What is Negligence in Law of Torts

What is  Negligence in Law of Torts

What is Negligence in Law

NEGLIGENCE –[i] DEFINITION-

Negligence in law of torts can be defined as any breach of duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent or reasonable man would not do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property.

From this definition, the three constituents of negligence can be drawn. They are mentioned as follows:

  • A legal duty to exercise due care on the part of the party complained of towards the party complaining the former’s conduct within the scope of the duty,
  • Breach of the said duty,
  • Consequential damage.

ESSENTIAL ELEMENTS OF NEGLIGENCE-

In an action for negligence, the plaintiff has to prove the following essentials:

  • That the defendant owed duty of care to the plaintiff;
  • The defendant made a breach of that duty;
  • The plaintiff suffered damage as a consequence thereof.

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.

BREACH OF DUTY- It means non-observance of due care which is required in a particular situation. What is the standard of care required? 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.

DAMAGE- 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 LOQUITOR-

As a general rule, it is for the plaintiff to prove that the defendant was negligent. The initial burden of making out at least a prima facie case of negligence against the defendant lies heavily on the plaintiff, but once this onus is discharged, it will be for the defendant to prove that the incident was the result of inevitable accident or contributory negligence on the part of the plaintiff. If the plaintiff is not able to prove negligence on the part of the defendant, the defendant cannot be made liable.

Though it is the general rule of proof as stated above, but there are some cases when the plaintiff need not to prove the negligence of the defendant. There is a presumption of negligence accordingly to the maxim RES IPSA LOQUITOR which means ‘THE THING SPEAKS FOR ITSELF.’ For this maxim to apply, it is also necessary that the event causing the accident must have been in the control of the defendant.

CONTRIBUTORY NEGLIGENCE-

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.

An action would be said to be the result of contributory negligence if “the proximate cause of the accident is the act or omission amounting to want of ordinary care or in defiance of duty or obligation on the part of the complaining party (the plaintiff) has conjoined with the other party’s negligence.”

This is a defence in which a defendant has to prove that the plaintiff failed to take reasonable care of his own safety and that was a contributing factor to the harm ultimately suffered by the plaintiff. If ‘A’ is going on the wrong side of the road, is hit by a vehicle coming from the opposite direction and driven rashly by ‘B’, ‘A’ can be met with the defence of contributory negligence on his part.

DEFENCES FOR NEGLIGENCE-

  • CONTRIBUTORY NEGLIGENCE- It has already been discussed above.
  • ACT OF GOD (VIS MAJOR)- 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, earthquake, etc.
  • INEVITABLE ACCIDENT- It 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 that accident which is physically unavoidable.

LANDMARK CASE LAWS-

  • St Helen’s Smelting Co v. Tipping (1865)-[ii] In this case, it was held that it was no defence to say that the claimant ‘came to the nuisance’ and the defendant could not be said to have acquired a right through prescription to continue to discharge noxious fumes. While smelting and the discharge of the fumes was not in itself unlawful, and in a locality in which this was to be expected there could be no nuisance.
  • Donoghue v. Stevenson (1932)-[iii] In this case, A purchased a bottle of ginger beer from a retailer for her lady friend. Some of the content was 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. She seriously suffered in her health in consequence of having drink a part of the contaminated contents. The House of Lords held that the manufacturer owed her a duty to take care that the bottle did not contain any noxious matter, and that he would be liable on the breach of the duty.
  • Glasgow Corp. v. Taylor (1992)-[iv] In this case, poisonous berries were grown in a public garden under the control of the Corporation. The berries looked like cherries and thus tempting appearance for the children. A child, aged seven, ate those berries and died. It was held that the defendants were liable for negligence.
  • Kerala State Electricity Board v. Suresh Kumar (1986)-[v] In this case, a minor boy came in contact with an overhead electric wire which had sagged to 3 feet above the ground, got electrocuted thereby and received burn injuries. The Electricity Board had a duty to keep the overhead wire 15 feet above the ground. The Board was held liable for the breach of its statutory duty.
  • Dr. Ram Raj Singh v. Babulal (1982)-[vi] In this case, the defendant had created a stone crushing machine, nearby the plaintiff’s house. It was held that the plaintiff was able to probe that such activity causes a problem at large and therefore it was a public nuisance. Also, special damages were given to the plaintiff.    

[i] Bangia, supra.

[ii] St. Helens Smelting Co. v. Tipping, 1865.

[iii] Donoghue v. Stevenson, 1932.

[iv] Glasgow Corporation v. Taylor, 1992.

[v] KSEB v. Suresh Kumar, 1986.

[vi] Dr. Ram Raj Singh v. Babulal, 1982.

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