NEGLIGENCE
“Negligence as a tort is a breach of a legal duty to take care which results in damage, undesired by
the defendant to the plaintiff’
Negligence as state of mind- Negligence is a mode of committing certain torts, e.g. negligently or
carelessly committing trespass, nuisance or defamation. This is the subjective meaning of negligence
advocated by the Austin, Salmond and Winfield.
Negligence as a type of conduct- Negligence is a conduct, not a state of mind conduct , which
involves the risk of causing damage. This is the objective meaning of negligence, which treats
negligence as a separate or specific tort. - It is given by Pollock
Negligence is also of two kinds: (a) Advertent negligence - It is called wilful negligence or
recklessness also. In this negligence, the harm done is foreseen as possible or probable, but it is not
willed. For example, a person who drives furiously in a crowded street and causes injury or harm to
persons commits it by advertent negligence. For legal purposes, such negligence is classed with
intention.
(b) Inadvertent or simple negligence - It is a result of ignorance, thoughtlessness or forgetfulness. In
such negligence the harm caused is neither foreseen nor wilful. For example, a doctor who treats a
patient improperly through negligence
ESSENTIALS
(1) That the defendant owed duty of care to the plaintiff.
(2) The defendant made a breach of the duty i.e. he failed to exercise due care and skill.
(3) Plaintiff suffered damage as a consequence thereof.
1]DUTY OF CARE TO PLANTIFF
An action for negligence proceeds upon the idea of an obligation or duty on the part of the
defendant to use care, a breach whereof results in the plaintiff’s injury. It is not necessary that the
duty neglected should have arisen out of a contract between the plaintiff and the defendant.
1 DUTY OF CARE
Duty of care’ means a legal duty rather than mere moral, religious or social duty. In the absence of
such legal duty, negligence in the popular sense has no legal consequences. It is not sufficient to
show that the defendant was careless; the plaintiff has to establish that the defendant owed to the
plaintiff a specific legal duty to take care.
DONOGHUE V STEVENSON (“SNAIL-IN-THE-BOTTLE CASE”)
In this case, a fundamental principle of the English law of negligence was affirmed by the House of
Lords in a majority judgment. The court treated negligence, where there is a duty to take care, as a
specific tort in itself.
FACTS - In this case , the appellant plaintiff (Donoghue) drank a bottle of ginger beer which was
brought from a retailer by her friend. The bottle in fact contained the decomposed body of snail,
which was found out by her when she had already consumed a part of the contents of the bottle.
The bottle was of dark opaque glass sealed with a metal cap so that its contents could not be
ascertained by inspection. The plaintiff brought an action against the manufacturer of beer
(Stevenson) to recover damages which she suffered due to serious effects on her health.
ISSUE
- WHETHER THE DEFENDANT OWED ANY DUTY OF CARE TO THE Plaintiff
-that the plaintiff was a stranger to the contract and thus her action was maintainable OR NOT
HELD
The House of Lords rejected both the pleas of the defendant and held that the manufacturer of the
bottle was responsible for his negligence towards the plaintiff. It was the duty of the manufacturer
to use reasonable diligence to ensure that the bottle did not contain any noxious or dangerous
matter.
It was held that when a product is manufactured it is intended to reach to the ultimate consumer .In
any situation if the consumer is not left with any reasonable opportunity to examine the product or
he has done sufficient inspection before consuming the product then in this case if any injury is
caused to the consumer the manufacturer will be responsible .
2 Reasonable Foreseeability of Injury
Whether the defendant owes a duty to the plaintiff or not depends on reasonable foreseeability of
the injury to the plaintiff. In other words, the duty to take care arises as soon as there is reasonable
probability of danger from the defendant’s conduct. A useful test to decide culpability is to
determine what a ‘reasonable man’ (i.e. a man of ordinary prudence or intelligence) would have
foreseen and behaved under the circumstances. The standard of foresight of the reasonable man is
an impersonal or objective test. The reasonable man is presumed to be free both from over-
apprehension and from over-confidence
In Rural Transport Service v Bezlum Bibi (AIR 1980 Cal 165), the conductor of an overloaded bus
invited passengers to travel on the roof of the bus. On the way the bus swerved on the right side to
overtake a cart. One of the passengers on the roof of the bus was struck by an overhanging branch
of a tree. He fell down and died because of injuries. Held, that there was negligence on the part of
both the driver and conductor of the bus. The court observed that inviting passengers to travel on
the top of an overcrowded bus is itself a rash and negligent act and that apart when passengers
were being made to travel on the roof a great amount of care and caution on the part of the driver
was called for which he failed to show by swerving on the right so close to a tree with over-hanging
branch.
3 When the Defendant is Not Liable for Negligence
(a) When the injury to the plaintiff is not foreseeable, then the defendant is not liable.
In Glasgow Corpn. v Muir (1943) 2 All. E.R. 44, the managers of the defendant corporation tearooms
permitted a picnic party to have their food in the tearoom. Two members of the picnic party were
carrying a big urn containing 6-9 gallons of tea to a tearoom through a passage where some children
were buying sweets and ice creams. Suddenly one of the persons lost the grip of the handle of urn
and six children, including the plaintiff, were injured. Held, that the managers could not anticipate
that such an event would happen as a consequence of tea urn being carried through a passage and,
therefore, she had no duty to take precautions. Hence, neither she nor the corporation could be
held liable for injury
To establish negligence it is not enough to prove that the injury was foreseeable, but a reasonable
likelihood of the injury has also to be shown. Reasonable foreseeability does not mean remote
possibility. If the possibility of danger emerging is only a mere possibility which could never occur to
the mind of a reasonable man, then there is no negligence in not having taken extraordinary
precautions
In Bolton v Stone (1951) A.C. 850, a person on road was injured by a ball hit by a player on a cricket
ground abutting on that highway. The ground had been used for 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. Held,
that the defendants (committee and members of cricket club) were not negligent.
2 Breach of Duty
It means not taking due care which is required in a particular case
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 risk so that in
public interest various kinds of activities should go on.
The degree of care varies according to the likelihood of harm and seriousness of injury. A person
handling a loaded gun is expected to take more care than a person carrying a stick.
In Latimer v A.E.C. Ltd. (1953) A.C. 643, due to heavy rain a factory was flooded with water, which
got mixed with some oily substance. The floors in the factory became slippery. The factory owners
spread all the available sawdust but some oily patches still remained there. The plaintiff slipped and
was injured. He sued the defendants and contented that, as a matter of precaution the factory
should have been closed down. Held, that the risk created was not so great as to justify that
precaution. The defendants had acted reasonably and, therefore, they were not liable.
(3) Damages
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
(Proof of Negligence) As a rule, the onus of proving negligence is on the plaintiff. He must not
merely establish the facts of the defendant’s negligence and of his own damage, but must show that
the one was the effect of the other. There are, however, certain cases when the plaintiff need not
prove that and the inference of negligence is drawn from the facts. Thus, direct evidence of the
negligence is not always necessary and the same may be inferred from the circumstances of the
case. There is a presumption of negligence according to the Latin maxim ‘res ipsa loquitur’ which
means the thing speaks for itself. When the accident explains only one thing i.e. 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.
: MUNICIPAL CORPN., DELHI v SUBHAGWANTI9 (“CLOCKTOWER CASE") (AIR 1966 SC 1750) In this
case, due to the collapse of the Clock Tower situated opposite to Town Hall in the main bazar of
Chandni Chowk, Delhi, a number of persons died. The Clock Tower belonged to the Municipal
Corporation of Delhi and was exclusively under its control. The trial court held that it was the duty
of Municipal Committee to take proper care of the building so that they should not prove a source
of danger to the persons using the highway as a matter of right.
Rest from notebook this case
DEFENCES
A] Vis Major Vis Major (or 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, or, if foreseen, could not, by
any amount of human care and skill, have been resisted. Thus, acts which are occasioned by the
elementary forces of nature, unconnected with the agency of man or other cause, will come under
the category of acts of God, e.g. storm, tempest, lightning, extraordinary fall of rain/ high tide/
severe frost, etc.
(b) Inevitable accident
The second defence in an action for negligence is that of inevitable accident. Thus, A is lying drunk
on a roadway. B approaches in a motor-car round a bend in the road, but just before he reaches the
point at which, under ordinary circumstances, he would first see A, a sheet of newspaper is blown
by the wind against his windscreen and materially obscures his view. He runs over A, and injures
him. Here, A cannot succeed, it being a case of inevitable accident or misfortune.
(c) Contributory negligence of the plaintiff
The third defence to an action for negligence is that of the contributory negligence of the plaintiff
himself. In certain circumstances a person who has suffered an injury will not be able to get
damages from another for the reason that his own negligence has contributed to his injury; every
person is expected to take reasonable care of himself. Thus 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. For example, a pedestrian tries to cross the
road all of a sudden and is hit by a moving vehicle, he is guilty of contributory negligence. In this
case, the defendant could completely escape his liability for the accident, on account of the
plaintiff’s negligence which contributed to his injury
Volenti non fit Injuria
No injury is done to one who consents. Everyone is the best judge of his interest and therefore the
one who voluntarily agrees to suffer harm is not allowed to complain for that and one’s consent is a
good defence against oneself. This is so because the harm voluntarily suffered does not constitute
the legal injury. No man can enforce a right, which he has voluntarily waived or abandoned.
MEDICAL NEGLIGENCE
AND BP SHANTA CASE VS IMA
THENN FOR F PART
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