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Lecture 03
Topic: Negligence
Course Name: Law of Tort and Consumer Protection
Course Code: LAN 1204
Course Teacher: Nasrin Akter
Negligence as A Tort:
It is already known that the law of torts is based on the English common law. Thus, the law relating
to negligence is adopted and modified by the courts of Indian Subcontinent on the principles of
justice, equity and good conscience. The term Negligence is derived from the Latin word
negligentia, which means carelessness. In the general sense, the term negligence means the act
of being careless and in the legal sense, it signifies the failure to exercise a standard of care
which the doer as a reasonable man should have exercised in a particular situation.
Negligence in English law emerged as an independent cause of action only in the 18th century.
Similarly in Indian law, the IPC, 1860 contained no provision for causing the death of a person by
negligence which was subsequently amended in the year 1870 by inserting section 304A.1 (Also
Applicable in Bangladesh, Section 304A of the Penal Code, 1860)
MEANING:
In everyday usage, the word ‘negligence’ denotes mere carelessness. In legal sense it signifies
failure to exercise standard of care which the doer as a reasonable man should have exercised in
the circumstances. In general, there is a legal duty to take care when it was reasonably
foreseeable that failure to do so was likely to cause injury. Negligence is a mode in which many
kinds of harms may be caused by not taking such adequate precautions.
The Tort of Negligence is a legal wrong that is suffered by someone at the hands of another who
fails to take proper care to avoid what a reasonable person would regard as a foreseeable risk. In
many cases there will be a contractual relationship (express or implied) between the parties
involved, such as that of doctor and patient, employer and employee, bank and customer.
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Causing death by negligence 304A. Whoever causes the death of any person by doing any rash or negligent act
not amounting to culpable homicide shall be punished with imprisonment of either description for a term which
may extend to five years, or with fine, or with both.]
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Illustration
Z, an owner of a big dog requests his friend X to take care of the dog while he is away. X leaves
the dog unattended who attacks a passerby badly injuring him. Here it will be said that the act
occurred due to the negligence of X. In the general sense, the extent of liability in tort is determined
by the number of damages a party has incurred.
DEFINITION:
• WINFIELD AND JOLOWICZ: 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 [Ref. Winfield and Jolowicz on Tort, Ninth Edition, 1971, p. 45].
• 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.”
• In Blyth v. Birmingham Water Works Co., (1856) ALDERSON, B. defined negligence
as, negligence is the omission to do something which a reasonable man…….. would do, or
doing something which a prudent or reasonable man would not do.
• In Lochgelly Iron & Coal Co. v. Mc Mullan, 1934, LORD WRIGHT said, 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 owing.
ESSENTIALS OF NEGLIGENCE:
In an action for negligence, the plaintiff has to prove the following essentials:
1. DUTY TO TAKE CARE:
It is one of the essential conditions of negligence in order to make the person liable. It means that
every person owes, a duty of care, to another person while performing an act. Although this duty
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exists in all acts, but in negligence, the duty is legal in nature and cannot be illegal or unlawful
and also cannot be of moral, ethical or religious nature.
One of the essential conditions of liability for negligence is that the defendant owed a legal
duty towards the plaintiff. The following case laws will throw some light upon this essential
element.
In the case of Stansbele vs Troman (1948), A decorator was engaged to carry out decorations in a
house. Soon after the decorator left the house without locking the doors or informing anyone.
During his absence, a thief entered the house and stole some property the value of which the owner
of the house claimed from the decorator. It was held that the decorator was liable as he was
negligent in leaving the house open and failed his duty of care.
In Grant v. Australian Knitting Mills Ltd., 1935 the plaintiff purchased two sets of woolen
underwear from a retailer and contacted a skin disease by wearing an underwear. The woolen
underwear contained an excess of sulphates which the manufacturers negligently failed to remove
while washing them. The manufacturers were held liable as they failed to perform their duty to
take care.
2. DUTY TO WHOM:
Donoghue v. Stevenson, 1932 carried the idea further and expanded the scope of duty saying that
the duty so raised extends to your neighbour. Explaining so as to who is my neighbour LORD
ATKIN said that the answer must be “the persons who are so closely and directly affected by my
act that I ought reasonably to have them in contemplation as being so affected when I am
directing my mind to the acts or omissions which are called in question”.
3. DUTY MUST BE TOWARDS THE PLAINTIFF:
A duty arises when the law recognizes a relationship between the defendant and the plaintiff and
requires the defendant to act in a certain manner toward the plaintiff. It must also be established
that the defendant owed a duty of care towards the plaintiff.
The case of Donoghue v. Stevenson (1932) has evolved the principle that we each have a duty of
care to our neighbor or someone we could reasonably expect to be affected by our acts or
omissions. It was held that, despite no contract existed between the manufacturer and the person
suffering the damage an action for negligence could succeed since the plaintiff was successful in
her claim that hat she was entitled to a duty of care even though the defective good i.e a bottle of
ginger beer with a snail in it was bought, not by herself, but by her friend.
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4. Breach of Duty to Take Care:
Yet another essential condition for the liability in negligence is that the plaintiff must prove that
the defendant committed a breach of duty to take care or he failed to perform that duty.
It’s not enough for a plaintiff to prove that the defendant owed him a duty of care but he must also
establish that the defendant breached his duty to the plaintiff. A defendant breaches such a duty by
failing to exercise reasonable care in fulfilling the duty. In other words, the breach of a duty of
care means that the person who has an existing duty of care should act wisely and not omit or
commit any act which he has to do or not do as said in the case of Blyth v. Birmingham
Waterworks Co, (1856). In simple terms, it means non-observance of a standard of care.
In the case of Ramesh Kumar Nayak vs Union of India(1994), The post authorities failed to
maintain the compound wall of a post office in good condition on the collapse of which the
defendant sustained injuries. It was held that postal authorities were liable since that had a duty to
maintain the post office premises and due to their breach of duty to do so, the collapse occurred.
Hence, they were liable to pay compensation.
In Municipal Corporation of Delhi v. Subhagwanti, 1966 a clock-tower in the heart of the
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 Dellhi having
the control of the structure failed to take care and was therefore, liable.
In Municipal Corporation of Delhi v. Sushila Devi, 1999 a person passing by the road died
because of fall of branch of a tree standing on the road, on his head. The Municipal Corporation
was held liable.
5. Actual Cause or Cause in Fact
In this scenario, the plaintiff who is suing the defendant for negligence has the liability to prove is
that the defendant’s violation of duty was the actual cause of the damages incurred by him. This
is often called the “but-for” causation which means that, but for the defendant’s actions, the
plaintiff would not have incurred the damages. For example, When a bus strikes a car, the bus
driver’s actions are the actual cause of the accident.
6. Proximate Cause:
Proximate cause means “legal cause,” or the cause that the law recognizes as the primary cause
of the injury. It may not be the first event that set in motion a sequence of events that led to an
injury, and it may not be the very last event before the injury occurs. Instead, it is an action that
produced foreseeable consequences without intervention from anyone else. A defendant in a
negligence case is only responsible for those damages that the defendant could have foreseen
through his actions.
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In the case of Palsgraf vs Long Island Railroad Co (1928), A man was hurrying while trying to
catch a train and was carrying a packed item with him. The employees of the railway saw the man
who was attempting to board the train and thought that he was struggling to do so. An employee
on the rail car attempted to pull him inside the train while the other employee who was on the
platform attempted to push him to board the train. Due to the actions of the employees, the man
dropped the package. Which had contained fireworks, and exploded when it hit the rails. Due to
the explosion, the scales fell from the opposite end of the station and hit another passenger, Ms.
Palsgraf, who then sued the railway company. The court held that Ms. Palsgraf was not entitled to
damages because the relationship between the action of the employees and the injuries caused to
him were not direct enough. Any prudent person who was in the position of the railway employee
could not have been expected to know that the package contained fireworks and that attempting to
assist the man the railcar would trigger the chain of events which lead to Ms. Palsgraf’s injuries.
7. Consequent Damage or Consequential Harm to the Plaintiff:
The last essential requisite for the tort of negligence is that the damage caused to the plaintiff was
the result of the breach of the duty. Proving that the defendant failed to exercise reasonable
care is not enough. It should also be proved that the failure of the defendant to exercise
reasonable care resulted in damages to the plaintiff to whom the defendant owed a duty of
care.
The harm may fall into following classes:
a. physical harm, i.e. harm to body;
b. harm to reputation;
c. harm to property, i.e. land and buildings and rights and interests pertaining thereto, and his
goods;
d. economic loss; and
e. mental harm or nervous shock.
When such damage is proved, the defendant is bound to compensate the plaintiff for the
damages occurred.
In the case of Joseph vs Dr. George Moonjely (1994) 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.
In Achutrao Haribhau Khodwa v. State of Maharashtra (1996); a cotton mop was left inside
the body by the negligence of the doctor. The doctor was held liable.
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Defences for Negligence
In an action for negligence following defences are available:
1. Contributory Negligence:
It was the law 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), 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:
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); 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.
3. Inevitable Accident:
Inevitable accident also works as a defence of negligence. 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) 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) 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.
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In Stanley v. Powell, (1891), 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.
Res Ipsa Loquitur
Res ipsa loquitur is a Latin phrase that means “the thing speaks for itself.” It is considered to be a
type of circumstantial evidence which permits the court to determine that the negligence of the
defendant led to an unusual event that subsequently caused injury to the plaintiff. Although
generally the duty to prove that the defendant acted negligently lies upon the plaintiff but through
res ipsa loquitur, if the plaintiff presents certain circumstantial facts, it becomes the burden of the
defendant to prove that he was not negligent.
This doctrine arose out of the case of Byrne vs Boadle(1863). The plaintiff was walking by a
warehouse on the road and suffered injuries from a falling barrel of flour which rolled out of a
window from the second floor. At the trial, the plaintiff’s attorney argued that the facts spoke for
themselves and demonstrated the warehouse’s negligence since no other explanation could account
for the cause of the plaintiff’s injuries.
Thus, the following are the three essential requirements for the application of this maxim:
a. The thing causing the damage must be under the control of the defendant or his servants
b. The accident must be such as would not have happened in the ordinary course of things
without negligence.
c. There must be no evidence of the actual cause of the accident.
