Negligence (Lat. negligentia) is a failure to exercise adequate or ethically controlled care that is required to be practiced under particular circumstances. The area of tort law known as negligence includes damage caused by failing to act with possibly extenuating circumstances, as a result of carelessness. The central principle of negligence is that people should exercise reasonable caution in their acts, taking into account the possible damage they may cause to other people or property foreseeable.
Meaning
The term ‘negligence’ means pure carelessness. Legally, it means failure to exercise the level of care that should have been exercised in the circumstances by the doer as a reasonable individual. There is a legal duty in general to be careful when it was reasonably foreseeable that failure to do so was likely to cause injury. Negligence is a mode in which not taking such adequate precautions can cause many kinds of harms.
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[1]”.
In Blyth v. Birmingham Water Works Co.,[2]
ALDERSON, B. Defined negligence as, 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,[3]; LORD WRIGHT stated that negligence implies more than headless or reckless conduct, whether in action or omission; it connotes properly the complicated definition of duty, breach and harm sustained thereby by the individual to whom the duty was due.
Essentials of Negligence
In a negligence case the claimant must show the following important factors
1. DUTY TO TAKE CARE: One of the basic requirements of negligence liability is that the defendant owes a legal responsibility to the plaintiff. The following case laws should show some light on that main aspect.
In Grant v. Australian Knitting Mills Ltd.[4]; the plaintiff bought from the manufacturer two sets of woolen underwear and met the skin disease by wearing an underwear. The woolen underwear contained an abundance of sulphates that had been negligently removed by the producers when washing them. The producers were held responsible for failing to perform their care obligation.
DUTY TO WHOM:
Donoghue v. Stevenson,[5]took the concept forward and broadened the reach of the obligation to state that the responsibility thus extended applies to your neighbor. Explaining who my neighbor LORD ATKIN is, he said, the answer must be “those people who are so closely and directly affected by my act that I should reasonably have them in contemplation as so affected when I direct my mind to the acts or omissions that are called into question.”
2.DUTY Should BE TOWARDS THE PLAINTIFF–
It is not enough for the defendant to have an duty to take care of him. It must also be demonstrated that the defendant owed the plaintiff a duty of care.
In Bourhill v. Young[6]; the plaintiff, a fishwife, flew by tram. As she was helped to place her basket on her back, a motorcyclist collided with a motor car on the other side of the tram at a distance of 15 yards and died instantly after passing the tram. The plaintiff could not see the deceased nor the incident because the tram stood between her and the incident site. She had just heard of the accident, and she went to the place after the dead body was removed, and saw blood left on the lane. She suffered a nervous shock, and she gave birth to an 8-month-old stillborn child. She has sued the deceased motorcyclist’s representatives. The deceased was found to have no duty of care against the complainant and thus did not seek damages.
3.BREACH OF DUTY TO TAKE CARE
Another necessary requirement for the negligence liability is that the plaintiff must show that the defendant has committed a breach of the duty of care or that he has failed to perform the obligation.
In Delhi v. Subhagwanti Municipal Corporation[7]; a clock tower in the heart of Chandni Chowk, Delhi collapsed causing the death of many people. The system was eighty years old when its normal life was 40-45 years old. Dellhi’s Municipal Corporation with structure control failed to take care of it, and was therefore liable.
In Municipal Corporation of Delhi v. Sushila Devi[8]; 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.
4.CONSEQUENT DAMAGE OR CONSEQUENTIAL HARM TO THE PLAINTIFF
The last essential requirement for negligence is that the damage caused to the complainant resulted from the breach of the duty. The harm could fall under the following classes:-
- Physical harm, i.e. bodily harm;
- Damage to reputation;
- The damage to the property, i.e. the land and buildings and the rights and interests thereof, and the goods thereof;
- The economic downturn; and
- Mental illness or nervous shock.
In Achutrao Haribhau Khodwa v. State of Maharashtra[9]; doctor’s negligence left a cotton mop inside the body. The doctor was held liable in the present case.
Defenses for Negligence
Following defenses in a negligence action:-
1. Contributory Negligence:
It was the common law rule that someone who, through his own negligence, contributed to the accident he complained of, should not take an action against anyone in that regard. Since, in fact, he should be considered the victim of his error.
Butterfield v. Forrester[10],; the defendant had placed a pole across a Durby public road which he had no right to do. The plaintiff was riding that way at 8 o’clock in the evening in August, at dusk, but the obstruction was still visible from a distance of 100 yards.He was driving recklessly and so can’t claim damages for negligence as he was at fault.
2. Act of God:
This is such a clear, aggressive, unexpected and unavoidable act of nature as could not have been foreseen by any amount of human foresight or, if foreseen, could not have been resisted by any amount of human care and ability. For instance, storm, extraordinary rainfall, extraordinary high tide, earth quake etc.
In Nichols v. Marsland[11],; the defendant had a series of artificial lakes on his land which had not been ignored in the building or maintenance of. Any of the reservoirs burst and held four country bridges, due to an unusually heavy flood. It was held the defendant was not responsible as the water escaped by the act of God.
3. Inevitable Accident:
Inevitable accident also functions as a defense against negligence. An inevitable accident is what might not be prevented by ordinary care, caution, and ability. That means physically unavoidable accident.
In Brown v. Kendal[12]; the plaintiff and the defendant’s dogs fought while the defendant tried to separate them, he accidentally hit the nearby plaintiff in the eye. The plaintiff’s injury was deemed to be the result of an unavoidable accident and the defendant was not liable. In Holmes v. Mather[13]; the defendant’s groom was driving a pair of horses on a public highway. Instead of a dog’s barking the horses started running really quickly. The groom made best efforts to keep them under control but failed. The horses knocked down the critically wounded complainant, it was considered to be an unfortunate mistake and the defendant was not responsible.
In Stanley v. Powell[14]; the plaintiff and the defendant, who were members of a shooting team, went to shoot pheasant. The defendant fired at a faisan but his gun shot glanced off an oak tree and wounded the plaintiff. The crash was considered to be an inevitable and the defense was taken.
Reference
- Winfield And Jolowicz, Tort 360 (W. V H. Rogers., 18th Ed. Sweet &Maxwell, 2010).
- The Law Of Torts, (Ratanlal, Dhirajlal, 20th Ed. 2010).
- Introduction To The Law Of Torts And Consumer Protection (Avtar Singh, Harpreet Kaur, Lexis Nexis, 13th Ed., 2013).
- Law Of Torts, (Shivani Verma, Taxman).
- Law Of Torts, (P.S.A. Pillai, Ebc, 9th Ed., 2017).
- Hepple And Matthhews’ Torts Law, (David Howarth, Et. Al., Hartpublishing, 7th Ed., 2015).
[1] Winfield and Jolowicz on Tort, Ninth Edition, 1971, p. 45
[2] LR 11 Exch. (1856)
[3] 1934 AC 1
[4] 1935 AC 85
[5] 1932 AC 562
[6] 1943 AC 92
[7] AIR 1966 SC 1750
[8] AIR 1999 SC 1929
[9] (1996) 2 SCC 634
[10] (1809) 11 East 60
[11] (1875) LR 10 Ex.255
[12] (1859) 6 Cussing 292
[13] (1875) LR 10 Ex.261, 267
[14] (1891) 1 QB 86
