The term Negligence is derived from the Latin word ‘negligentia”, which means ‘failing to pick up. In the general sense, the term negligence means the act of being careless and in the legal sense, it signifies the failure to exercise a standard of care that the doer as a reasonable man should have exercised in a particular situation. Negligence in English law emerged as an independent cause of action only in the 18th century. Similarly in Indian law, the IPC, 1860 contained no provision for causing the death of a person by negligence which was subsequently amended in the year 1870 by inserting section 304A.
Definition of Negligence
“Negligence is the breach of a legal duty to take care which results in damage, undesired by the defendant to the plaintiff.”
-Winfield and Jolowicz
“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 was owed.”
Theories Of Negligence
1. Subjective Theory
According to this theory of Salmond, negligence denotes a „State of mind‟. This state of mind varies from person to person and the person is liable only for his intentional acts only and not otherwise. It involves a personal element. If a person has acted to the best of his ability then he cannot be held liable for negligence.
2. Objective Theory
According to this theory of Pollock, negligence is a type of conduct that a reasonable man can avoid with a reasonable degree of care and caution..
In Blyth v. Birmingham Water Works Co, Negligence was defined as the omission to do something which a reasonable man would do or doing something which a prudent or reasonable man would not do.
Essentials of Negligence
To commit the tort of negligence, there are primarily 6 main essentials that are required. An act will be categorized as negligence only if, all the conditions are satisfied namely –
1) Duty Of Care
It is one of the essential conditions of negligence in order to make the person liable.
It means that every person owes, a duty of care, to another person while performing an act. Although this duty exists in all acts, in negligence, the duty is legal in nature and cannot be illegal or unlawful, and also cannot be of moral, ethical, or religious nature.
In the case of Stansbele vs Troman(1948), A decorator was engaged to carry out decorations in a house. Soon after The decorator left the house without locking the doors or informing anyone. During his absence, a thief entered the house and stole some property the value of which the owner of the house claimed from the decorator. It was held that the decorator was liable as he was negligent in leaving the house open and failed his duty of care.
In Grant v. Australian Knitting Mills Ltd., 1935 AC 85; From a retailer, the plaintiff purchases two sets of woolen underwear. After wearing it, he suffers from a skin disease. This problem occurs due to the excess amount of sulfates present in the wool and not removing it at the time of washing it due to negligence at the time of washing it. In this case, the manufacturers are completely liable as they are not able to perform their duty correctly.
2) The Duty must be towards the plaintiff
A duty arises when the law recognizes a relationship between the defendant and the plaintiff and requires the defendant to act in a certain manner toward the plaintiff. It is not sufficient that the defendant owed a duty of care to the plaintiff but it must also be established which is usually determined by the judge.
In the case of Bourhill v. Young (1943) the plaintiff who was a fishwife got down from a tram car and while she was being helped in putting her basket on her back, a motor-cyclist after passing the tram collided with a motor car at a distance of 15 yards which was on the other side of the tram. The motorcyclist died instantly and the plaintiff could not witness the accident or the dead body since the tram was standing between her and the place where the accident occurred. She had only heard the sound of the collision and once the body had been removed from the place of the accident, she visited the place and saw some blood which was left on the road. As a reaction to this incident, she suffered a nervous shock and gave birth to a stillborn child of 8 months because of which she sued the representatives of the deceased motorcyclist. It was held that the deceased had no duty of care towards the litigant and therefore she could not claim any damages from the deceased’s representatives.
The case of Donoghue v. Stevenson (1932) has evolved the principle that we each have a duty of care to our neighbor or someone we could reasonably expect to be affected by our acts or omissions. It was held that despite no contract existed between the manufacturer and the person suffering the damage an action for negligence could succeed since the plaintiff was successful in her claim that hat she was entitled to a duty of care even though the defective good i.e a bottle of ginger beer with a snail in it was bought, not by herself, but by her friend.
3)Breach of Duty to take care
It’s not enough for a plaintiff to prove that the defendant owed him a duty of care but he must also establish that the defendant breached his duty to the plaintiff. A defendant breaches such a duty by failing to exercise reasonable care in fulfilling the duty. In other words, the breach of a duty of care means that the person who
has an existing duty of care should act wisely and not omit or commit any act which he has to do or not do as said
In the case of Ramesh Kumar Nayak vs Union of India(1994), The post authorities failed to maintain the compound wall of a post office in good condition on the collapse of which the defendant sustained injuries. It was held that postal authorities were liable since they had a duty to maintain the post office premises and due to their breach of duty to do so, the collapse occurred. Hence they were liable to pay compensation.
In the case of Municipal Corporation of Delhi v. Subhagvanti (AIR 1966)
A very old clock tower situated right in the middle of a crowded area of Chandni Chowk suddenly collapsed thereby causing the death of many people. The clock tower was 80 years old although the normal life span of the clock tower should have been 40-45 years. The clock tower was under the control of The Municipal Corporation of Delhi and they had a duty of care towards the citizens. By ignoring to repair the clock tower, they had breached their duty of care toward the public and were thereby liable
4)Actual cause or cause in fact
In this scenario, the plaintiff who is suing the defendant for negligence has the liability to prove is that the defendant’s violation of duty was the actual cause of the damages incurred by him.
This is often called the “but-for” causation which means that, but for the defendant’s actions, the plaintiff would not have incurred the damages.
For example, When a bus strikes a car, the bus driver’s actions are the actual cause of the accident.
Proximate cause means “legal cause,” or the cause that the law recognizes as the primary cause of the injury. It may not be the first event that set in motion a sequence of events that led to an injury, and it may not be the very last event before the injury occurs. Instead, it is an action that produced foreseeable consequences without intervention from anyone else. A defendant in a negligence case is only responsible for those damages that the defendant could have foreseen through his actions.
In the case of Palsgraf vs Long Island Railroad Co(1928), A man was hurrying while trying to catch a train and was carrying a packed item with him. The employees of the railway saw the man who was attempting to board the train and thought that he was struggling to do so. An employee on the rail car attempted to pull him inside the train while the other employee who was on the platform attempted to push him to board the train. Due to the actions of the employees, the man dropped the package. Which contained fireworks, and exploded when they hit the rails. Due to the explosion, the scales fell from the opposite end of the station and hit another passenger, Ms. Palsgraf, who then sued the railway company. The court held that Ms. Palsgraf was not entitled to damages because the relationship between the action of the employees and the injuries caused to him was not direct enough. Any prudent person who was in the position of the railway employee could not have been expected to know that the package contained fireworks and that attempting to assist the man in the railcar would trigger the chain of events that lead to Ms. Palsgraf’s injuries.
6) Consequential harm to the plaintiff
Proving that the defendant failed to exercise reasonable care is not enough. It should also be proved that the failure of the defendant to exercise reasonable care resulted in damages to the When such damage is proved, the defendant is bound to compensate the plaintiff for the damages that occurred.
In the case of Joseph vs Dr. George Moonjely(1994) The Kerela high court awarded damages amounting to Rs 1,60,000 against a surgeon for performing an operation on a 24-year-old girl without following proper medical procedures and not even administering local anesthesia.
Res Ipsa Loquitur
Res ipsa loquitur is a Latin phrase that means “the thing speaks for itself.”
It is considered to be a type of circumstantial evidence which permits the court to determine that the negligence of the defendant led to an unusual event that subsequently caused injury to the plaintiff. Although generally the duty to prove that the defendant acted negligently lies upon the plaintiff but through res ipsa loquitur, if the plaintiff presents certain circumstantial facts, it becomes the burden of the defendant to prove that he was not negligent.
In Byrne vs Boadle(1863) The plaintiff was walking by a warehouse on the road and suffered injuries from a falling barrel of flour that rolled out of a window from the second floor. At the trial, the plaintiff’s attorney argued that the facts spoke for themselves and demonstrated the warehouse’s negligence since no other explanation could account for the cause of the plaintiff’s injuries.
1) Contributory negligence by the plaintiff
Contributory negligence means that when the immediate cause of the damage is the negligence of the plaintiff himself, the plaintiff cannot sue the defendant for damages and the defendant can use it as a defense. This is because the plaintiff in such a case is considered to be the author of his own wrong. It is based on the maxim volenti non fit injuria which states that if someone willingly places themselves in a position that might result in harm, they are not entitled to claim for damages caused by such harm.
In Butterfield v. Forrester, (1809) 11 East 60; the defendant had put a pole across a public thoroughfare in Derby, which he had no right to do. The plaintiff was riding that way at 8’O clock in the evening in August when dusk was coming on, but the obstruction was still visible from a distance of 100 yards, he was riding violently, came against the pole, and fell with the horse. It was held that the plaintiff could not claim damages as he was also negligent.
In Shelton Vs L & W Railway(1946), while the plaintiff was crossing a railway line, a servant of the railway company who was in charge of crossing shouted a warning to him. Due to the plaintiff being deaf, he was unable to hear the warning and was consequently injured. The court held that this amounted to contributory negligence by him.
2) An Act of God
An Act of God is a direct, violent, and sudden act of nature that by any amount of human foresight could have been foreseen and if foreseen could not by any amount of human care and skill have been resisted. Thus such acts which are caused by the basic forces of nature come under this category.For example storm,tempest,extraordinary high tide,extraordinary 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 liable for the same provided that he proves the same in a court of law.
In the case of Nichols v. Marsland (1876) in which the defendant had a series of artificial lakes on his land. There had been no negligence on the part of the defendant in the construction and maintenance of the artificial lakes. Due to unpredictable heavy rain, some of the reservoirs burst and swept away four country bridges. It was held by the court that the defendant could not be said to be liable since the water escaped by the act of God.
3) Inevitable Accident
An inevitable accident can also be called a defense of negligence and refers to an accident that had no chance of being prevented by the exercise of ordinary care, caution, and skill. It means a physically unavoidable accident.
In the case of Brown v. Kendal (1850) the plaintiff’s and defendant’s dogs were fighting and their owners attempted to separate them. In an effort to do so, Defendant beat the dogs with a stick and accidentally injured Plaintiff, severely injuring him in the eye. Plaintiff brought suit against Defendant for assault and battery. It was held that the injury of the plaintiff was a result of an inevitable accident.
In Holmes v. Mather, (1875) LR 10 Ex.261, 267; a pair of horses were being driven by the groom of the defendant on a public highway. On account of the barking of a dog, the horses started running very fast. The groom made the best possible efforts to control them but failed. The horses knocked down the plaintiff who was seriously injured, it was held to be an inevitable accident and the defendant was not liable.
In Stanley v. Powell, (1891) 1 QB 86; the plaintiff and the defendant, who were members of a shooting party, went for a pheasant shooting. The defendant fired at a pheasant, but the shot from his gun glanced off an oak tree and injured the plaintiff. It was held that the accident was an inevitable accident and the defendant was not liable.
Negligence as a tort has evolved from English law and is accepted by Indian law as a substantially important tort. As discussed negligence is of two types, civil and criminal and each has various repercussions. In order to prove that an act was negligent, it is necessary to prove all the essentials namely duty, breach of duty, damages, and actual and proximate cause. An important maxim regarding negligence i.e Res Ipsa Loquitur is used by the courts when a negligent act cannot be explained. Also, the defenses in a suit for negligence can be used by the defendant to defend himself from a suit issued by the plaintiff.
7. Ratanlal & Dhirajlal The Law of Torts 28th Edition by Lexis Nexis Publication
8. R.K. Bangia Law of Torts, 26th Edition 2021 by Allahabad Law Agency
9. M.N. Shukla The Law of Torts 18th Edition Central Law Agency
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