UNIVERSITY INSTITUTE OF LEGAL STUDIES

TORTS PROJECT

“NEGLIGENCE”

Submitted To: Submitted By:

Bcom LLB (hons.)

201/17
 TABLE OF CONTENT

Acknowledgement 3
Table of Cases 4
Introduction 6
Negligence as ac Tort and a Crime 6
Essentials of negligence 7
Duty to take care of plaintiff 7
Breach of Duty 11
Damages 15
Professional Negligence 17
Contributory Negligence 18
Contributory Negligence as a Defence 19
Contributory Negligence of Children 20
Composite Negligence 21
Bibliography 22

ACKNOWLEDGEMENT
 The success and final outcome of this project required a lot of guidance and assistance from
many people and I am extremely privileged to have got this all along the completion of my
project. All that I have done is only due to such supervision and assistance and I would not forget
to thank them.

I respect and thank Ms. Tanmeet Kaur, for providing me an opportunity to do this and giving
me all support and guidance which made me complete the project duly. I am extremely thankful
to her for providing such a noise support and guidance, although she had busy schedule
managing the corporate affairs.

I am thankful and fortunate enough to get constant encouragement, support and guidance
from all teaching staffs of University Institute of Legal Studies which helped me in successfully
completing my project work. Also, I would like to extend our sincere esteems to all staff in
laboratory for their timely support.

Shivani Deyora
 TABLE OF CASES

B
Butterfield v. Forrester, 19

C
Chief Executive Officer, CESCO v. Prabhati Sahoo, 17

D
Davies v. Mann, 19, 20
Donoghue v. Stevenson, 7

G
Glasgow Corporation v. Muir, 9, 11
Glasgow Corporation v. Taylor, 14

J
Jacob Mathew v. State of Punjab and another, 7

K
Karnataka State Road Transport Corporation v. Krishnan, 21
Klaus Mittelbachert v. East India Hotels, 15
Krishnappa Naidu v. The Union of India, 10

L
Latimer v. A.E.C. Ltd., 12, 13

M
M. Mayi Gowda (Dr.) v. State of Karnataka, 9
Municipal Corporation of Delhi v. Sushila Devi, 10
Municipal Corporation of Delhi v. Subhagwanti, 10
Mysore State Road Transport Corporation v. Albert Dias, 13

R
R. Srinavasa v. K.M. Parasivamurthy, 21
Rural Transport Service v. Bezlum Bibi, 20

S
State of M.P. v. Asha Devi, 17
Sukhraji v. State Road Transport Corporation, 11

T
T.T. Thomas (Dr.) v. Elissar, 18

NEGLIGENCE
Negligence is a breach of duty caused by 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 or reasonable man would not do. Actionable negligence
consists in the neglect of the use of ordinary care or skill towards a person to whom the
defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has
suffered injury to his person or property.

Conduct that falls below the standards of behavior established by law for the protection of
others against unreasonable risk of harm. A person has acted negligently if he or she has
departed from the conduct expected of a reasonably prudent person acting under similar
circumstances. In order to establish negligence as a Cause of Action under the law of TORTS, a
plaintiff must prove that the defendant had a duty to the plaintiff, the defendant breached that
duty by failing to conform to the required standard of conduct, the defendant's negligent conduct
was the cause of the harm to the plaintiff, and the plaintiff was, in fact, harmed or damaged.1

The definition involves three constituents of negligence : (1) A legal duty to exercise on
part of the party complained of towards the party complaining the former’s conduct within the
scope of duty; (2) breach of the said duty; and (3) consequential damages .

Negligence- as a tort and a Crime

The term negligence is used for the purpose of fastening the defendant with liability under the
Civil Law and, at times, under the Criminal Law generally speaking, it the amount of damage
incurred which is determinative of the extent of the liability in tort; but in criminal it is not the
amount of damages but the amount an degree of the negligence that is determinative of the
liability. Distinguishing between negligence as a tort and as a crime, the Apex Court

in JACOB MATHEW v. STATE OF PUNJAB,2 observed:

To fasten liability in criminal Law, the degree of negligence has to be higher than that of
negligence enough to fasten liability for damages in Civil Law. The essential agreement of mens
1
1 Negligence, http://legal-dictionary.thefreedictionary.com/negligence, last visited- September 16
22
Mathew v. State of Punjab A.I.R. 2005 S.C. 3180
rea cannot be excluded from consideration when the charge in criminal court consists of criminal
negligence.

Essentials of negligence

In an action of negligence, the plaintiff has to prove the following essentials:

1. That the defendant owed a duty of care to the plaintiff;

2. The defendant made a breach of that duty;
3. The plaintiff suffered damage as consequences thereof.

1. DUTY TO TAKE CARE OF PLAINTIFF

It means a legal duty rather than a mere moral, religious or social duty. The plaintiff has to
establish that the defendant owed to him specific legal duty to take care, of which he has made a
breach. There is no general rule of law defining such duty. In order to establish that duty of care
arises in a particular situation we have to see whether there is a sufficient relationship of
proximity or neighbourhood, that in the reasonable contemplation of the wrong doer,
carelessness on his part may likely to cause damage to plaintiff and that the breach was the direct
and proximate cause of the damage complained of.

In DONOGHUE v. STEVENSON,3 A purchased a bottle of ginger beer from a retailer for

the appellant, a lady friend. Some of the contents were poured in a tumbler and she consumed the
same. When the remaining contents of the bottle were poured into her tumbler, the decomposed
body of snail floated with her ginger beer. The appellant alleged that she seriously suffered in her
health in consequence of having drunk a part of contaminated contents. The bottle was of dark
opaque glass and closed with a metal cap, so that the contents could not be ascertained by
inspection. She brought an action against the manufacturer for damage.
One of the defences pleaded by the defendants was that he did not owe any duty of care
towards the plaintiff. The House of Lords held that the manufacturer owed her a duty to take care
that the bottle did not contain any noxious matter, and that he would be liable on the breach of

3
Donoghue v. Stevenson (1932) A.C. 562.
duty. According to Lord Atkin: “A manufacturer of products, which he sells in such a form as to
show that he intends them to reach the ultimate consumer in the form in which they left him with
no reasonable possibility of intermediate examination and with the knowledge that the absence
of reasonable care in preparation or putting up of the products will result in an injury to the
consumer’s life or property, owes a duty to the customer to take that reasonable care.”

Another defence pleaded by the defendant was that the plaintiff was a stranger to the contract
and her action was, therefore, not maintainable. Earlier a fallacy, commonly known as ‘Privity of
Contract Fallacy’, had crept into the law, the effect of which was understood to be that if A
undertook some contractual obligation towards B and the breach of such obligation by A resulted
in damage to C, then C could not sue A even in tort because there was no contractual relation
between A and C. This fallacy was done away with by DONOGHUE v. STEVENSON by
allowing the consumer of drink an action in tort against manufacturer, between whom there was
no contract.

Duty depends on reasonable foreseeability of injury

Whether defendant owes a duty to the plaintiff or not, depends on reasonable foreseeability
of the injury to the plaintiff. If at the time of the act or omission, the defendant could reasonably
foresee injury to the plaintiff, he owes a duty to prevent that injury and failure to do that makes
him liable. Duty to take care is the duty to avoid doing or omitting to do anything, the doing or
omitting to do which may have as its reasonable and probable consequences to others, and the
duty is owed to those to whom injury may reasonably and probably be anticipated if the duty is
not observed. To decide culpability, we have to determine what a reasonable man would have
foreseen and thus form an idea of how he would have behaved under the circumstances.
Explaining the standard of foresight of the reasonable man, Lord Macmillan observed, in
GLASGOW CORPORATION v. MUIR:4
The standard of foresight of the reasonable man is, in one sense, an impersonal test. It
eliminates the personal equation and is independent of the idiosyncrasies of the particular person
whose conduct is in question. Some persons are by nature unduly timorous and imagine every

4
Glasgow Corporation v. Muir (1943) A.C. 448, at 457.
path beset with lions. Others, of more robust temperament, fail to foresee or nonchalantly
disregard even the most obvious dangers. The reasonable man is presumed to be free both from
over apprehension and from over confidence, but there is a sense in which the standard of care
the reasonable man involves in its application a subjective element. It is still left to the judge to
decide what, in the circumstances of the particular case, the reasonable man would have
contemplation and what, accordingly, the party sought to be made liable ought to have foreseen.
Here, there is room for diversity of views.... what to one judge may seem far-fetched may seem
to another both natural and probable.

In Dr. M. MAYI GOWDA v. STATE OF KARNATAKA,5 the complainant and 5 children

of his family took an elephant joy-ride on 7.10.1992 at about 8 p.m. in Mysore Dasara Exhibition
ground after having purchased tickets for the same. After taking a number of rounds while the
complainants and other persons were in the process of getting down the cradle, the elephant
became panicky in that rush hour and ran forward. The complainant was thrown on the ground as
a result of which he received serious injuries resulting in total loss of eyesight of both the eyes.
He was a medical practitioner. He claimed compensation of Rs.999,000.
It was found that it was a female elephant having participated in such rides and festivals for
13 years. It had acted in film shooting, various religious functions and honouring of V.I.P.s.
It was held that there was no negligence on the part of the opposite parties who had
organised the joy-ride. The reason of the accident was unusual and unfortunate behaviour of the
elephant, and, therefore, the complainant was dismissed.

In MUNICIPAL CORPORATION OF DELHI v. SUBHAGWANTI,6 a clock tower situated

in the heart of the city, i.e., Chandni Chownk, 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 Delhi, which was having control of the structure had obviously failed to get the
periodical check up and the necessary repairs done. The defendant corporation was, therefore,
held liable to pay compensation for the consequences of the collapse of the structure.

5
M. Mayi Gowda v. State of Karnataka II (1996) C.P.J. 307. (Karnataka)
6
Municipal Corporation v. Subhagwanti A.I.R. 1966 S.C. 1750
 In MUNICIPAL CORPORATION OF DELHI v. SUSHILA DEVI,7 a person passing by the
road died because of fall of the branch of a tree standing on the road, on his head. According to
an expert witness, a botany professor, the tree had dried up and had no bark, therefore, the same
was dead, dried and dangerous.

The earlier decision of Supreme Court in MUNICIPAL CORPORATION OF DELHI v.

SUBHAGWANTI was followed and it was held that the Horticulture Department of the
Corporation should have carried out periodical inspection of the tree and should have taken
safety precautions to see that the road was safe for the users, and such adjoining trees were dried
and dead and with projecting branches which could prove to be dangerous to the passers-by,
were removed.

No liability when injury is not foreseeable

In KRISHNAPPA NAIDU v. THE UNION OF INDIA,8 the plaintiff’s taxi, passing through
a level crossing, was hit by the defendant railways train. It was found that the taxi driver enter
into level crossing in spite of warnings given by the gateman. The taxi driver was, therefore, a
trespasser on the railway on the railway track, whose presence could not be anticipated by the
railway driver. The accident could not be averted in spite of the best efforts of the railway
administration. Since there was no negligence on the part of the railway administration or its
staff, the defendants were held not liable.

In GLASGOW CORPORATION v. MUIR,9 the, manageress of the defendant Corporation

tea rooms permitted a picnic party of 30 to 40 persons, who had been caught in a rain, to have
their food in the tea room. Two members of picnic party were carrying a big urn containing six
to nine gallons of tea to the tea room through a passage where some children were buying sweets
and ice-creams. Suddenly, one of the person lost the grip of the handle of the urn and six children
including the plaintiff, Eleanor Muir, were injured. It was held that the manageress could not
anticipate that such an event would happen as a consequence of tea urn being carried through the

7
Municipal Corporation v. Sushila Devi A.I.R. 1999 S.C. 1929
8
Krishnappa Naidu v. The Union of India (1975) II M.L.J 353.
9
Glasgow Corporation v. Muir (1943) A.C. 488; (1943) 2 All E.R. 44.
passage and, therefore, she no duty to take precautions against the occurrence of such an event.
Hence, neither the manageress nor the Corporation could be held liable for the injury.

Reasonable foreseeability does not mean remote possibility

To establish negligence it is not enough to prove that the injury was foreseeable, but a
reasonable likelihood of the injury has to show because “foreseeability does not include any idea
of likelihood at all”. The duty is to guard against probabilities rather than bare possibilities. In
SUKHRAJI v. STATE ROAD TRANSPORT CORPORATION, CALCUTTA, 10 the plaintiff’s
son, a boy of 14 years, got down from a moving tramcar and while he tried to cross the road, he
was run over by an omnibus which was about to overtake the said tramcar. It was found that the
boy had got down without a stop from the tramcar and on seeing the boy in front of his bus, the
driver of the omnibus had applied the brakes with all his might but the boy could not be saved. It
was held that the driver of the bus could not anticipate that certain passengers would jump off a
moving tramcar where there was no stop. He would take it for granted that no one was getting
down from it. If somebody suddenly came in front of a fast moving vehicle like omnibus without
any warning to the driver, the driver cannot be made liable for negligence. It was held to be
negligence on the part of the deceased himself.

(2). BREACH OF DUTY

Breach of duty means non observance of due care which required in a particular situation.
What is the standard for care required? The standard is that of a reasonable man or an ordinarily
prudent man. If the defendant has acted like a reasonable prudent man, there is no negligence.
The standard is objective and it means what a judge considered should have been the standard of
reasonable man.

Standard of care required

10
Sukhraji v. State Road Transport Corporation, Calcutta A.I.R. 1966 Cal. 620.
 The law requires taking of two points into consideration to determine the standard of care
required: (a) the importance of the object to be attained, (b) the magnitude of the risk, and (c) the
amount of consideration for which services, etc. are offered.

(a) The importance of the object to be attained

The law does not require greatest possible care but the care required is that of a reasonable
man under certain circumstances the law permits taking chance of some measure if risks do that
in public interest various kinds of activities should go on. “As has been pointed out, if a; the
trains of this country were restricted to a speed of five miles an hour, there would be fewer
accidents, but our national life would intolerably slowed down. The purpose to be served, if
sufficiently important, justifies the assumption of the abnormal risk.” A balance has therefore, to
be drawn between the importance and usefulness of an act and the risk created thereby.
The certain speed may not be negligent for a fire brigade vehicle but same speed may be a
negligent act for another vehicle.

In LATIMER v. A.E.C. Ltd.,11 due to an exceptionally heavy rainstorm, the respondent’s

factory was flooded with water. Some oily substances got mixed up with water. After the water
drained away, an oily film remained on the surface of the floor and the floor surface became
slippery. Respondent spread all the available sawdust on the floor to get rid of the oily film but
some areas remained uncovered due to lack of further supplies of sawdust. The appellant, who
was the employee in the respondent’s factory, slipped on one such oily patch and was injured. He
sued the respondents for negligence and contended that the respondents should have closed down
the factory as a precaution until the danger has disappeared. The House of Lords held that the
risk created by slippery floor was not so great as to justify the precaution of closing down the
factory with over four thousand workmen. The respondents had acted like a prudent man and,
therefore, they were not liable for negligence.

(b) The magnitude of the risk

11
Latimer v. A.E.C. Ltd. (1953) A.C. 643
 The degree of care required varies according to every situation. What may be a careful act
in one situation may be a negligent act in another situation. The law does not demand same
amount of care under every situation. The kind of risk involved determines the precautions
which the defendant is expected to take. The position in this regard was explained by
Venkataramia, J. In MYSORE STATE ROAD TRANSPORT CORPORATION v. ALBERT
DIAS as under12 :
Negligence is failure in the duty to take due care. The expression ‘due’ connotes that degree
of care which a reasonable man ought to take in a given set of circumstances. What may amount
to a ‘negligent’ act in a particular place and occasion may not be a negligent act in another place
or occasion. In deciding what care was called for by a particular situation, one useful test is to
enquire how obvious the risk must have been to an ordinary prudent man. The question in each
case, therefore, depends upon its own facts.

The degree of care depends upon the magnitude of risk which could have been foreseen by a
reasonable and a prudent man. Thus, the driver of vehicle should take greater care when it is
drizzling. A person carrying a loaded gun is expected to take more precaution than a person
carrying an ordinary stick. Greater care is required in transporting inflammable and explosive
material than in transporting ordinary goods. Similarly, while transporting petrol greater care is
needed than in case of milk or water. Thus, “There is no absolute standard, but it maybe said
generally that the degree of care required varies directly with the risk involved. Those engaged in
operations inherently dangerous must take precautions which are not required of persons
engaged in the ordinary routine of daily life.”

GLASGOW CORPORATION v. TAYLOR,13 is another illustration where there was lack of

due care according to the circumstances of the case. In that case poisonous berries were grown in
a public garden under the control of the Corporation. The berries looked like cherries and thus
had tempting appearance for the children. A child, aged seven, ate those berries and died. It was
found that the shrub bearing the berries was neither properly fenced nor a notice regarding the

12
Mysore Road Transport Corporation v. Albert Dias A.I.R. 1973 Mysore 240, at 242
13
Glasgow corporation v. Taylor (1922) 1 A.C. 44
deadly character of the berries was displayed. It was, therefore, held that the defendants were
liable for negligence. According to Lord Summer14 :
A measure of care appropriate to the liability or disability of those who are immature or
feeble in mind or body is due from others who know of, or ought to anticipate, the presence of
such person within the scope and hazard of their own operation.

(c) The amount of consideration for which services, etc. are offered
The degree of care depends also on the kind of services offered by the defendant and the
consideration charged therefore from the plaintiff. For instance, one who purchases a glass of
water from a trolley in a street for 10 or 25 paise is entitled to safe water which should not
ordinarily infect him. But if a person purchases a mineral water bottle for Rs.10/- or 15/-, then he
can justifiably demand higher degree of purity. The manufacture of water bottle cannot be heard
to say as so long he had made it equivalent to trolley man’s water, he has done his duty.
Similarly a patient admitted to a luxury hospital say for Rs.3000 or Rs.5000 a day would be
justified in demanding higher and sophisticated degree of care, comfort, convenience and
recovery than merely sterilization from infection as could be expected in a general ward of a
hospital.
In same way, a person sipping a cup of tea at road side dhaba for a rupee or fifty paisa may
accept it as his luck if the chair offered to him collapses when he sits on it, but a person paying
Rs.50/- for a cup of tea at a five star hotel is entitled to get a safer chair and a better quality of
tea.

In KLAUS MITTELBACHERT v. EAST INDIA HOTELS Ltd,15 the question of liability of

a five star hotel arose to a visitor, who got seriously injured when he took a dive in a swimming
pool. It was observed that was no difference between a five hotel owner and insurer so far as the
safety of the guest is concerned.
It was observed that a five star hotel charging high and fancy price from its guests owes a
high degree of care as regards quality and safety of its structure of its service, which is hazardous
to guests, would attract strict liability to compensate for consequences flowing from the breach
of duty to take care.
14
Glasgow corp. v. Taylor (1922) 1 A.C. 44, at 67
15
Klaus Mittelbachert v. East India Hotels A.I.R. 1997 Delhi 201
 For the damage caused to guests of such a hotel, exemplary damages become payable.
In this case, the plaintiff got paralysed while he dived in the swimming pool and after suffering
considerable pain and suffering and spending a lot on medicines, special diet and rehabilitation,
he died 13 years after accident. He was awarded damages amounting Rs.50 lacks. The principles
laid down in this case still stand although the Division Bench reversed the decision in appeal on
the ground that the cause of action in the pending case died with the death of the claimant.

(3) DAMAGES
It is also necessary that defendant’s breach of duty must cause damage to the plaintiff. The
plaintiff also has to show that the damage thus caused is not too remote a consequence of the
defendant’s negligence.
In suits in which damages claimed, the onus, it is held, on the plaintiff to prove all items of
the damage. In such a case, any fact that enables the court to determine the amount of damages,
which ought to be awarded, is held to be relevant.
The duty to access the damages is, however, entirely upon the court. In so doing, the court
resorts to the rule which regulate the practice of the courts. The Court, it is held, has to decide
and determine every question which would ultimately enable the parties to obtain the final
judgement in case in question, such as proper measure of damages to be applied, remoteness of
damages and the amount which a plaintiff is actually entitled to as damages

Proof of Negligence: Res Ipsa Loquitur

. As a general rule, it is for the plaintiff to prove that the defendant was negligent. The initial
burden of making out at least a prima facie case of negligence as against the defendant lies
heavily on the plaintiff, but once this onus is discharged, it will be for the defendant to prove that
the incident was the result of inevitable accident or contributory negligence on the part of the
plaintiff. If the plaintiff is not able to prove negligence on the part of the defendant, the
defendant cannot be made liable.
Though, as a general rule, the plaintiff has to discharge the burden of proving negligence on
the art of the defendant, there are, however, certain cases when the plaintiff may not prove that
and inference of negligence is drawn from the fact. There is a presumption of negligence
accordingly to the maxim ‘res ipsa loquitur’ which means ‘a thing speaks for itself’. When the
accidents explain only one thing and that is that the accident could not ordinarily occur unless the
defendant had been negligent, the law raise a presumption of negligence on the part of the
defendant. In such a case, it is sufficient for the plaintiff to prove accident and nothing more.
The defendant can, however, avoid his liability by disapproving negligence on his part. For the
maxim res ipsa Loquitur to apply, it also necessary that the event causing the accident must have
been in the control of the defendant. Thus, when the circumstances surrounding the thing which
cause the damage are at the material time exclusively under the control or management of the
defendant or his and the happening is such as does not occur in the ordinary course of things
without negligence on defendant’s part, the maxim applies and the burden of proof is shifted
from the plaintiff to the defendant. Instead of the plaintiff proving negligence, the defendant is
required to disprove it.

It is to be noted that as a rule, mere proof that an accident has occurred, the cause of which is
unknown, is not evidence of negligence, but the peculiar circumstances constituting the accident
in a particular case, may themselves proclaim, in clear and unambiguous voice, the negligence of
somebody as the cause of accident. It is to such cases that the maxim res ipsa loquitur may be
said to apply.

The maxim is not a rule of law. It is a rule of evidence benefiting the plaintiff by not requiring
him to prove negligence. When the accident is more consistent with the negligence of the
defendant than with any other cause and the facts are not known to the plaintiff but are or ought
to be known to the defendant, the doctrine applies.
In CHIEF EXCUTIVE OFFICER, CESCO v. PABHATI SAHOO,16 a case of death by
electrocution, the deceased person came in contact with the live conductor wire hanging at a
lower height and succumbed due to electrocution. There was nothing to show that supply of
electricity was totally cut off. It was also revealed that electricity was supplied to one of the
consumer.
In view of the character of incident and circumstances attending, it was held that it could
reasonably be believed that in the absence of negligence, incident would not have occurred. The
doctrine of res ipsa loquitur was held applicable in the case. Holding the legal representatives of

16
Chief Officer Executive, CESCO v. Prabhati Sahoo A.I.R. 2012 (NOC) 83 (Ori).
deceased entitled to compensation, the Orissa High Court said that the material on record showed
that the incident took place due to rashness and negligence of the authorities.

In STATE OF M.P. v. ASHA DEVI,17 a police vehicle carrying about 30-32 constables
while passing the culvert dashed against the culvert resulting in the death of 5 constables. The
vehicle at that time was being driven at a speed of 30 km per hour. That was considered to be
excessive and a presumption of negligence was raised because when on a road zigzag and
narrow culverts are there, where in only one vehicle can pass, the speed of 30 km is excessive as
the vehicle cannot be controlled in such a situation.
Another factor leading to the raising of presumption of negligence was the fact that 4-5
persons were sitting by the side of the driver leaving no space for the change of the gears to stop
the vehicle.

PROFESIONAL NEGLIGENCE

Professional negligence is branch of the duty of care between professionals and their clients.
The duty of care is a common law arrangement where the client expects a level of
professionalism and standards commonly held by those in the profession.  The most common
term for medical professional negligence is medical malpractice.  For this instance, the patient
expects the doctor and his subordinates to adhere to standards that would prevent undue harm
and distress to patients under his or her care.  Negligence on the part of the doctor while
performing his duties as a professional is malpractice, which breaches the duty of care that the
patient has put in the doctor and will involve legal penalties.

Duty of care is a broad legal definition that protects individuals from others that engage in
activities that could potentially harm others if proper precautions are not taken.  This ranges from
operating a moving vehicle to performing surgery.  This also covers situations where individuals
may suffer economic or emotional damage due to poor advice or conduct. A manufacturer has a
duty of care to the consumer as the consumer will assume that product he or she is buying is safe
and adheres to standards set by the government and common practices.  The standard for this
17
State of M.P. v. Asha Devi A.I.R. 1989 M.P. 93
was set in the case of Donoghue v Stevenson where a ginger beer manufacturer allowed a snail
into Stevenson’s bottle.  British courts ruled that Stevenson was owed a duty of care by
Donoghue to ensure the safety of his manufacturing process to his customers.18
In T.T.THOMAS v. ELISSAR,19 it has been held by the Kerala High Court that failure to
perform an emergency operation to save the life of a patient amounts to a doctor’s negligence. In
this case the plaintiff’s husband was admitted as an in-patient in a hospital in 11.3.1974 for
complaint of severe abdominal pain. It was diagnosed as a case of acute appendicitis, requiring
immediate operation to save the life of the patient. The doctor failed to perform the operation and
the patient died on 13.3.1974. It was held that the doctor was negligent in not performing the
emergency operation, and he was liable for the death of the patient. The doctor’s plea that the
patient had not consented to the operation was rejected, in this regard. It was held that the burden
of proof was on the doctor to show that the patient had refused to undergo the operation and in
this case, the doctor had failed to convincingly prove the same

CONTRIBUTORY NEGLIGENCE

When the plaintiff by his own want of care contributes to the damage caused by the
negligence or wrongful conduct of the defendant, he is considered to be guilty of contributory
negligence.
An accident would be said to be result of contributory negligence if “the proximate cause of
the accident is the act or omission amounting to want of ordinary care or in defiance of duty or
obligation on the part of the complaining party has conjoined with the other party’s negligence. It
thus, means a man’s carelessness in looking after his own safety as opposed to the carelessness
towards another.

Contributory negligence as a defence

(1) Complete Defence: If the defendant has been negligent but the plaintiff could have , by the
use of ordinary care and skill, avoided the harmful consequences then he cannot recover the
damages caused to him. However, contributory negligence is no defence where the plaintiff was
18
Professional Negligence, http://negligence.laws.com/professional-negligence, last visited on September 17
19
T.T. Thomas v. Elissar A.I.R. 1987 Kerala 42: ACJ 192.
not bound to take such care as the defendant contents but has a right to assume that the defendant
had done all things rightly and careful.
In BUTTERFIELD v. FORRESTER20, the defendant wrongfully obstructed a highway by
putting pole across it. The plaintiff who was riding violently in the twilight on the road collided
against the pole and was thrown his horse and injured. If the plaintiff had been reasonably
careful, he could have observed the obstruction from distance of 100 yards and thus avoided that
accident. It was held that the plaintiff had no cause of action as he himself could have avoided
the accident by exercising due care.
This rule worked a great hardship particularly for the plaintiff because for a slight
negligence on his part, he may lose his action against defendant whose negligence may have
been the main course of damage to the plaintiff. The court modified the law relating to
contributory negligence by introducing the so-called rule of ‘last opportunity’.

(2) The Last Opportunity Rule: The next rule evolved was of later or last opportunity.
According to this rule, when two person are negligent, that one of them, who had the latter
opportunity of avoiding the accident by taking ordinary care should be liable for the loss.
The case of DAVIES v. MANN,21explains the rule. In this case, the plaintiff fettered the
forefeet of his donkey and left it on a narrow highway. The defendant was driving his wagon
driven by horses too fast that it negligently ran over and killed the donkey. In spite of his own
negligence, the plaintiff was held entitled to recover because the defendant had the ‘last
opportunity’ to avoid the accident.
(3) Causation Test: Last opportunity rule was also unsatisfactory so the House of Lords evolved
the causation test. The causation test simply lay down that in every case, we are now going to see
whose negligence has been the effective cause of the accident which has resulted in the damages
claimed.

(4) Apportionment Rule: In England the doctrine of contributory negligence underwent

massive transformation with the passing of Law Reform (contributory negligence) Act, 1945.
Now the principle is that a claim in respect of damages caused shall not be defeated by reason of
the fault of the person suffering the damages but instead the damages recoverable thereof, shall
20
Butterfield v. Forrester (1809) 11 East 60
21
Davies v. Mann (1882) 10 M. and W. 546
be reduced to such extent as the court thinks just and equitable having regard to the claimant
share in the responsibility for the damage.
In RURAL TRANSPORT SERVICE v. BEZLUM BIBI,22 the conductor of an overloaded
bus invited passengers to travel on the roof of the bus. The driver swerved the bus to right to
overtake a cart. As the driver turned on the kutcha part of the road, Taher Sheikh, who was
travelling on roof, was hit by the branch of a tree. He fell down and got serious injuries and later
he died due to that. In an action by the mother of the deceased to claim compensation, it was held
by the Calcutta High Court that there was negligence on the part of conductor and the driver of
the bus and there was also contributory negligence on the part of the deceased because he took
the risk of travelling on the roof of the bus. The compensation payable by the defendants was
reduced by 50% and they were asked to pay Rs.8000 instead of Rs.16000.

Contributory Negligence of Children

What amounts to contributory negligence in case of a mature person may not be so in the
case of a child because a child cannot be expected to careful as a grown-up person. Age of
person, therefore, has to be taken into account to ascertain whether a person is guilty of
contributory negligence or not. In R. SRINIVASA v. K.M. PARASIVAMURTHY,23 a child of
about 6 years was hit by a lorry while standing just near the footpath. It was held that the child of
that age does not have the road sense or experience of his or her elders and, therefore, the
plaintiff, in the case, cannot be blamed for contributory negligence.

COMPOSITE NEGLIGENCE

When the negligence of two or more persons results in the same damage, there is said to be
composite negligence, and the persons responsible for causing such damage are known as
composite tortfeasors. The liability of composite tortfeasors is joint and several.

22
Rural Transport Service v. Bezlum Bibi A.I.R. 1980 Cal. 165
23
R. Srinivasa v. K.M. Parasivamurthy A.I.R. 1976 Kant. 92
 In KARNATAKA STATE ROAD TRANSPORT CORPORATION v. KRISHNAN, 24 two
passenger buses brushed each other in such a way that the left hand of two passengers travelling
in one of these buses were cut off below the shoulder joint. It was held that “the present cases are
clearly cases of composite negligence. Hence, both the drivers are jointly and severally liable to
pay the compensation.

24
Karnataka State Road Transport Corporation v. Krishnan A.I.R. 1981 Kant. 11
 BIBLIOGRAPHY

BOOKS

Bangia, R.K., Allahabad Law Agency, Twenty Third Edition, 2013

WEBSITES

http://legal-dictionary.thefreedictionary.com/negligence
http://negligence.laws.com/professional-negligence