Negligence and its Defences

This article deals with the basic understanding of the tort of negligence. It examines how the common law tort of negligence can provide a valuable guide to understanding and illustrating some of the diverse theoretical problems. It shows the relationship between the rights of a person and the duties of the other person. This article focuses on describing the obligations of the person towards the other in order to protect their rights and avoid any legal injury.

It covers the definition of the term negligence and how it is classified into three major categories of non-feasance, misfeasance, and malfeasance. Moreover, it briefly discusses the essential elements of the negligence which must be proved by the plaintiff in order to succeed the claim of negligence against the defendant. The elements are the duty of care towards the plaintiff, breach of the said duty, and resulting damage due to the breach of the duty by the defendant.

This article further discusses the defences available to the defendant in order to get away with the claim of negligence. The defences include contributory negligence, comparative negligence, assumption of risk, Act of God, inevitable accidents, and volenti non fit injuria. The defences have been discussed in detail and have covered the major portion of the paper. The primary defences include contributory negligence which involves negligence on the part of the plaintiff as well, comparative negligence compares the amount of negligence of the plaintiff and it further provides compensation by deducting the proportionate amount, other important defence is the defence of assumption of risk by the plaintiff.


Negligence is one of the most common forms of personal injury lawsuits. In simpler terms, the word negligence refers to carelessness. Whereas, in legal terms, the tort of negligence refers to a legal wrong suffered by someone due to any negligent act conducted by the other person. The person suffering a legal injury is commonly known as the plaintiff while the other party is referred to as the defendant. If the defendant while carrying out any task fails to take proper care to avoid any foreseeable risk which a reasonable man would have considered otherwise, the defendant is claimed to have committed a tort of negligence.

In most cases, there exists a contractual relationship (express or implied) between the involved parties, such as that of employer and employee, bank and customer, doctor and patient, and until relatively recently such a contractual relationship was necessary in order to succeed in a negligence claim. However, civil law relating to negligence has evolved and grown to deal with circumstances that occur between two or more parties, even when there is no contract between them, express or implied.

The law of negligence follows that from a practical and financial point of view each organisation needs to ensure that management planning continually takes full account of the responsibilities imposed and the potential liabilities that may be incurred under what is an ever-evolving part of the law.

Definition of Negligence

Negligence derives from the Latin word negligentia, literally meaning “failing to pick up”. A person is said to be negligent when the person fails to take care in a situation where he/she ought to. Negligence refers to the breach of a duty caused by the omission of doing something that a reasonable man would do, driven by those factors which normally regulate the conduct of human affairs, or doing something that a prudent and rational man would not do.

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.” In simpler words, a person failing to act as expected by him or her either carelessly or intentionally constitutes the act of negligence.

Characteristics of Negligence

Negligence can be committed by failing to do an act (omission) or by doing a wrongful act (commission). It, therefore, can be characterized in three forms:

  1. Non-Feasance: Failing to do what a person should have done. E.g. failing to carry out repairs in a building when it should have been done.
  2. Misfeasance: Doing an act improperly where the act should have been carried out with proper due care. E.g. carrying out repairs in the building but using poor quality materials so they give way to hurting people.
  3. Malfeasance: Doing something where a person should not be doing it. E.g. using combustible prohibited substances while carrying out the repairs thereby making the building firetrap.

Essentials of Negligence

1.      Duty of care

There must exist a duty of care for the claim of negligence to succeed. This means that every person owes another person a duty of care while performing any act. However, this duty exists in all acts, but in case of negligence, the obligation is of a legal nature and it cannot be unlawful or illegal nor of moral, ethical, or religious in nature.

In the case of Stansbie v. Troman, a decorator was involved in carrying out decorations in a house. The decorator left the house without even locking the doors or warning anyone in the house. Due to his negligence, a thief entered the house and stole some property of which the house owner claimed the decorator ‘s value. The decorator was held responsible because he was negligent in keeping the house open and his duty of care failed.

2.      Breach of such duty

Having determined there exists a duty of care towards the plaintiff, the next essential element is to determine whether the accused has breached his duty to the plaintiff. A defendant is said to have breached his duty if he fails to exercise reasonable care while carrying out any act. In other words, in other words, breach of a duty of care means that the person with an established duty of care should act wisely and should not omit any act which he has to do or commit any act which he should not do.

In the case of Ramesh Kumar Nayak v. Union of India And Ors. a compound wall of a post office had collapsed due to failure of maintenance by the postal authorities and as a result of which the defendant sustained injuries. The postal authorities were held liable since they had a duty of care to protect the premises of the post office and were required to pay the compensation.  

3.      Consequential Damage

It is not enough to prove that the defendant failed to exercise reasonable care. The plaintiff must also prove that the defendant’s inability to exercise due care resulted in damages to the plaintiff. Moreover, the damages must be a result of the direct outcome of the breach of duty and there should not exist any intervening act in between. The harm suffered by the plaintiff might be bodily harm, harm to reputation, harm to property, monetary loss, or mental harm.

In the case of Joseph v. Dr. George Moonjely, the High Court of Kerala held a surgeon liable for negligence who performed an operation of a 24-year-old girl without following proper medical care and not even administered local anaesthesia. He was asked to pay a sum of Rs. 1,60,000 as compensation amount.

Defences to negligence

1.      Contributory negligence

One of the most common defences of negligence is contributory negligence. A plaintiff “contributes” to his own injury when his conduct falls below what is expected by the standard of reasonable behaviour, which demonstrates what the reasonable person should have done to defend himself against injury. It is a Common Law rule that any person who by his own negligent act contributes to the injury of which he claims compensation cannot maintain an action against the defendant in respect of it. In such a case the plaintiff is considered to be an author of the wrong done to him. This happens when a complainant fails to take reasonable precautions, which then combined with the negligence of the defendant to cause the plaintiff to suffer injury. In other words, if they were still not reckless the plaintiff would possibly have prevented the injuries.

In the case of Butterfield v. Forrester, the defendant had placed a pole over a public roadway in Durby, which he had no right to do. The plaintiff was riding that way in August at 8 o’clock in the evening when dusk was going on, but the barrier was still noticeable from a distance of 100 yards, he was riding aggressively, he came up against the pole and he fell with the horse.  It was held that the complainant acted negligently and hence, he cannot claim any compensation for the damages from the defendant.

2.      Comparative Negligence

Only a few states still use the traditional form of contributory negligence. Most of the states have adopted a fairer approach known as comparative negligence. The defendant can claim the defence of comparative negligence to get away with the full burden of the claim for damages. Comparative negligence limits the recovery of the plaintiff by the proportion of the plaintiff’s responsibility in the accident that resulted in the injury. A majority of states have changed this provision to prohibit a plaintiff from seeking money if the plaintiff is as much at fault or more at fault as the defendant. There are various forms of comparative negligence, including “pure” or “modified.” In mere comparative negligence, the plaintiff shall be awarded a portion of the damages for which the defendant is responsible and under adjusted comparative negligence the plaintiff shall only be awarded damages if their negligence is equal to or less than the negligence of the defendant.

For instance, if an employee at the workplace did not wear protective equipment. And due to some other causes if an accident takes place but failure to wear protective gear leads to the injury, not the incident. If the court upholds this argument, the defendant may request that any damages granted to the claimant will be reduced by an amount reflecting the portion of the responsibility that the employee accepts. If a complainant is found to have contributed 20 percent, the same 20 percent will be deducted from the received compensation.

3.      Assumption of risk

Assumption of risk is the third main defence against the tort of negligence. A plaintiff is advised to “assume the risk” of injury if he enters a dangerous situation and is fully aware of the risk involved. The idea behind this defence is that if harmed, a plaintiff who knowingly consents to an action cannot sue later. “Voluntary” means the person who took the risk was given the option to stop it. If the person did not have any option to stop the danger then he could not have assumed the risk. The assumption of risk can either be expressed (written, verbal, or through any other expressed manifestation) or implied (plaintiff’s knowledge of the risk and subsequent conduct).

To prove the plaintiff knowingly accepted the danger, the defendant must show

  • that the plaintiff had real knowledge of the risk involved
  • that the plaintiff recognized and acknowledged the risks involved and
  • that the plaintiff voluntarily engaged in the action with full knowledge of the risk.

If a person engages in athletic activity, it is an implicit agreement that the person will experience predictably related injury to that sport.

In the case of Waters v. Safeway Stores, there was heavy snowfall and extremely low temperatures on 7th January. On 11th January, the plaintiff decided to go to Safeway for grocery purchasing. On seeing snow and slush on the pavement she decided to park the car in Safeway lot and walk to the store. While wearing snow boots, she walked into the store without falling, but on her way back to the car she fell on snow and ice. It was held that the plaintiff assumed the risk as a matter of law. Risk assumption requires venturousness and includes subjective assessment on whether the applicant completely recognized the nature and extent of the potential harm and subjected herself to it voluntarily. Safeway, in this case, was open to business, it made some effort to clear ice and snow, and allowed customers to park their vehicles in the lot. The plaintiff had entered the store successfully, and she believed she could exit safely if she had exercised due care in doing so.

4.      Act of God (Vis Major)

Vis Major or an act of God refers to a clear, violent, and unexpected act of nature that could have been foreseen by any amount of human foresight, and that could not have been resisted by any amount of human care and ability. Therefore, all actions triggered by nature ‘s fundamental forces come under its umbrella. For example, earthquake, tempest, extraordinary high tide, extraordinary rainfall, etc. If the cause of the injury suffered by the plaintiff is due to any natural accident which could not have been avoided even after taking reasonable care by the defendant, then the defendant will not be held responsible for the same provided he is able to prove the same in the court of law.

As in the case of Nichols v. Marsland, the defendant constructed a series of artificial lakes on his land, taking all reasonable precautions. There had been no negligence on the defendant’s part in constructing and maintaining the artificial lakes. That year it rained more than it ever rained in the human memory and as a result of which some of the defendant’s reservoirs burst and washed away four-country bridges. The court held that the defendant cannot be held liable due to the unanticipated rain, which was an act of act, and there was no negligence on the part of the defendant.

5.      Inevitable Accidents

Inevitable accidents refer to those situations where the tort in a consequence of an eventuality over one which did not have control. Unlike vis major, this act may need not always be a product of natural phenomenon, but can also be a result of the circumstantial situation over which human intervention could not prevent the inevitability. Inevitable accidents have no chance of being avoided by the exercise of ordinary care and caution. It means a physically unavoidable accident.

In the case of Brown v. Collins, both the plaintiffs and the defendant dogs fought and their owners tried to separate them. In an effort to do so, the defendant beat the dogs with a stick and injured the plaintiff accidentally in the eye. The plaintiff brought suit for assault and battery against the defendant. Since there was no negligence on the part of either party, therefore, it was held that it shall not amount to a case of tort and the plaintiff’s injury was considered to have been a result of an inevitable accident. 

6.      Volenti Non Fit Injuria

Volenti Non Fit Injuria is a defence used where the plaintiff himself/herself consented to a risky situation and therefore cannot complain later if those risks materialize or hold the other party liable for negligence. In other words, a willing victim who asked for trouble cannot complain if the trouble comes by. This defence is mostly used in a situation where a person consents to either be a participant or spectator to a hazardous sport or where there is some dangerous employment.

As in the case of Halls v. Brooklands, where the plaintiff went to witness a motor car race. During the race a collision took place and one of the cars hit the stand where the plaintiff was standing. As a result of which the plaintiff suffered injuries and brought a suit against the organizers of the club. It was held that the act is a contemplatable and foreseeable act when a person comes to see a motor race and hence, the organizers of the club were not negligent. By consenting to come to a motor car race the plaintiff impliedly subscribed to the risk of getting injured by such an occurrence and having agreed to bear the potential injury he cannot complain later.


Negligence as a tort has been accepted by the Indian law from the English law as a substantially important tort. It is considered to be one of the most common tort law classifications. For the plaintiff to succeed the claim of negligence all the mentioned elements have to be proven in the court of law. In cases of negligence, the burden of proof lies on the plaintiff. If the plaintiff succeeds to prove that there was negligence on the part of the defendant, later the defendant might take the defences to prove that his act was not negligently exercised and the damage caused is due to some other factors. The most common defences of negligence are contributory negligence, comparative negligence, and assumption of risk. Other defences include an act of God, injuries arising out of inevitable accidents and volenti non fit injuria.

Frequently Asked Questions (FAQs)

Q1. What does the term negligence refer to?

A1. 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.” Negligence refers to the breach of a duty caused by the omission of doing something that a reasonable man would do, driven by those factors which normally regulate the conduct of human affairs, or doing something that a prudent and rational man would not do. It is therefore characterized in three forms, that is, non-feasance (failure to do something that a person should have done), misfeasance (doing an act in a wrong manner where it should have been done properly), malfeasance (committing an act which a person should not have committed). Any negligent action can be a combination of commission and omission and at the same time a combination of non-feasance, misfeasance, and malfeasance.

Q2. What essential elements need to be proved in order to claim the tort of negligence?

A2. In order for a plaintiff to with the claim of negligence against the defendant, the plaintiff must prove three major elements. The first element to be proven is that there exists a duty of care towards the plaintiff by the defendant. After the duty of care has been established the second element is to prove that there was a breach of the said duty by the defendant and as a result of which the plaintiff has suffered an injury. The last element is to prove that there has been resulting damage due to the breach of the duty by the defendant. If all these elements are proven, the plaintiff will get compensation for the damages. 

Q3. What is the difference between an act of God and an inevitable accident?

A3. An act of God or Vis Major occur without any human intervention, the occurrence is due to the play of natural forces. It refers to a clear, violent and unexpected act of nature that could have been foreseen by any amount of human foresight, and that could not have been resisted by any amount of human care and ability, such as, earthquakes, floods, storms, volcanic eruptions, etc. Where as inevitable accidents are considered as a branch of an Act of God, it may occur due to the actions of humans as well. Inevitable accidents may occur either by the play of natural forces or by the intervention of human acts or by both. For instance, train accidents, traffic accidents, building collapses, etc.  

Q4. What is the difference between and volenti non fit injuria and contributory negligence?

A4. Volenti Non Fit Injuria is a complete defence while contributory negligence is a part of the defendant’s fault based on defence. The plaintiff as well as the defendant are both negligent in contributory negligence while the plaintiff himself gave consent for the harm to suffer in volenti non fit injuria. In the case of volenti non fit injuria, the complainant is aware of the act and the harm being suffered while he had no knowledge of the act in contributory negligence, although he should have known it.   



  1. Winfield and Jolowicz on Tort, Ninth Edition, 1971.
  2. Ratanlal & Dhirajlal: The Law of Torts.


  1. Stansbie v. Troman [1948] 2 KB 48.
  2. Blyth v. Birmingham Waterworks Co., 11 Exch. 781.
  3. Ramesh Kumar Nayak v. Union of India And Ors. AIR 1994 Ori 279.
  4. Joseph Alias Pappachan And Ors. vs Dr. George Moonjely And Anr., AIR 1994 Ker 289.
  5. Butterfield v. Forrester, (1809) 11 East 60.
  6. Waters v. Safeway Stores, Inc., [1993] 246 Va. 269, 435 S.E.2d 380.
  7. Nichols v. Marsland, (1875) LR 10 Ex.255.
  8. Brown v. Collins, 541 U.S. 948.
  9. Hall v Brooklands Auto-Racing Club [1933] 1 KB 205.



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