Tort Law Class Outline: NEGLIGENCE

(SOURCES: WINFIELD ET AL., RATANLAL & DHIRAJLAL)

Note: Note that these are mere outlines, and you need to add and supplement this bare outline
with class notes, precise citations, definitional elements in detail, case law/ judgements (facts
and ratio) etc.

Three Core Elements of Negligence:

1. Duty of Care owed by the defendant to the plaintiff/ claimant
2. Breach of the Duty of Care by the defendant
3. Damage caused to the claimant due to the breach of the Duty of Care on part of the
defendant.
- The three elements are interrelated.
- For a tort of negligence to occur, all three elements need to be satisfied
- Each element is described in detail below:

NEGLIGENCE ELEMENT 1: DUTY OF CARE

 Legal Duty: For the tort of negligence, the duty of care needs to be a legal duty, and
not merely a moral/ social/ religious duty
 The duty of care needs to be towards the claimant in particular
If a person towards who the defendant does not own any duty of care gets injured,
then the defendant is not liable for the tort of negligence
Case: Palsgraf v. Long Island Railroad (1928)
Facts: A man holding a package was trying to board a train. A railway guard gave
him a push from behind intending to assist him in boarding the train. The package fell
on the railway track. The package came under the wheels of the train and there was an
explosion as the package contained fire crackers. Due to the explosion, some scales
that were kept a few feet away fell and injured a woman (plaintiff)
Held: The defendant (the railway company employing the guard- vicarious liability)
was not liable to compensate the plaintiff as the defendant did not owe any duty of
care towards her.
 There are many duty of care categories, both old and new, such as the duty of care
owed by a driver to other users of road, the duty owed by the manufacturer of a
 product to its ultimate consumers, duty owed by those possessing special skills (such
as the duty of care owed by underwriters to their customers)
 How to determine duty of care? The courts have laid down/ stated tests/ standards in a
number of judgments. Two such tests are:
1. Neighbour Principle (as stated in Donoghue v. Stevenson, 1932)
2. Caparo Test (laid down in Caparo Industries Plc v. Dickman, 1990)

Test 1: Neighbour Principle

- This principle was clearly states in the case of Donoghue v. Stevenson (1932)- the
dead snail in ginger beer bottle case
- According to this principle one has a duty of care towards her/ his neighbor. In law,
neighbor is someone who is “closely and directly affected” by one’s act/ omission
(See Winfield et al 5-015)
- The neighbor principle was further elaborated in the case of Anns v. Merton LBC
(1978). In this case neighbor principle was stated as a two stage test:
i) whether there is a proximity/ neighborhood between the plaintiff and the defendant
ii) whether there are any factors that would reduce or limit or cancel that duty

Test 2: Caparo Test

- This test was laid down in the case of Caparo Industries Plc v. Dickman (1990)
- This is the most frequently used test to determine whether the defendant owed a duty
of care towards the claimant
- It is a three step test: The three elements of the test are:
i) Foreseeability:
- It should be reasonably foreseeable that the claimant might be injured by the
defendant’s act.
- The question of foreseeability of damage is an objective question of fact
- No liability if the injury is not foreseeable
- Reasonable foreseeability does not mean remote possibility
Case: Blyth v. Birmingham Water Works Co (1856)
Fact: An exceptionally severe frost in the year 1855 damaged a plug installed by the
defendants and the consequent flooding of the claimant’s premises.
Held: As the damage was caused due to an exceptionally severe frost, it was not
foreseeable. The plug was working well for 25 years.
ii) Proximity:
- There should be sufficient proximity between the two parties
- Proximity is not just about physical nearness, but, also the relation between the
parties- “close and direct relations” between the two parties denote proximity
- Proximity is present when the defendant’s “act directly affects” the claimant/
plaintiff
- Proximity is determined on case by case basis
E.g. Donoghue v. Stevenson (1932): there was a sufficient proximity between the
manufacturer of ginger beer and the ultimate consumer

E.g. Hill v. CC West Yorkshire (1989): It was held that there was no special duty of
care between the police (defendant) and the claimant (estate of the murdered girl)
when the murder was committed by a man known as the “Yorkshire Ripper.” It was
held that the murdered woman was a member of the society at large, and thousands of
women faced the same risk as the deceased. Holding a duty of care in such cases
would put undue pressure on policemen in discharge of their duty, and would lead to a
multiplicity of claims. The courts would be inundated with cases against the police
(which outcome would be against public policy)
But, if the murdered was in the police custody, and had escaped due to the negligence
of police and then committed murder, then perhaps there would have been a duty of
care between the police and the claimant.
iii) Fair, just and reasonable:
- For the Caparo test to be satisfied, the court needs to perceive the imposition of a
duty of care on the defendant to be fair, just and reasonable.
- If the first two stages of the Caparo test are fulfilled, but, the court deems the
imposition of duty of care on the defendant to be unfair, unjust or unreasonable-
especially if imposition of such a duty would lead to undermining of some important
public interest, then the court would rule out the existence of a duty of care upon the
defendant.
E.g. Marc Rich & Co AG v. Bishop Rock Marine Co. Ltd. (1996)
Facts: A ship was on its way from South America to Italy. On the way, the ship
developed a crack. The master of the ship got it checked by a surveyor (employed by
NKK, a marine classification society). The surveyor opined that with temporary
 welding, the ship could cover the journey to its destination. But, during the journey,
the ship sank along with the cargo
Held: Even though there was foreseeability and proximity, it would not be fair to
assign duty of care to the defendant (NKK, the marine classification society). The
court held that assigning a duty of care in this instance would lead to undesirable
consequences like:
- hike in insurance rates for marine transport, which in turn would lead to an increase
in prices of consumer goods as most of the goods are transported through marine
routes
- the classification societies would be likely to refuse surveying high risk vessels-
thus, affecting their important welfare function of ensuring safety at sea
Thus, the courts can be concerned not just with resolving a dispute between the two
parties to a case, but, also the impact of the decision on the society at large

- These were the three elements of the Caparo test. But, as law is a dynamic (ever
evolving field) the Caparo test is supplemented with additional elements/ rules as
needed. For instance, in cases of psychiatric trauma caused to a claimant due to
someone else getting harmed, along with the three elements of the Caparo test
mentioned above, a fourth element is required i.e. there should be “a close
relationship/ bond of love and affection” between the claimant and the person being
injured. E.g. mother and child

 Duty of care can arise in an infinite number of cases. Some of the common situations
where the question of existence of duty of care generally arises are:
1) Psychiatric Injury
2) Pure Economic Loss
3) Assumption of Responsibility
4) Public Authorities and Negligence
5) Lawyers and Negligence
6) Omission
These six heads are elaborated as below:

1) Psychiatric Injury/ mental injury:

- Earlier, the term “nervous shock” was used
- Psychiatric Injury is treated differently from physical injury because:
i) Psychiatric injury is more difficult to determine than physical injury
ii) while physical injury is confined to the person involved in an event/ accident, but,
psychiatric injury can also be experienced by others like relatives, friends etc. of the
person being injured or being perceived as injured
- For a successful claim of tort of negligence, the claimant need to suffer from a
recognizable psychiatric illness
- There can be two kinds of claimants alleging psychiatric harm: Primary and
Secondary victim
1) Primary Victim:
- The claimant is a primary victim of the defendant’s negligence
- The claimant is physically threatened due to the defendant’s negligent act,
and as a result experiences mental injury
- The claimant can suffer from psychiatric injury both due to apprehension of
damage to one’s self as well as one’s property (Attia v. British Gas Plc
(1988) – the claimant could recover damage for psychiatric harm suffered by
the claimant as a result of witnessing the incident of her house being set on
fire by the negligence of the defendant)
- E.g. Dulieu v. White (1901)
Facts: The defendant negligently drove his horse carriage into the bar of the
restaurant where the claimant, who was pregnant at the time, was serving.
Witnessing this act of the defendant, the claimant experienced psychiatric
shock and miscarried her child.
Held: The defendant was liable to pay damages to the claimant
Note: It is not required that the claimant should be in actual danger, the only
requirement is that the claimant should reasonably believe that she/ he is in
danger.

-E.g. Page v. Smith (1996)

Facts: Due to the defendant’s negligence, there was a collision in which the
claimant was involved. The claimant’s property was damaged, but, the
claimant himself did not suffer any bodily harm. But, after the accident, the
claimant began suffering from Chronic Fatigue Syndrome, that was irregular
for 25 years and turned regular after that.
Held: the defendant was liable to pay damages to the claimant. It was held
that psychiatric injury was kind of a personal injury, and a claimant could
recover damages on the basis of “thin skull” principle (which means that the
defendant has to meet the plaintiff as he/ she is)

2) Secondary Victim:
- The claimant is a secondary victim i.e., the claimant is a witness to danger to
others

Case: Hambrook v. Stokes Bros (1925)

Facts: A mother had recently parted with her kids outside a narrow lane. After
parting with her kids, she saw an unmanned lorry that was left unattended by
the defendant’s servant violently running down the lane in which her children
were walking. She feared for their safety. Soon after the lorry met into an
accident, and someone told her that a child (matching the description of one of
her children) had been injured. Hearing this, she experiences shock and dies.
Held: The defendant was liable to pay damages to the deceased’s husband.
This case showed that a claimant need not be present at the scene of an
incident for him/ her to experience psychiatric injury. Even the news of death/
injury of one’s loved one can result in a successful claim of psychiatric injury
under the tort of negligence.

Case: Bourhill v. Young (1943)

Facts: The claimant, who was pregnant at the time was traveling in a tramcar
when she saw a speeding motorcyclist. Shortly after that the motorcyclist got
into an accident and died on the spot. The claimant did not see the accident.
She got off the tramcar and happened to reach the spot where the accident had
happened. By the time she reached there, the motorcyclist’s body was
removed from the spot. But, there was blood on the spot. Seeing that she
underwent shock and miscarried her baby.
Held: She could not recover from the estate of the dead motorcyclist’s estate
as the motorcyclist was a stranger and did not own any duty of care towards
the claimant. The deceased could not reasonably foresee any injury to the
plaintiff.
Case: McLoughlin v. O’ Brian (1983)
Facts: Due to the negligence of defendant, a road accident occurred in which
one of claimant’s daughter died, and her husband and another of daughter of
her was injured. At the time of the accident, the claimant was at her home.
After one hour of the accident, one of the friends of the claimant informed her
about the accident, who also drove the claimant to the hospital. Upon her
arrival at the hospital, she was told about the death of her daughter and saw
other injured members of her family. She claimed damages for psychiatric
injury against the defendants
Held: She could claim damages from the defendant as she experiences
psychiatric shock in the “immediate aftermath” of the incident
The court also laid down three elements for a secondary victim to successfully
sue the defendant for the psychiatric harm resulting from the defendant’s
negligence. The three elements are:
i) The claimant must be in a relationship of “close ties of love and affection”
with the person perceived to be in danger

ii) The plaintiff should be sufficiently proximate in space and time to the event
causing psychiatric harm.
- The claimant need not witness the event first hand. If the psychiatric injury
occurs in the “immediate aftermath” of the event, the claimant can
successfully claim damages as a secondary victim.

iii) The means causing psychiatric trauma to the claimant must be by sight or
hearing of the horrifying incident or its immediate aftermath

Case: Alcock v. CC South Yorkshire (1992)

Facts: Due to the negligence of the defendants, around 95 people were
crushed to death and over 400 were injured in 1989 at Hillsborough Stadium
in Sheffield during a football match. Ten people (claimants) who were neither
physically injured in the incident, nor were they in any danger claimed
damages from the psychiatric harm that they experienced due to the incident.
Some of the claimants saw the incident on television broadcast.
 Held: The court held that the claimants could not claim damages as:
- the interval between the incident and the sight of the bodies by the claimants
was around nine hours.
- the television broadcast depicted the unfolding of the chaos at the stadium,
but, did not show identifiable people who died/ were injured- lack of
immediacy

The Court laid down limitations beyond reasonable foreseeability and medical
proof of causation with respect to claims by the secondary victims of
psychiatric injury. These limitations (that were first discussed in McLouglin
case) are also known as the “Alcock control mechanisms.” These involve three
kinds of proximities:
 Proximity between the secondary and primary victim i.e. the class of
persons who can claim damage as secondary victims (claimants) of
psychiatric harm: bond of love and affection
 Physical proximity between the secondary victim and the event i.e.
Proximity (space/time) of such persons to the event resulting in mental
injury: The claimant should have witnessed the event either directly or
there was sufficient proximity between the claimant and the
“immediate aftermath” of the event.
 Causal proximity between the claimant and the event i.e. the means by
which the mental injury was caused- mental injury must be caused by
direct perception (by seeing and/ or hearing the event) or its immediate
aftermath. Notification by third party is not acceptable.
 Additionally, the mental shock must be a "sudden" and not a "gradual"
shock to the claimant's mind

2) Pure Economic Loss

- General Rule: In case of Pure Economic Loss, damages cannot be recovered. But,
consequential economic loss can be recovered
Pure Economic Loss Consequential Economic Loss
Definition A loss that does not result from A loss that results out of injury
 either physical injury to the to the claimant or the claimant’s
claimant or damage to his/ her property
property
Example A negligently kills B. C, who A gets injured due to B’s
works for A cannot claim negligence. A can recover the
damages from A for the loss of medical expenses that A has
his job as the loss claimed to be incurred from B, the defendant
suffered by C is a pure economic
loss
Recoverability? Not recoverable because there Such losses are recoverable
could be potentially unlimited
claims that could inundate the
courts

- Exception: In some instances, pure economic loss can be recovered

3) Assumption of Responsibility
- Where the defendant assumes a responsibility and possess or claims to possess some
“special expertise”, prima facie duty of care exists, especially if the claimant is likely to rely
upon the defendant’s advice. In such cases, damages (including pure economic loss) needs to
be paid by the defendant to the claimant
Case: Hedley, Byrne & Co Ltd v. Heller and Partners Ltd (1964)
- liability of negligent misstatement

4) Public Authorities and Negligence

- Public authorities can be made liable for performing their duty negligently

5) Lawyers and Negligence

- lawyers can be held liable under the tort of negligence if they perform their duty
negligently
Case: White v. Jones (1995)
Facts: The solicitors were negligent in not preparing a will on time, and as a result of which
the deceased’s daughters lost the inheritance that their father intended to bequeath to them.
 6) Omission
- There is no legal duty in Tort law to take positive action for the benefit of others.
- Exception: special relationships. E.g. if claimant is under care or control of the defendant
such as the students studying in a school (the school has duty to ensure safety of its pupils)

NEGLIGENCE ELEMENT 2: BREACH OF DUTY OF CARE

- The defendant breaches the duty of care owed to the plaintiff
- Reasonable Person Standard is used to determine whether the defendant has breached her/
his duty of care
- There are three points of discussion with respect to a Reasonable Person:
1. Qualities of a reasonable person
- a reasonable person is neither incompetent nor exceptionally capable
- personal traits or idiosyncrasies of the defendant are irrelevant
- if the defendant is a child, the test would be how would a reasonable child of the
defendant’s age would have acted under the given circumstances
Case: Roberts v. Ring (1919)
- 7 year old child case

Case: Fletcher v. City of Aberdeen (1959)

- A blind man injured by falling into an improperly barricaded ditch
- the degree of care that a disabled person is expected to take would be same as an “ordinarily
- prudent” person with that particular kind of disability would take

2. What is the standard of care that a reasonable person is expected to take in a

particular scenario?
- This can be determine through the following two steps:
Step I): Determine whether the risk of injury was reasonably foreseeable
Step II) If yes, how would a reasonable person have responded to it. This would again depend
upon following factors:
i. Probability of Risk
case: Bolton v. Stone (1951)- a ball from the cricket ground hits the claimant on the adjacent
highway
ii. Gravity of risk
case: Paris v. Stepney BC (1951)- one-eyed person employed at the defendant’s factory lost
other eye too in an incident
case: Glasgow Corporation v Taylor (1922)- unfenced poisonous fruit tree in a public park
iii. Cost of taking precautions by the defendant should be reasonable
- cost-benefit analysis
- If the defendant’s conduct that gives rise to a risk is beneficial, such a risk taking is
permitted
Case: Latimer v. AEC Ltd (1953)- held, that the risk created by slipper patches in an
aftermath of a heavy rainstorm was not so high as to justify the closing down of the factory
iv) Importance of the object to be attained
Case: K Nagireddi v. Government of Andhra Pradesh (1982)
v) Amount of consideration paid for services that are offered
- Higher consideration require higher duty of care
Case: Klaus Mittelbachert v East India Hotels (1997)- a luxury five star hotel charging
very high fee owes grater duty of care to its customers- liable for injury/ death of the pilot by
diving in a defective swimming pool

3. How to prove that the defendant fell below the standard of the reasonable person?
- whether a defendant acted as per the reasonable person standard is a question of fact that
would be determined in case by case basis
- Standard of Proof: Balance of Probabilities (standard civil law practice)
(versus criminal law standard- requiring evidence to be “beyond reasonable doubt”
- Burden of Proof:
General Rule: the initial burden of proof to prove the elements of a tort against a
defendant lies on the claimant/ plaintiff. Once the plaintiff makes a prima facie case
against the defendant, the burden of proof shifts on the defendant
 Exception: Res Ipsa Loquitor (the thing speaks for itself): In such cases the initial
burden of proof lies on the defendant. If the defendant is able to successfully rebut,
the burden of proof shifts on the plaintiff
Examples of some common situations of res ipsa loquitor:
 Injury/ death caused due to electric shock:
Case: Nirmala v. Tamil Nadu Electricity Board (1984)
Case: Asa Ram v. MCD (1996)
 Injury/ death caused by falling in an open manhole
Case: Shri Kishan Lal & Others v. Government of NCT of Delhi & Others
(2007)
 Foreign Matter left inside during medical surgery
Case: Nihal Kaur v. Director, PGI, Chandigarh (1996)- scissors left inside
 Road accident
Case: Karnataka State Road Transport Corporation c. Krishnan (1981)- two
passengers got their armed severed when two buses brushed past each other
Case: G. Satpathy v. Brundoban Mishra (1983)- very clear case of res ipsa loquitor
 A person getting injured due to an object falling on him
Case: Byrne v. Boadle (1863)

- The maxim of res ipsa loquitor is not applicable when facts can be interpreted
differently. For the maxim of res ipsa loquitor to be applicable, the negligence of the
defendant should be “clear and unambiguous”
Case: Syad Akbar v. State of Karnatake (1979)
- Rebuttal of presumption of negligence- moderately driven bus swerves to protect a
child crossing the road suddenly, the child still got injured due to pot holes in the
road- res ipsa loquitor was not applied
Case: Nagamani v. Corporation of Madras (1956)- An iron post fell on the
claimant

NEGLIGENCE ELEMENT 3: DAMAGE

- Non-remote damage caused by the breach of duty of care owed by the defendant to the
plaintiff
- Keywords: causation, foreseeability, proximity , remoteness
Winfield: Chapter 7 (Causation and Remoteness)
Ratanlal & Dhirajlal: Chapter 9: Remedies (Parts A, B, C and D)
 Causation:
- Any act can have a range of consequences- the question is where to draw a line to determine
what kind of damages does the defendant needs to pay for.

-Two Kinds:
1) Causation in fact: But-for test
2) Causation in law: sufficiently legally effective cause
- Multiple causation:
General Rule: In case of multiple causes leading to an injury, the plaintiff needs to
prove that the defendant’s act caused the injury
Exception: Fairchild Exception laid down in Fairchild v. Genhaven Funeral
Services Ltd. (2002)- even though the claimant could not prove that he developed
mesothelioma (a kind of cancer) due to exposure of asbestos dust exposure during the
course of his employment with a particular employer, the court granted compensation
to the plaintiff on the basis of the principles of “justice and fairness”

 Remoteness of Damage:
- Scott v. Shepherd (1773)- lighted squib case- a person would be held liable for
unforeseeable damage in case of intentional acts
- 2 tests to assess remoteness of damage
Test 1: Test of Directness (overruled now)
- laid down in Re Polemis & Furness, Withy & Co Ltd (1921)- a spark due to
negligent handling of a plank by the defendant’s servants ignited the cargo of petrol
and burnt down the entire ship
- It was held that if some damage to the claimant was foreseeable, the defendant was
liable for all the direct consequences of his/ her wrongful act. Thus, the defendant had
to pay for the entire damage caused

Test 2:
Test of Reasonable Foresight (The Wagon Mound Case, 1961)
 - It was laid down in the case of: Overseas Tankship (UK) Ltd v. The Miller
Steamship Co (1961)- claimant’s wharf got destroyed due to the spilled fuel
(negligently caused by the defendant) catching fire
This case overruled the Re Polemis Test of directness of damage
Instead, it favored the test of Reasonable Foreseeability: the defendant needs to pay
only that damage that was reasonably foreseeable.
In this case, some damage to the plaintiff’s wharf due to oil spillage was reasonably
foreseeable, but, not the wharf getting damaged in a fire. Thus, the defendant was not
liable to pay for the entire damage caused.
- This is good law now, and a number of subsequent cases applied this case.
E.g. Hughes v. Lord Advocate (1963)- child received burn injuries while playing
with a lamp near a manhole
E.g. Doughty v. Turner Manufacturing Company Limited (1964)- explosion due
to slippage of an asbestos cement cover into a cauldron of molten liquid was not
unforeseeable

 Just because it is difficult to calculate damage in a particular case, the courts cannot
refuse to assess damage or grant merely nominal damage. In India in particular, if the
plaintiff is unable to provide the best evidence of damage, the courts can issue judicial
notice to calculate the same
 E.g. Shaikh Gafoor v. State of Maharashtra (2008)- canal construction was
defective and the government was liable to pay compensation to the plaintiff for the
damage caused to his land. (vs K. Nagireddi v. State of Andhra Pradesh 1982- the
construction was canal was not defective)

CALCULATING/ MEASURING DAMAGES:

 Winfield: Chapter 23, Part C;

Ratanlal & Dhirajlal: Chapter 9, Part D
 Kinds of Damages (General and Specific)
 Sub-categories of Pecuniary Damages
- Compensatory Damages: restitutio in integrum- putting the claimant in the pre tort
position
- Exemplary damages: punitive damages

- Gain-based Damages
DUTY OF CARE IN SOME SPECIAL CASES: MEDICAL NEGLIGENCE

 A professional is a person having or professing to possess a “special skill” with

respect to a particular profession
See IMA v. V.P. Shantha & Ors (1995) for distinction between profession and
occupation
See Jacob Matthew v. State of Punjab (2002)

 Each profession requires a specific set of skills. A person who claims to be a

professional in that profession needs to
i) possess those skills and
ii) exercise those skills with due care and caution
- This does not mean a 100 percent guarantee of success

 To determine the standard of professional care that a doctor needs to take towards his/
her patient, BOLAM TEST was laid down in the case of Bolam v. Friern Hospital
Management Committee (1957). As per the case:
- If a situation requires exercise of some special competence or skill, the standard that
needs to be adopted is that of an “ordinary skilled person exercising and professing to
have that special skill”
- the requirement to rebut the imputation of negligence upon the defendant, the
defendant only needs to show that “a body of opinion” within a particular supported
the defendant’s cause of action
- Thus, if contradictory opinions are present in a field, it is sufficient to prove that the
defendant’s act was supported by one such body of opinion
- medical professionals need not disclose all risks (this ruling of the Bolam case was
struck down in the case of Montgomery v. Lanarkshire Health Board (2015)-
where it was held that the medical professionals have a duty to disclose all risks of
material nature to the patient)
 Practitioner of one field of medicine cannot impinge upon other field:
Case: Poonam Verma v. Ashwin Patel and Ors (1996)- death due to a homeopath
prescribed allopathy medication
 An error of judgement does not necessarily imply negligence
 Case: M/s Spring Meadows Hospital v. Harjot Ahluwalia (1998)- held the hospital
to be negligent
 Negligence in tort vs crime: explained in Jacob Matthew v. State of Punjab (2005)
 Doctor’s Duty to attend to a patient:
Case: Sishir Rajan Saha v. The State of Tripura (2007)
 Doctor’s Duty of Care: A doctor needs to carefully decide whether to take up a case,
what treatment should be given in a case, and the way in which a treatment is
administered
Case: Dr. Lakshman Balkrishna Joshi v. Trimbak Bapu Godbole (1989)
Case: Malay Kumar Ganguly v. Sukumar Mukherjee (2010)
Case: Philips India Ltd. V. Kunju Punnu (1975)
 Doctors acting callously
Case: Gian Chand v. Vinod Kumar Sharma
 Fatal omission by a doctor shows negligence
Case: Dr. Narayana K. Swamy v. A. Nazir Ahmad Khan (2008)
Case: Ram Bihari Lal v. Dr. J.N. Srivastava (1985)
Case: Dr. TT Thomas v. Elissar (1987)
 Lack of preventive measures in hospitals tantamount to negligence
Case: Suraj Mal Chhajer v. State of Rajasthan (1992)
 Foreign matter left in the body during surgery
Case: Aparna Dutta v. Apollo Hospital Enterprises Ltd. Madras (2000)
Case: A H Khodwa v. State of Maharashtra (1996)
 Not just the doctor, but, other staff members can also be held liable for negligence
Case: R.P. Sharma v State of Rajasthan (2002)- death due to wrong blood group
being transfused
 Duty to maintain secrecy
Case: Dr Tokugha v. Apollo Hospital Enterprises Ltd. (1999)
 Medical Negligence:
Case: Dr. Kunal Saha v. Dr. Sukumar Mukherjee (2011)
 DENIALS/ DEFENCES TO THE TORT OF NEGLIGENCE
 Read along with the chapters on General Defences and Remedies. Look up Winfield’s
classification.
 Some common defenses are mentioned as follows:

1) VOLENTI NON FIT INJURIA

Two elements: 1) Knowledge of risk of injury and 2) Voluntary taking up of the risk

Case: Smith v. Charles Baker and Sons (1891): Claimant employed to drill rocks.
Was hit and injured by a rock falling from a crane. Second element not met.

Case: South Indian Industrials Ltd. V. Alamelu Ammal (1923)- read it with Fatal
Accidents Act 1855: The deceased employee was hit by a flying piece of cast iron
that was being broken down by dropping a heavy weight
Case: Hall v. Brooklands Auto Racing Club (1993)- car race accident killing and
injuring spectators
Case: T. C. Balakrishnan Menon v. T. R. Subramanian (1968)- minnal gundu
explosives in temple festival
Case: Morris v. Murray (1990)- airplane crash under the influence of voluntary
consumption of alcohol

Exception to volenti non fit injuria: Rescue Cases:

E.g. Haynes v. Harwood (1936)- policeman seeking to control bolting horse of a van
left unattended

2) ACT OF GOD
Case: Manindra Nath Mukherjee v. Mathuradas Chatturbhuj (1946)- heavy
rains not unanticipated in Calcutta, thus, the defence of Act of God was not available
in the case where a postor displayed on a sky-sign on roof of a building fell and
injured the claimant

3) MISTAKE: not usually allowed as defense

4) STATUTORY AUTHORITY
- If an act that is performed as per a statute, it needs to be performed without
negligence.
Case: Ramchandraram Nagaram Rice & Oil Mills Ltd. Gaya v. Municipal
Commissioners of Purulia Municipality (1943)
- transportation of edible oil in garbage truck case. In this case, the court quotes from
Clerk and Lindsel on Torts [8th Edn., p. 373]:

Even in cases in which the nuisance complained of is prima facie authorized

by statute, the party causing it will be liable if he does not take reasonable
precautions to prevent damage resulting therefrom. Though exempt from the
absolute liability which would attach to a person not acting under statutory
powers, he is still liable if he exercises his powers negligently or unreasonably

5) INSANITY

Case: Breunig v. American Family Insurance (1970)- accident caused due to

insane delusion experienced by the driver of a car who believed that the car could fly.
Held that the defense of insanity was not available as she had the knowledge that she
could get insane delusions
 REMEDIES
Contributory Negligence
- Winfield et al. regard this as remedy rather than defense as it “prevent liability from
arising” and that it “merely affects the remedy available to the claimant”
- contributory negligence means that both the plaintiff and defendant are at fault
(versus composite negligence which arises because of negligence of more than one
defendants- independent and composite tortfeasors who are jointly and severally
liable)
- The word negligence when used with respect to the plaintiff in case of contributory
negligence is of common English parlance. It does not imply presence of a duty of
care that the plaintiff owed to the defendant or any other person. It merely means
failure to take care of oneself.
- contributory negligence is applicable to the conduct of the plaintiff only
- A finding of contributory negligence results in reduction of the compensation
payable by the defendant in proportion to the fault of the plaintiff
- There are two elements that need to be fulfilled to prove contributory negligence on
part of the plaintiff:
Element 1: the claimant did not take care of her/ his own safety or was negligent
towards one’s own self
Element 2: This negligence/ lack of care on part of the plaintiff/ claimant contributed
to the damage caused to the plaintiff/ claimant.
Both elements need to be proved. If one element is absent, defendant cannot argue
contributory negligence. Case: Agya Kaur v. PEPSU Road Transport Corporation
(1980)- overloaded rickshaw hit by a bus being driven on the wrong side of the road

- Stages in the development of law on contributory negligence under common law

1) Pre-1945: The plaintiff was not entitled to any damages if she/ he was found to be
negligent (regardless of the degree of negligence of the plaintiff/ claimant)- this was
viewed as unjust
2) Post 1945- Law Reform (Contributory Negligence Act, 1945) laid down the
doctrine of apportionment of damages: Depending upon the degree of fault of the
plaintiff/ claimant the cost/ damage payable by the defendant would be reduced
E.g. Dr. Kunal Saha v. Dr. Sukumar Mukherjee (2011): 10% fault of the plaintiff and
90% that of the defendant
 E.g. Vidya Devi v. M.P. Road Transport Corporation (1974): 2/3 rd (plaintiff’s
deceased husband) : 1/3rd (defendant)
- Exceptions to the doctrine of apportionment of damages under contributory
negligence:
1. Motor vehicle accidents under the Motor Vehicles Act 1988 where the amount of
damage for death/ permanent disability is fixed regardless of the fault of the claimant
As per the 2019 amendment, following minimum damages are awarded to the
victims/ dependents of hit and run accidents:
Grievous injury: INR 50,000
Death: INR 2,00,000
2. Children: In India the courts generally are not in favor of making child plaintiffs/
claimants liable for contributory negligence
Case: R. Srinivasa v. K.M. Parasivamurthy (1976)

Note: Do not confuse contributory negligence with composite negligence

Composite Negligence: Negligence of two or more people (not the claimant) results in the
same damage.

UK: Composite Tortfeasors are of two kinds: Joint and Independent

Apportionment of damage between the various defendants is allowed under the Civil
Liability (Contribution) Act, 1978

India: departs from the UK law

Tortfeasors do not have a right to apportionment of damages. The liability is joint and several