NEGLIGENCE

In day-to-day life, the word ‘negligence’ means nothing else but carelessness. Under the legal sense, it highlights the failure to perform the basic of care which the performer as a reasonable man should perform have in all the situations. In general, there is a legal duty to consider when it can be foreseen that failure to do so can cause harm. Negligence is a mode in which many types of injuries may occur by not considering such suitable precautions. Hence, in this article, we will study the ‘Negligence Tort Law’.

Definition of negligence-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.”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

The four elements that a plaintiff must prove to win a negligence suit are 1) Duty, 2) Breach, 3) Cause, and 4) Harm. When trying to establish a negligence case, you must make sure that all four elements have been met:

  • Duty:

The first step in analyzing a negligence scenario is to establish whether or not the defendant owed the plaintiff a duty. There are two kinds of duty that a defendant could owe the plaintiff. The first is the general “duty of care”. The duty of care is simply a duty to conduct yourself as a reasonable person, acting under similar circumstances, would conduct himself. In any negligence suit, we look at the defendant’s actions and try to determine whether a reasonable person would have acted the way the defendant acted had the reasonable person been in the same circumstances that the defendant was in. If the defendant’s behavior matches the reasonable man’s behavior the defendant has fulfilled his duty of care. If the defendant’s actions fall below what a court determines the reasonable man’s actions would have been the defendant has breached his duty.

The second duty is a “special duty” imposed by statute or case law which may exist either in addition to or in place of the regular duty of care. For example, A state passes a law requiring all homeowners to shovel snow from the sidewalk in the front of their houses. Thanks to this law every homeowner in the state has a special duty to all pedestrians to make sure that his sidewalk is clear of snow.

(2)Breach 
Once you have determined the existence of a duty, you must determine whether or not the defendant has breached his duty. A defendant can breach his duty both by acting in a certain manner or by failing to act in a certain manner. That is to say, a defendant can breach his duty either by acting in a manner that violates the reasonable man test or by not acting in a situation where he is legally required to act. 

(3)Cause
Once you have demonstrated that the defendant owed a duty to the plaintiff and that the defendant breached that duty, you must show that the breach was both the actual and proximate cause of the plaintiff’s harm.


(4)Harm
Finally, you must show that the plaintiff suffered harm as a result of the defendant’s breach. If a plaintiff does not suffer harm, he can not sue for negligence. 

Donoghue v Stevenson [ case law]

Donoghue v Stevenson is a landmark case on the tort of Negligence. In this case, the plaintiff had gone to a cafe to have a ginger beer, the bottle of which was sealed with an opaque cork. On emptying the contents of the bottle, a decomposed body of a snail came out, The plaintiff was taken ill due to the part consumption of the contaminated contents of the bottle.

It was held by the court that the manufacturer who manufactures the product for the end consumer with the assumption that with the lack of reasonable care on his part the consumer will suffer an injury, such a manufacturer owes a duty of care to the plaintiff.

Medical negligence

A person is expected to possess the required skill and understanding of his duties when he is in a particular profession. Especially in the medical profession where the stakes are very high, a huge onus lies on the practitioner to take care while choosing and administering a particular treatment for his patient.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

Do follow me on FacebookTwitter  Youtube and Instagram.

The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

If you would also like to contribute to my website, then do share your articles or poems at adv.aishwaryasandeep@gmail.com

We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.