negligence

ARTICLE: NEGLIGENCE

This article is about negligence under law of torts and the details that are under it, covering the definition of negligence, its meaning, the duties like duty of care, to the plaintiff, standard of care, breach of duty, and liability. like magnitude of risk, importance of object, amount at which services are offered and damages under negligence, including Nervous shock with suitable examples and case laws.

Negligence

According to professor Winfield Negligence is the breach of a legal duty to take care, which results in damage, undesired by the defendant to the plaintiff.

In turn, it would mean that negligence is the breach of a duty caused by not doing what a reasonable man under those conditions normally would as the conduct of human affairs or not doing so

It’s a person suffers grossly caused by another person’s negligence, that person may be able to sue him for damages and to compensate for their own. such loss may include physical injury illness loss or harm to property

Negligence is the breach of a 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 for doing something which prudent and reasonable man would not to actionable negligence costs in the neglect of the use of ordinary care for skill towards a person to whom the defendant was the duty of absorbing ordinary care and skin by which neglect the plaintiff has suffered injuries to his person or property

According to this definition of negligence, we can find three major points of negligence which are to exercise due care as part or partly complaint towards a party as a legal duty because of:

  1. the formers conduct inside the scope of the duty that has been spoken off
  2. the second constituent is that there has been a breach of such said duty
  3. lastly the third constituent that we would assume is that there has been some damage

Negligence could have three meanings to them could be:

  • Men’s rea for the state of mind that the person is in and does not intend to do this so that is that there should be no intention
  • There is a careless approach or if one may say Aquarius conduct
  • Lastly third would be the breach of a duty that is thereby the contract or any other common law statute law

All three of these are combined and can be applied in any cases

Essentials of negligence to show that an action for negligence has taken place the plaintiff must prove the following essentials of negligence

First is that the defendant would a duty of care to the plaintiff

The second is that the defendant made a breach of the duty

And the third is that the plaintiff himself suffered damage because of the breach caused by the defendant

  1. Duty Of Care To The Plaintiff

One of the essential elements which are required to make an individual obligated is the duty of care. This duty is to say that a man has an obligation of care to another person. If he doesn’t owe that obligation, he can’t be held at risk for an accident or an act.

Here duty means legal duty not a moral or religious duty

It should be clear and established by the plaintiff that the defendant poses him a specific legal duty to take care and of which the defendant may have made bridge it depends upon each case whether a duty exists

In the case of Donoghue v/s Stevenson,
a bottle of Ginger beer was bought from a retailer for the applicant for his friend. Some of the contents of the bottle poured inside a container and some were consumed by the friend. When the rest of the contents were poured into another container a decomposed body of a snail floated.

The appellant stated that the friend seriously suffered in terms of health. On having drunk part of the contaminated contents of the body since the bottle was dark and opaque and closed with the metal cap the contents could not be seen or determined by inspection through the eye. She brought an action against the manufacturer for damage

To this case, Lord Atkin said :
A manufacturer of products which he sells in such a phone to show that he intends when to reach the ultimate consumer in the form in which date left him with no reasonable possibility of immediate examination and with the knowledge that the absence of reasonable care in the preparation for putting up of the products will result in an injury to the consumer life or property was a duty e to the consumer to take that reasonable care:


  1. Duty depends on reasonable foreseeability of injury

Whether a defendant owes a duty to a plaintiff depends on the extent to which he reasonably knew that an injury would occur.
If a defendant can not reasonably foresee an injury to a plaintiff, he has a duty to prevent it. if he fails to do so he is made liable
duty to take care is a duty that a person has to avoid doing or neglecting anything that may have a reasonable and probable consequence for others.
if the duty is not observed one useful test is to enquire how obvious the risk must have been to an ordinary prudent man

In the case of T.G. Thayumanavar v govt of Tamil Nadu
There was an electric wire on top of the road running across it the wire then fell a cyclist cycling on the road who then died due to electrocution by the wire it was found out later that the incident occurred due to the negligence of the electricity board and that it was not an act of God

Hence the respondents were held liable in this case.
 

  • There is no liability when the injury is not foreseeable

In the case of Ryan vs young,

The servant of the defendant was driving a lorry and while driving the said lorry he suddenly died, which resulted in an accident and an injury to the plaintiff. To the defendant, the driver appeared healthy and he could not foresee the sudden death of the driver which led to the plaintiff’s injury. In this case, it was held that the accident was due to an act of God and that the defendant was not liable for negligence.
 

  • Reasonable foreseeability does not mean remote possibility

To prove that there has been negligence it is not just enough to prove that there has been an injury but to prove that there was a reasonable likelihood of the injury to occur

Foreseeability does not include any idea of likelihood at all

Here the duty is to protect against probabilities instead of bear possibilities

In the case of SK Devi versus Uttam Bhoi,

there was a little boy around 8 years of age and was hit by a truck in the afternoon around 2:30 p.m. in broad daylight as the child was hit by the truck he received multiple injuries, in this case, it was held that the driver while driving near a place where children usually are should himself have taken greater care while driving as the behaviour of children is unpredictable from the nature of the injuries received by the child it was presumed that there was negligence on the side of the driver and he was held liable.
 

  • Breach Of Duty

Breach of duty here means that there was due care not observed which was necessarily required in the given situation.

There is a standard of care and to check the standard of care it is compared to the standard of a reasonable man or ordinary prudent man. If the defendant in the case has acted like a reasonable man then there has been no negligence on his part.

  1. Standard Of Care Is Required

The law takes three points of consideration to determine whether the standard of care is required

  1. importance of the attained object

    1. The law does not expect the greatest possible care but it requires care of, that a reasonable man under certain circumstances would take
    1. The law allows some chance of risk under public interest so that it continues
    1. A balance has to be measured between the importance and usefulness of risk created
    1. For example, the speed of an ambulance and the same speed for a car may be negligent for one but not the other
       
    1. The risk  magnitude

The amount, degree or magnitude of care required is varied according to every situation. If an act is careful in one situation in the other it might not be so. The law does not expect the same amount of care in each situation. The amount of risk involved decides the precautions which are expected of the defendant to take.

This magnitude of care depends upon the degree of risk which could have been foreseen by a reasonable and prudent man. There is no absolute standard but it is said that generally the amount of care is directly proportional to the amount of risk. People who engage in operations that are inherently dangerous must take precautions that are not necessary for people who are not engaged in such situations or live in the ordinary routine of daily life.
 

  1. The services offer for their amount

The amount of care depends also on the kind of services that have been offered by the defendant and the consideration charged.
 

  • Damages
    It is necessary that the breach of duty by the defendant must cause damage to the plaintiff

    It has to be shown by the plaintiff that the damage caused is not to remote a consequence of the defendant’s negligence.

    In the cases in which the plaintiff claims damage the responsibility is on the plaintiff to prove all details of the damage in cases like these the facts that help the court determine the amount of damages required are held relevant.

    Assessing of damages duty is on the court, and to do so the court shifts to rules and regulation and the practices of the courts. The court rules and concludes every question that would permit the parties to gain final judgement as a proper measure of damages was applied remoteness of damage and the amount which is entitled to the plaintiff.
  1. Proof Of Negligence: Res Ipsa Loquitur

It is a general rule that the plaintiff has to prove that the defendant was negligent. The initial burden of a prima facie case lies heavily on the plaintiff himself, but once this responsibility is performed, it is on the defendant to prove that the incident was of inevitable accident or contributory negligence on the part of the plaintiff. If negligence on part of the defendant is not proved by the plaintiff, the defendant will not be held liable.

It is not always necessary to have direct evidence of negligence, it may be inferred from the situation of the case.

A plaintiff’s action will fail if he is unable to establish in a prima facie case by either direct or circumstantial evidence that the defendant was negligent.

Although it is a general rule that the discharge of burden of proving negligence is on part of the plaintiff is to the defendant, there are some certain cases where the plaintiff need not do so and the inference of the negligence is drawn in from the facts of the case.

‘Res Ipsa Loquitur’ which is a Latin maxim, and means that ‘the thing speaks for itself’, there is a presumption of negligence.

When there is an incident, and the explanation of it can only be from the negligent part of the defendant which otherwise would not have occurred in such cases it is sufficient for the plaintiff to prove that there had been an accident and nothing more.

The defendant can try and avoid his liability by disproving negligence on his own part. For the maxim, ‘Res Ipsa Loquitur’, to be applicable it is important that the incident has been under the influence of the defendant.

hence When the events surrounding the occurrence are completely or solely under the command of the defendant or his servant and the incident Does not occur in the ordinary course of things without negligence on the defendant’s part the maxim applies and the burden of proof is shifted from the plaintiff to the defendant

Here instead of the plaintiff proving negligence on the defendant’s part the defendant himself has to prove that he was not negligent in his conduct.
 

  • Collapse Of Built Structure

In the case of the Municipal Corporation of Delhi versus Subhagwanti,

There was a clock tower situated close to the main Bazaar of Chandni Chowk in Delhi and it collapsed which then, in turn, led to the death of a number of people. this said property belongs completely to the Municipal Corporation of Delhi and was under its control the normal life of such structures is 40 to 45 years but this particular clock tower was 80 years old. having regard for the type of mortar used and under the circumstances, the Supreme Court of India held that the collapse of the property is self-explanatory and tells its own story, here i was inferred that there was negligence on the part of the defendant and since they could not prove the nonattendance of negligence on their part, they were held liable.
 

  • Foreign matter left inside after surgery

In the case of Nihal Kaur v. Director P.G.I., Chandigarh: During the surgery, a pair of scissors was left inside the body of a patient. His condition then worsened and resulted in his untimely demise. After the cremation of his body, scissors were recovered from the ashes. The dependents of the deceased were awarded with a compensation of Rs. 1,20,000.

In the case of A.H. Khodwa v. State of Maharashtra: After childbirth, the patient had undergone a sterilisation operation. The doctor who was performing the operation left inside the abdomen of the patient, a mop. The patient had died due to peritonitis after several days. the doctor performing the surgery was under the presumption of negligence. The State running the hospital was then held liable.
 

  • Maxim not applicable if different inferences possible

The maxim mentioned above “res ipsa loquitur” Is applicable only when the inference from the facts suggest that the accident could not have occurred had it not been for negligence at the defendant’s part.

In the case of SK Allah Bakhas and others V Dhirendra Nath Panda And Another

There was an unmanned level crossing of the railway train and an autorickshaw tried to cross it while the train was at a short distance the rickshaw was hit by the train, therefore, harming the occupants it was held that it was an effort on the part of the rickshaw driver to cross when the train was approaching and that he was negligent consequently the assumption of negligence was raised against the rickshaw driver.

When circumstances do not allow for clear and unambiguous terms to be used, the accident may be caused by other factors. and the maxim is not applicable.
 

  • Rebuttal of the presumption of negligence

the rule of the maxim res ipsa loquitur Shifts the burden of proof from the plaintive proving negligence to the part of the defendant requiring to disprove itThe defendant can escape liability by proving what seemed as negligence on his part was due to some of the other factors which were beyond their control.

In the case of Bihar State Road transport Corporation versus Smt. Manju Bhushan Sinha[
There were two rickshaw cycle one trying to overtake the other and that is when a state transport bus from behind hit a rickshaw with such a great force that the applicant was thrown at the distance for more than 10 feet on the road since a rickshaw is a slow moving vehicle, There was a presumption of negligent driving on the side of the bus driver it was the duty of the bus driver to slow the bus under such circumstances.

Nervous Shock

What is a comparatively new concept in the law and provides relief to a person when the injury cost to them is not by impact but by nervous shock that is what he has seen or heard.

In the case of Dooley vs. Cammell Liard and co.
There was a driver of a crane ,Witnessed the breaking of the rope of the crane and the load of the crane fell onto the ship where some men were at work. from looking at this scenario he underwent a nervous shock and it was discovered later that the rope had been broken due to the negligence of the defendant therefore they were held liable to the plaintiff.

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