole some of the property the owner of the house claimed from the decorator. It was held that the decorator was responsible because he was reckless in keeping the house open and failing to exercise his duty of care.

An obligation exists when the law recognises the defendant-plaintiff connection and authorises the defendant to act in a specific way toward the plaintiff. It is not enough that the defendant owes the complaint a duty of care; it must also be defined and decided by the judge.

REASONABLE FORESEEABILITY OF INJURY

The duty of a defendant owed to the plaintiff depends on reasonable foreseeability of the injury to the plaintiff. If at the time of the act or omission omission of the act, the defendant can reasonable foresee injury to the plaintiff, he owes a duty to prevent that injury. If he fails to do so, he will be liable for negligence. In Bourhill v. Young[4], Lord Macmillan said that duty to take care is the duty to avoid doing or omitting to do anything which may as a consequence can cause probable and reasonable injury, and the duty is owed to those to whom injury may be reasonably or probably anticipated if the duty is not observed.

It is upon the court to assess the foreseeability of injury. It is not necessary that the plaintiff is immediate neighbor only or has direct relationship with. The consumers of a product can also make manufactures of that product liable if the negligence happens on part of manufacturer.

To establish negligence, it is not enough to prove that the injury was forseeable but likelihood of the injury has to be shown. The duty is to guard against probabilities rather than bare possibilities. In S.K. Devi v. Uttam Bhoi[5], a boy of 7-8 years was hit by a truck in broad daylight, as a result of which he received multiple injuries. It was held that the a place was where children were frequented. The truck driver should have taken proper care and precautions and therefore, was held liable for negligence.

See also  The Hypothesis of Trade Secrets as a right

2.     BREACH OF DUTY

Second important essential is that duty should have been breached. Breach of duty means non-observence of due care which is required in a particular situation. It is not enough for the plaintiff to demonstrate that the defendant owed him a duty of care. He must also demonstrate that the defendant breached his obligation to the plaintiff. The defendant violates such a responsibility by neglecting to use reasonable caution in carrying out the obligation. In other words, a breach of the duty of care occurs when the person who is accountable for the duty of care fails to behave responsibly and does not omit or do any act that it has or does not have to do.

STANDARD OF CARE

The standard of care is required. The standard is that of a reasonable man or of an ordinarily prudent man. The test of prudent man is applied and it is seen that if in the same situation what would and ordinary or a prudent person will do. The law requires the caution which a prudent man would observe. The standard is objective and it means what a judge considers should have been the standard of a reasonable man.

In Municipal Corporation of Delhi v. Subhagvanti[6], a very ancient clock tower smack in the heart of a bustling area of Chandni Chowk suddenly fell, killing several people. The clock tower was 80 years old, despite the fact that its usual life expectancy should have been 40-45 years. The Municipal Corporation of Delhi was in charge of the clock tower, and they had a responsibility to the inhabitants. They had broken their duty of care to the public by failing to restore the clock tower and were thus accountable.

The law does not require greatest possible care rather the care required is that of a reasonable man under certain circumstances. The law permits to take some measures of risk in the public interest to carry out daily activities because complete restriction cannot be made.

The magnitude or degree of risk required also varies according to each situation. An act may be considered careful in one situation while negligent in another. The kind of risk determines the precautions to be taken. The magnitude of risk also determines the duty of care required which could have been foreseen by a reasonable and prudent man.

3.     DAMAGE SUFFERED

Third and the most important essential is that the plaintiff should suffer some damages due to breach of duty of defendant. If there is no damage, there is no negligence. For example, if workers while working left ladder in the middle of the road at the night but later on picked it up in the morning but no one suffered any damage in the meantime it cannot be termed as negligence.

See also  Cow Slaughter ban in India!

The plaintiff has to necessarily show that he has received damage due to breach of duty by the defendant. Any fact or evidence which may determine the amount of damages to be rewarded is considered relevant. The duty to assess damage is however, entirely upon court.

The harm may fall into the following classes:-
a.) Bodily harm
b.) Harm to the reputation
c.) Harm to property
d.) Financial Loss
e.) Mental Harm.

After proving such damage, the defendant is compelled to compensate the plaintiff for the injury that occurred. The defendant will not be held liable if the damage is too remote to be a consequence of the defendant’s actions. 

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.

In the case of Joseph vs Dr. George Moonjely[7].The Kerela high court awarded damages amounting to Rs 1,60,000 against a surgeon for performing an operation on a 24-year-old girl without following proper medical procedures and not even administering local anaesthesia.

CONCLUSION

Negligence is a tort in civil law. If the duty of care is breached, it can be a case of negligence. From the above case, it can be concluded that if a person or authority owes duty of care and breaches it will be held liable for negligence. The core principle of negligence is that people should act with reasonable care, taking into consideration the possible harm that their actions may cause to other persons or property. Someone who suffers a loss as a result of another’s carelessness may be eligible to sue for compensation. Physical injury, material damage, psychological illness, and economic loss are examples of such losses.

From the above cases also, we can see that the court observed all the three essentials and when the court was satisfied that all essentials were satisfied, the defendant was held liable.


[1] Donoghue v. Stevenson, 1932 AC 562.

[2] Donoghue v. Stevenson, 1932 AC 562.

[3] Stansbie v Troman [1948] 2 KB 48.

[4] Bourhill v. Young, (1943) A.C. 92.

[5] S.K. Devi v. Uttam Bhoi AIR 1974 Ori 207.

[6] Municipal Corporation of Delhi v. Subhagvanti 1966 AIR 1750.

[7] Joseph vs Dr. George Moonje AIR 1994 Ker 289.

Author/Editor

Related Posts

1 Comment

  1. Pingback:M/s. Iffco Tokyo Genral Insurance Ltd. case » The Legal Lock

Leave a Reply

Your email address will not be published.

Join the fastest-growing community!

It's not been a year yet, but we are glad that the students have accepted us and supported us!

More than 2000 students have already been a part of the Legal Lock community!

What are you looking for?

Join us now!

  
Holler Box