We are aware that the Indian Law of torts is totally based on the English Common Law. Thus, the laws related to negligence modified by the courts of India are based on the principles of justice, equity and good conscience. The term negligence is derived from the Latin word negligentia, which means failing to do something. Negligence is termed as the 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 man would not do. Previously, in IPC there was no provision regarding negligence or death caused by negligence. This particular thing was amended in the year 1870 by the insertion of section 304A. Negligence involves failure to take standard care in a particular situation, where usually a prudent person must do to avoid any kind of damage to the plaintiff. It is considered a civil tort that occurs when a person breaches his duty of care and undergoes injury.
- Duty of Care: The burden of fact lies on the plaintiff. He needs to prove that the defendant owed him a duty of care and undergoes legal injury through breach of terms. The obligation to exercise standard care is the duty need to be performed by the defendant. The nature for negligence is purely legal instead of moral or religious.
- Breach of Duty: The primary concern of the defendant is to carry out his duty like a reasonable man. But if he fails to so or breaches any clause of the terms and conditions then the plaintiff must be compensated for that.
- Damage: As a result of breach of duty by the defendant, the plaintiff suffers some damage or legal injury is caused. Usually, the unliquidated damages are compensated by the defendant except under certain circumstances.
DEFENSES AVAILABLE IN A SUIT FOR NEGLIGENCE:
- An Act of God: An Act of God in legal terms is defined as an extraordinary occurrence of circumstance without human intervention, which couldn’t be foreseen or estimated before. There must be working of natural forces. For example, storm, heavy rainfall etc. If the cause of injury or death of a person is due to the happening of a natural disaster, then the defendant will not be held liable for the same. The burden of proof lies on the defendant that the injury caused due to natural disaster.
- Inevitable Accident: Accident means an unexpected injury and if the same couldn’t be foreseen and avoided, in spite of reasonable care taken by defendant. It is considered as a good defence, if the defendant proves that neither he intended to injure nor he could avoid the injury by taking reasonable care. In Brown vs Kendall, the plaintiff’s and the defendant’s dogs were fighting. While the defendant was trying to separate them, he accidentally hit the plaintiff in his eye, who was standing nearby. The injury to the plaintiff was held to be the result of pure accident, for such act no one is held liable.
- Volenti non fit injuria: It means voluntary acceptance of the risk of injury. If the defendant can prove that the claimant accepted the risk of loss or damage, they will not be held liable. Acceptance may be express or implied through the claimant’s conduct.
Res Ipsa Loquitur is a Latin term which means the thing speaks for itself. To prove negligence under this doctrine the plaintiff must prove (1) the incident doesn’t usually happen without negligence, (2) the object that caused the harm was under the defendant’s control (3) the plaintiff didn’t contribute to the cause. The initial burden of making out of at least a prima facie case of negligence as against the defendant lies heavily on the plaintiff. But, once the onus is discharged, it will be for the defendant to prove that the incident was the result of an inevitable accident or contributory negligence on the part of the plaintiff. Where this doctrine is applied, a presumption of fault is raised against the defendant, which if he is to succeed in his defence, must overcome by contrary evidence. For example, A doctor leaves his bracelet inside the stomach of the patient after he performs surgery. If such a case comes to the court, the circumstances speak for themselves and the defendant is presumed guilty.
Negligence as a tort has evolved from English law. Negligence is categorised into two types, civil and criminal and each has its own repercussions. The punishment for a person who was liable in a civil negligence case only extends to the extent of damage caused to the plaintiff i.e. compensation for the damages. But, in criminal negligence cases, the punishment is more severe and the defendant can be convicted for 2 years along with a fine as per section 304A under IPC. An important maxim related to negligence i.e. Res Ipsa Loquitur is used by the courts when a negligent act cannot be explained. The defences in a suit for negligence can be used by the defendant to defend himself.
 Nichols vs Marshland (1876)
 Stanley vs Powell (1891)
 Morgan vs Sim (1857) 11 Moo P.C 307,312
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