NEGLIGENCE

ABHINAV KAPOOR IV Semester Section A

THE MODERN TORT OF NEGLIGENCE

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A duty is imposed on a person by law to act with care towards others. If this duty exists and there is a failure to act carefully and another suffers loss, then the tort of negligence is committed. Negligence is an unintentional tort. Occurs when someone suffers injury because of the defendant’s failure to comply with a legal duty.

INGREDIENTS OF TORT OF NEGLIGENCE
To be successful in a negligence lawsuit, the plaintiff must prove that: 1. The defendant owed a duty of care to the plaintiff 2. The defendant breached the duty of care 3. The plaintiff suffered injury 4. The defendant’s negligent act caused the plaintiff’s injury it must be shown that the harm was not too remote.

BUT THE TWO MAJOR INGREDIENTS ARE:There

is a Legal duty of

care. And breach of duty is there.

DUTY OF CARE

A duty of care was originally established by applying Lord Aitkin's “Neighbor” Test from: Donoghue v Stevenson (1932) AC 562. – Ms Donoghue drank a bottle of ginger beer, manufactured by Stevenson. The bottle contained the decomposed remains of a snail which were not and could not be detected until the greater part of the contents of the bottle had been consumed. As a result she suffered from shock and severe gastro enteritis. – The case is that Stevenson as the manufacturers of an article intended for consumption and contained in a receptacle which prevented inspection owed a duty to her as consumer of the article to take care that there was no noxious element in the goods, that they neglected such duty and are consequently liable for any damage caused by such neglect.

SITUATIONS IN WHICH A DUTY OF CARE APPLIES
Supplier of goods or services – to persons being supplied  Local councils – e.g. to persons requiring zoning information  Solicitor holding will – to executor named in will  Dog owners – to people who may be bitten

BREACH OF DUTY

If a person owes some duty of care towards the other person and commits the breach of that duty, he is said to have committed negligence. There is a standard and a degree of care on the part of the person who is required to act like a prudent and reasonable man.

Where there is greater risk ,there is greater care. A person carrying a loaded gun is expected to take more precautions than a person carrying an unloaded gun. In surrender shetty vs. sanjiva rao, it has been held that the bus driver has more responsibility when in a school zone and should have control over the speed of the vehicle so as to stop immediately when noticed.

THE TEST
To test if there has been a breach of the duty of care, a court asks, “What would a reasonable man have done in that situation?”  It is an objective test in which the behavior of the defendant is compared with the behavior of an ordinary person in ordinary circumstances.  The defendant is expected to have the same general knowledge and understanding of the risks as the reasonable person  It also makes no difference if the defendant is actually more clever or more knowledgeable than the reasonable person

THE TEST

For example, if a motorist drove his car very quickly on an icy road and hit another car because he was unable to stop in time, the court would ask what a reasonable person would think and how they would behave in that situation

RES IPSA LOQUITOR
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The maxim “res ipsa loquitor”is a (Latin maxim) – the thing speaks for itself Res ipsa loquitor is not rule of law but the rule of evidence. As a rule if the cause of negligence is unknown and a plaint is filed the action may be rejected based on no direct evidence. However, some cases are peculiar in nature and have evidence, which does not require explanation and speaks for itself clearly regarding the unambiguous nature of the negligent act. These cases are under the purview of “res ipsa loquitor” require the defendant to prove completely that he took all precautions and reasonable care in order to avoid the resulted damages and that the damages did not occur due to his act. In order to invoke applicability of the maxim, three essential conditions are necessary: 1. The occurrence of negligence was unforeseen/ unexpected; 2. The negligence in general does not happen unless there is lack of care resulting in damages; 3. The defendant and only the defendant is liable for negligence.

E.g. In the case pillutla vs. gk Kumar, the plaintiffs husband was relaxing in the premises of his house when suddenly a portion under construction fell upon him resulting in his death. the principle of res ipsa liquitor was applied, resulting in negligence and the defendant was held liable.

CRIMINAL LIABILITY FOR MEDICAL NEGLIGENCE
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The standard of care which is required from a medical practitioner as laid down by McNair J in:Bolam v Friern Hospital Management Committee (1957)1 WLR 582–

In Dr. Suresh Gupta vs. Govt of NCT of Delhi AIR (2004) SC 4091,

“ the test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess expert skill, it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular article.”

it was held that where a patient dies due to negligent medical treatment of the doctor ,the doctor can be made liable in civil law for paying compensation and damages in tort and at the same time, if the degree of negligence is so gross and his act was reckless as to endanger the life of the patient, he would also be made criminally liable for offence under Section 304 A of IPC.( reliance placed on R v Adomako (1994) (3)All ER 79).

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