Tort of Negligence

Introduction: The words ‘Neglect and ‘Negligence’ have the same origin. They originate
from the Latin expression ‘Neclego’ meaning ‘not together. That is the failing to take such
care, show some attention, pay such courtesy, etc. as may be rightfully demanded.
Negligence is often used to denote the habit of neglecting that, which ought to be done.
Neglect has a passive sense which negligence has not. It does not state any specific attitude of
mind but it states a matter of objective fact, which may be produced either by intentions or
negligence. Thus, negligence is simply neglect of some care, which one is bound to exercise
+towards another.

History: 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.The common law to begin with did not recognize negligence as a
separate tort. It was considered as only a way of committing other torts. Action for damages,
which fall short of trespass, was claimed through assumed action. The concept of negligence
gradually came to be recognized in certain circumstances those engaged in certain common
callings such as ferryman, surgeons, innkeepers etc. the development of negligence as a
separate. The word negligence has two meanings. Firstly it indicates the state of mind of a
party in doing an act i.e. subjective theory of negligence. Secondly it means a conduct, which
the law deems wrongful i.e. objective theory of negligence. Originally negligence was used in
its subjective sense. Negligence in the sense of conduct refers to the behaviour of a person
who, although innocent of any intention to bring about the result in question, has failed to act
up to the standard set by the law. Although it is clearly a mental element, still, judges in
deciding whether a man is guilty of negligent conduct or not apply an external standard and
do not take into consideration his mental attitude at the moment of the act. Thus, negligence
is a conduct and not a mental element. It differs from an intentional act but it is equally
important to note that all careless acts do not constitute negligence. Tort has taken place in
the first part of 19th century. The reasons were rapid industrialization, fast means of transport
and resultant increase in accidents.

I. MEANING: In everyday usage, the word ‘negligence’ denotes mere carelessness. In

legal sense it signifies failure to exercise standard of care which the doer as a reasonable man
should have exercised in the circumstances. In general, there is a legal duty to take care when
it was reasonably foreseeable that failure to do so was likely to cause injury. Negligence is a
mode in which many kinds of harms may be caused by not taking such adequate precautions.
In the 1932 case of Donoghue v Stevenson, the House of Lords decided that a person should
be able to sue another who caused them loss or damage even if there is no contractual
relationship. Donoghue was given a bottle of ginger beer by a friend, who had purchased it
for her. After drinking half the contents, she noticed that the bottle contained a decomposing
snail and suffered nervous shock as a result. Under contract law, Donoghue was unable to sue
the manufacturer because her friend was party to the contract, not her.

However, the House of Lords decided to create a new principle of law that stated everyone
has a duty of care to their neighbour, and this enabled Donoghue to successfully sue the
manufacturer for damages.

II. 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
plaintiff1.

In Blyth v. Birmingham Water Works Co2 ALDERSON, B. defined 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 Mullan3 LORD WRIGHT said, 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 owing.

How is Criminal Negligence Different from Civil Negligence?

 Criminal negligence is said to take place when a person acts in a particular way which
is an extreme departure from which a reasonable person would act in a similar or
same circumstance. The difference in civil negligence is that the conduct may not be
seen as a radical departure from the way a reasonable person would have responded.

 Civil negligence occurs when a person fails to exercise ordinary care or due diligence
but criminal negligence relates to a conduct that is considered so extreme and rash
that it is a clear divergence from the way an ordinarily prudent person would act and
is considered to be more than just a mistake in judgment or distraction.

 In civil negligence, there is a lesser burden of proof because the plaintiff in such a
case only has to prove that it is most likely that the defendant was negligent. But in
criminal negligence, the plaintiff has to prove “beyond a reasonable doubt” that the

1
Winfield and Jolowicz on Tort, Ninth Edition, 1971, p. 45
2
(1856) LR 11 Exch. 781
3
1934 AC 1
 defendant was negligent which is the highest standard of proof which means that the
evidence is so strong that there is no other logical explanation besides the fact that the
defendant acted with criminal negligence.

 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

 In criminal negligence cases, the punishment is much more serious and can be
convicted for a prison term, fine and probation supervision. Example the punishment
for criminal negligence amounting to death under section 304A of IPC can extend to 2
years of jail and fine or both.
 For example, if someone driving a vehicle under the influence of drugs and alcohol
and caused the death of an individual, it would amount to criminal negligence since In
criminal negligence cases, the punishment is much more serious and can be convicted
for a prison term, fine and probation supervision. Example the punishment for
criminal negligence amounting to death under section 304A of IPC can extend to 2
years of jail and fine or both.

Theories of Negligence: There are two competing theories as to the nature and meaning
of the term negligence. According to one theory negligence is a state of mind, which is
known as the subjective theory of negligence. According to the other negligence is not a state
of mind but merely a type of conduct, which is called objective theory of negligence.

Subjective Theory of Negligence:- According to Austin negligence is faulty mental

condition which is penalized by the award of damages. Salmond says negligence is culpable
carelessness. According to him negligence essentially consist in the mental attitude of undue
indifference with respect to one’s conduct and its consequences it has been support by
Wharton, street and Winfield.

Case of Vaugham V.Menllove (1837) is an example of full advertence to one’s conduct and
its consequences. In that case inspite of warning that his haystack would be overheated and
would catch fire that would spread to neighboring lands and cause damage, the defendant
said that he would take his chance and there was damage due to fire. It was held that the
defendant liable.

Objective Theory of Negligence:- According to this theory negligence is not a

particular state of mind or form of ‘mensrea’ at all but a conduct which falls below the
standard prescribed by law for protection of others against unreasonable risk of harm. The
chief supporters of this theory are Terry, Education, Bevam, Holmes and Pollock. In support
of this theory Pollock writer’s negligence is the contrary of diligence and no one describes
diligence as a state of mind. Negligence is failure to achieve the objective standard of a
reasonable man. Thus if a defendant failed to achieve that standard and caused damage to
another, it would be no defence that he as been anxious to avoid harm and has taken utmost
care. For example, to drive at night without light or to drive in a crowed place without proper
brakes are negligence how so ever careful mentally the driver may be. Objective theory of
negligence is justified on the ground that it is easier to prove conduct than state of mind and it
is the conduct and not state of mind that causes harm. If one’s conduct is abnormally
dangerous he cannot escape liability by virtue of his close attention.

The better between the subjective theory and objective theory

The balance tilts in favour of objective theory. The law cannot look into the state of mind of
the doer, it assumes that the doer of an act has such capacity to judge and foresee
consequences as a man of ordinary prudence. Clark and Lind sell in their book on torts say
“negligence is the omission to take such care as under the circumstances it is the legal duty of
a person to take. It is in no sense a positive idea and has nothing to do with state of mind.”
The objective theory has found judicial approval in many leading cases. Reconciliation of
both the views is not impossible. In fact negligence bears two meanings and whether it is
used in one sense or the other will depend upon the context. Where it is used in contract to
wrongful intention it is used in the sense of a mental condition. In many cases it becomes
necessary to ascertain whether a particular act was done with a guilty intention or merely
carelessly. Suppose a person left poison on the table, which another eats? Here the same
conduct may lead to different consequences according to mental state of the actor. If he left
the poison with an intention that the other person should eat it, he is guilty of intentional
wrong but if he left the poison inadvertently he is guilty of negligence only. The conduct is
same but to ascertain whether it is merely negligent or intentional an inquiry into his mental
condition is necessary. On the other hand when negligence is used as contrasted with
inevitable accident, the standard is generally objective. If his conduct falls below the standard
of a reasonable man he is negligent. If it confirms to that standard he is not negligent and can
escape liability. The reality is that intention or negligence originally indicated a mental
condition, but since what passes in ones mind cannot be easily ascertained, his state of mind
came to be judged by his external acts. Thus, a person shooting at another cannot be herd to
say that he had no intention to kill him. This principle is based on normal experience that a
person must know the ordinary consequences of his conduct. In tort of negligence this
approach has gone a little further to develop a common standard of careful behaviour and to
discourage avoidance of liability on the basis of personal equation. Even when one considers
negligence, as a mental condition for purposes of other torts standard cannot in practice be
wholly subjective. Law judges mental state from external behaviour. But incase of tort of
negligence standard is completely objective. Now, it is well established that a person is liable
in negligence if he harms another person by not complying with the standard of care expected
of a reasonable man how so ever cautious and careful mentally he might have been.
However, a close examination of the subjective theories of negligence would reveal that the
dispute is only formal. In ultimate analysis the negligence is inadvertence or indifference as
to probable consequences of one’s conduct. When consequence is reasonably foreseeable but
he fails to take reasonable precautions the inadvertence or indifference is presumed. Thus the
subjective theory of negligence emphasizes the actual in inadvertence while the objective
theory of negligence attaches more importance or indifference.

III. ESSENTIALS OF NEGLIGENCE: - In an action for negligence, the plaintiff has

to prove the following essentials:

1. DUTY TO TAKE CARE: One of the essential conditions of liability for negligence
is that the defendant owed a legal duty towards the plaintiff. The following case laws will
throw some light upon this essential element

In Grant v. Australian Knitting Mills Ltd.4 the plaintiff purchased two sets of woolen
underwear from a retailer and contacted a skin disease by wearing an underwear. The woolen
underwear contained an excess of sulphates which the manufacturers negligently failed to
remove while washing them. The manufacturers were held liable as they failed to perform
their duty to take care.

DUTY TO WHOM: Donoghue v. Stevenson5 carried the idea further and expanded the
scope of duty saying that the duty so raised extends to your neighbour. Explaining so as to
who is my neighbour LORD ATKIN said that the answer must be “the persons who are so
closely and directly affected by my act that I ought reasonably to have them in contemplation
as being so affected when I am directing my mind to the acts or omissions which are called in
question”.

DUTY MUST BE TOWARDS THE PLAINTIFF- It is not sufficient that the

defendant owed a duty to take care. It must also be established that the defendant owed a duty
of care towards the plaintiff.
· In Bourhill v. Young6 the plaintiff, a fishwife, alighted from a tram car. 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 the distance of 15 yards on the other side of the tram and died instantly.
The plaintiff could see neither the deceased nor the accident as the tram was standing
between her and the place of accident. She had simply heard about the collision and after the
dead body had been removed she went to the place and saw blood left on the road.
Consequently, she suffered a nervous shock and gave birth to a still-born child of 8 months.
She sued the representatives of the deceased motor-cyclist. It was held that the deceased had
no duty of care towards the plaintiff and hence she could not claim damages.

4. BREACH OF DUTY TO TAKE CARE: Yet another essential condition for the
liability in negligence is that the plaintiff must prove that the defendant committed a breach
of duty to take care or he failed to perform that duty. In Municipal Corporation of Delhi v.

4
1935 AC 85
5
1935 AC 85
6
1943 AC 92
Subhagwanti7 a clock-tower in the heart of the Chandni Chowk, Delhi collapsed causing the
death of a number of persons. The structure was 80 years old whereas its normal life was 40-
45 years. The Municipal Corporation of Dellhi having the control of the structure failed to
take care and was therefore, liable.

In Municipal Corporation of Delhi v. Sushila Devi8 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.

5. CONSEQUENT DAMAGE OR CONSEQUENTIAL HARM TO THE

PLAINTIFF: The last essential requisite for the tort of negligence is that the damage
caused to the plaintiff was the result of the breach of the duty. The harm may fall into
following classes:-
· physical harm, i.e. harm to body;
· harm to reputation;
· harm to property, i.e. land and buildings and rights and interests pertaining thereto, and his
goods;
· economic loss; and
· mental harm or nervous shock.
· In Achutrao Haribhau Khodwa v. State of Maharashtra9 a cotton mop was left inside the
body by the negligence of the doctor. The doctor was held liable.

These essentials have to be fulfilled for coming under the tort of negligence:

 he defendant owed them a duty of care

 the defendant breached that duty of care, and

 they suffered loss or damage as a direct consequence of the breach.

Res ipsa loquitur

In extraordinary cases, the facts may be so overwhelmingly in favour of the claimant that the
court decides the defendant should prove that they were not negligent. The legal term for this
is res ipsa loquitur (meaning the facts speak for themselves). It applies in circumstances
where the cause of the injury was under the control of the defendant and that the incident
would not have occurred if they had taken proper care. It is often applied in medical cases,
for example in Mahon v Osborne (1939), a surgeon had to prove it was not negligent to leave
a swab inside a patient.

Novus actus intervieniens

7
AIR 1966 SC 1750
8
AIR 19 99 SC 1929
9
(1996) 2 SCC 634
Other events, which are outside the control of the defendant, may intervene in the chain of
causality – adding some confusion to the outcome of a case. The good news is that there are
some simple rules to remember that deal with them.

At all times you should bear in mind that the defendant will only be liable if their actions are
the most probable cause of the loss or damage. They will not be liable if an intervening act
becomes the real cause. Examples of intervening acts which remove liability from the
defendant include:

 Actions of the claimant which are unreasonable, or outside what the defendant could
have foreseen in the circumstances.

 Actions of a third party which become the real cause of the loss or damage. The
defendant is only liable for damages up until the point when the third party
intervened.

 Unforeseeable natural events – natural events which the defendant could have
reasonably foreseen do not affect things.

IV. DEFENCES FOR NEGLIGENCE: In an action for negligence following

defences are available:-

1. CONTRIBUTORY NEGLIGENCE: It was the Common law rule that anyone

who by his own negligence contributed to the injury of which he complains cannot maintain
an action against another in respect of it because he will be considered in law to be author of
his wrong.

 Butterfield v. Forrester10 the defendant had put a pole across a public thoroughfare in Durby,
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.

2. ACT OF GOD OR VIS MAJOR: It is such a direct, violent, sudden and irresistible
act of nature as could not, by any amount of human foresight have been foreseen or if
foreseen, could not by any amount of human care and skill, have been resisted. Such as,
storm, extraordinary fall of rain, extraordinary high tide, earth quake etc.

· In Nichols v. Marsland11 the defendant had a series of artificial lakes on his land in the
construction or maintenance of which there had been no negligence. Owing to an exceptional

10
(1809) 11 East 60
11
(1875) LR 10 Ex.255
heavy rain, some of the reservoirs burst and carried away four country bridges. It was held
that, the defendant was not liable as the water escaped by the act of God.

3. INEVITABLE ACCIDENT: Inevitable accident also works as a defence of

negligence. An inevitable accident is that which could not possibly, be prevented by the
exercise of ordinary care, caution and skill. it means accident physically unavoidable.

 In Brown v. Kendal12 the plaintiff’s and 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 result of inevitable accident and the
defendant was not liable.

In Holmes v. Mather13 a pair of horses were being driven by the groom of the defendant on a
public highway. On account of barking of a dog, the horses started running very fast. The
groom made 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. Powell14 the plaintiff and the defendant, who were members of a shooting
party, went for 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.

Conclusion
Negligence as a tort has evolved from the English law and accepted by the 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 defences in a suit for negligence can be
used by the defendant to defend himself from a suit issued by the plaintiff.

12
(1859) 6 Cussing 292
13
(1875) LR 10 Ex.261, 267
14
(1891) 1 QB 86
Bibliography & Refrences

I have taken help from books and website which had helped me to study the cases properly
and in detail due which I could complete this project successfully.

Books:

 R.K. Bangia, Law of Torts , 24th Edition, 2017, Publisher: Allahabad Law Agency.
 Ratanlal and Dhirajlal, The Law of Torts, 24th Edition; Published by Wadhwa and
Company, Nagpur, India.

Website:

 Manupatra : http://www.manupatrafast.in/ipAccess.aspx
 Indian kanoon : https://indiankanoon.org/