NEGLIGENCE

● Negligence is the omission to do

something which a reasonable man
would do, or doing something which
a prudent and reasonable man
would not do
• In law of torts negligence has two
meanings
• first an independent tort.
• a mode of committing certain other
torts example trespass or nuisance
The wilful wrongdoer is he who
desires to do harm
the negligent wrongdoer is he who
does not sufficiently desire to
avoid doing it.
 Introduction
Negligence may be an element of tortuous act like
trespass, nuisance and defamation.
Negligence per se is an independent tort.
“Negligence is the breach of duty caused by the
omission to do something which a reasonable man
would do or refrain from doing some act which a
reasonable prudent man would not do”
Poonam Verma v. Ashwin Patel
Contd….
In an action for negligence , the plaintiff has to
prove :
1. That the defendant owed duty of care to the
plaintiff
2. The defendant made a breach of that duty
3. The plaintiff suffered damage as a
consequence thereof
 Duty of Care
• Duty shall be legal duty.
• Moral, social or religious duty are not enforceable by law.
• No law prescribes or defines the duty of care but it depends
upon the facts and circumstances of the case as to whether
such duty exists or not.
• It is difficult to define the relations between the parties
which gives rise to the duty.
• The duty to take care arises out of various relations , it is not
possible to list out such relations exhaustively.
• It is the courts that recognise the existence of duty in a
relation when they think it is just.
 Duty of care
• A man may be entitled to be as
negligent as he pleases to the whole
world if he owes no duty to them.
• A person will not be liable in tort of
negligence for every careless act when
he has no duty of care.
 Rule in Heaven v. Pender
The defendant, the owner of a dry dock, entered into a contract
with a ship owner to supply a stage supported by ropes that
would be flung over the side of a ship while it was in the dock.
Painters employed by an independent contractor used the stage
to paint the ship. Whilst painting, one of the ropes gave way and
one of the painters was injured. The ropes had been scorched
before they were supplied by the defendant, who had failed to
give reasonably careful attention to their condition.
The injured painter sought to sue the defendant. However, he
had no contract with the owner, so he sued in tort.
Did the defendant owe the injured painter a duty of care?
Contd….
“Whenever one person is by circumstances
placed in such a position with regard to another
that everyone of ordinary sense who did think
would at once recognise that if he did not use
ordinary care and skill in his own conduct with
regard to those circumstances he would cause
danger of injury to the person or property of the
other, a duty arises to use ordinary skill and
avoid such danger”
Contd….
In Donoghue v. Stevenson – here the court
identified duty of care of Manufacturer
towards the ultimate consumer.
Court held – “ You must take reasonable
care to avoid acts or omissions which you
can reasonably foresee would be likely to
injure your neighbour.”
 Ginger beer case is authority for
• 1. Negligence is a distinct tort
• 2. That the absence of privity of contract
between plaintiff and defendant does not
preclude liability in tort.
• 3. Manufacturers of products over duty of care
to the ultimate consumer.
• Lord Atkin formulated the neighbour principle.
• Is also authority for opening up new categories
of liability.
Contd…
Duty of care depends upon the reasonable foreseeability of
injury :
• Whether defendant owes a duty of care towards the plaintiff
or not depends on the reasonable foreseeability of the
injury to the plaintiff.
• Duty to take care after foreseeing is to avoid doing or
omitting to do anything that may probably cause injury to
others.
• Such duty is towards only those whom injury may
reasonably and probably be anticipated if duty is not
performed.
Contd…
Who is a reasonable man ?
Reasonable man is presumed to be free both
from over-apprehension and from over-
confidence.
 Dr. M. Mayi Gowda v. State of Karnataka

Plaintiff along with five children took an elephant joy-

ride in Mysore Dasara exhibition. After completion of
the ride while getting down form the cradle the
elephant became panicky due to rush hour and moved
forward and as result plaintiff fell down and lost his
both eye sights.
Was defendant negligent ?
Held : No negligence on the part of the defendant . The
reason of the accident was unusual and unfortunate
behaviour of the elephant.
 Duty of care and standard of care
The concept of reasonable foresight is
used in seeking answer to at least two
distinct questions-was the defendant
under any duty of care at all and if so did
he observe the standard required in the
circumstances of the case.
Duty of care and remoteness of damage

The concept of reasonable foresight is

relevant not only in testing the existence
of the duty but also in the cases of
admitted negligence (where in duty and
its breach are admitted) the question of
remoteness of damage.
Two functions of reasonable foreseeability

1. It may be used as a test of whether a new

duty should be added to the existing list of
the admitted duties
2. it may be used as a test of the scope or
extent of an admitted duty
 Nature of the interest infrunged
Tort of negligence does not refer to the
scope of the protection it affords to the
plaintiff but rather to the qualities of
blameworthiness or a for it to be attributed
to the conduct of the defendant. Position is
reverse in torts of defamation or conversion
• Take a name of tort it suggest Nature of
interest.
 Booker v. Wenborn
Defendant boarded a train which had just started
moving but kept the door of the carriage open.
The door opened outside and hit the plaintiff
who was a Porter standing on the edge of the
platform and injured him.
Held : The defendant was held liable for
negligence because a person boarding a moving
train owed a duty of care to a person standing
near it on the platform.
 S. Dhanaveni v. St. of Tamil Nadu
A person slipped down into a pit filled with rain
water in the night. He caught hold of a electric
poll to avert a fall. Due to leakage of electricity
in the pole, he was electrocuted and died.
Held : The defendant who maintained the
electric pole was considered negligent and was
held liable for the death of the deceased.
 Rural Transport Services v. Bezlum Bibi
Taher Seikh boarded a bus run by the appellant. Since the
bus was overcrowded the deceased Taher Seikh along with
other passengers got on to the roof of the bus as there was
no accommodation available inside the bus. Unfortunately
for him when the bus was taken on the right side of the
road to overtake a cart on the road. The deceased Taher
was struck by an overhanging branch of a tree and he fell
down on the ground sustaining multiple injuries in his
forehead, chest etc. He was removed and there he died on
the day following as a result of the injuries suffered.
 Ishwar Devi v. UOI
One sham lal Malik boarded DTU bus at a bus
stop. When had just stepped on foot board the
conductor rang bell and driver moved bus very
closely to the another bus parked in front ,
because of that Sham lal got squeezed between
both the buses suffered injury and died.
Held : Conduct of both driver and conductor was
rash and negligent hence the employer was held
liable for the negligence of its employees.
 Municipal Corpn. Delhi v. Sushila Devi

A branch of roadside tree fell on the scooterist and

he died.
Municipal Corporation was held liable to pay
compensation as negligence was attributed to it.
Sushma Mitra v. MPSRT
Plaintiff was injured while she had rested her elbow
on the bus window when a truck from opposite
side passed near by the bus.
Held : Both the drivers are liable for negligence
 Carmarthenshire County Council v. Lewis

Defendant school authority allowed an infant

student to run on the busy Highway. To avert
running over on that child a truck driver diverted
his truck and crashed against a telegraph pole
and died of injuries. His widow sued school
authorities for compensation.
Held : Negligence on the part of the school
authorities
 Municipal Corpn. of Delhi v. Subhagwanti

A Clock tower situated in the heart of the city

collapsed and caused death of several people.
The structure was 80 years old and average life
of a building was 40-45 years.
Held : MCD is liable for negligence.
No Liability when Injury is not foreseeable

Ryan v. Youngs – Driver died while driving his truck and

resulted in accident and injured the plaintiff.
Held : Defendant could not foresee the danger hence not
negligent.
MSRTC v. Albert Dias
Bus driver in the process of overtaking a cart got on to the
mud portion of the road and due to lose ground bus wheel
sank and bus toppled and resulted in injury to passengers.
Held : Driver could not foresee the danger hence not
negligent.
 Reasonable Foreseeability does not mean
remote possibility
To establish negligence it is not sufficient to prove that
the injury was foreseeable but a likelihood of the injury
has to be shown.
The duty is to guard against the probabilities rather than
bare possibilities.
Fardon v. Harcourt Rivington
Defendant left his dog inside the car, dog smashed the
car glass and jumped out of the car, the glass pieces
injured the plaintiff while he was passing near the
defendant’s car.
Contd….
Lord Dunedin held that – “If the possibility of
danger emerging is reasonably apparent, then to
take no precautions is negligence; but if the
possibility of danger emerging is only a mere
possibility which would never occur to the mind
of a reasonable man, then there is no negligence
in not having taken extraordinary precautions’.’ 
Contd…
Sukharaji v. SRTC, Calcutta
While Plaintiff’s son 14 years old got down from
moving road train and tried to cross the road
was ran over by a bus. The bus driver put break
with all his might but still could not save the boy.
Held : Defendant not liable because he could not
anticipate that certain passengers would jump
off a moving train where there was no stop.
Contd….
Bolton v. Stone
A cricket ball hit out of the ground injured the
plaintiff. This had happened 6 times in the last
90 years history of the stadium.
House of Lords held defendant not liable for
negligence.
Duty of Care in Medical Profession
• The standard of care needed in a particular case
depends on the professional skill expected from
person belonging to a particular class.
• When a medical practitioner attends to his patient, he
owes him the following duties of care :
1. A duty of care in deciding whether to undertake the
case
2. A duty of care in deciding what treatment to give ,
and
3. A duty of care in the administration of the treatment.
• The degree of care depends upon the
magnitude of risk which could have
been foreseen by a reasonable and
prudent man.
• A person carrying a loaded gun other
ordinary stick.
• Transporting inflammables and other
goods.
Dr. Lakshman Balkrishna Joshi v. Trimbak Bapu Godbole

20 year old suffered a fracture of the femur of his

left leg. He was taken to defendant’s hospital. The
defendant doctor to reduce the pain of fracture
gave single dose of morphia injection but did not
give any anesthetic to the boy. He used excessive
force in treating the fracture and used his three
assistants to pull the leg of injured patient. Then
plaster of paris was put up. The treatment resulted
in shock resulting in the death of patient.
Contd..
“The practitioner must bring to his task a
reasonable degree of skill and knowledge and must
exercise a reasonable degree of care. Neither the very
highest nor a very low degree of care and competence
judged in the light of the particular circumstances of
each case is what the law require. The doctor no
doubt has a discretion in choosing treatment which he
proposes to give to the patient and such discretion is
relatively ampler in cases of emergency.”
 State of Gujarat v. Laxmiben Jayntilal Sikligar

The plaintiff was suffering pain and discomfort in

swallowing. Went to city hospital there a civil
surgeon performed the surgery on her thyroid
gland. While performing the surgery the surgeon
cut the one of the nerves that is connected to
voice box and that resulted in partial paralysis.
Defendant was held liable to pay compensation
of Rs.1,20,000.
 Ram Biharilal v Dr. J N Srivastava
A patient was admitted for abdominal pain, doctor advised
to operate and remove appendicitis. The patient was put
under chloroform anesthesia. While performing surgery gal
bladder was also removed without the consent of husband
who was waiting outside the operation theatre.
It was not emergency case, gal bladder was not infected or
damaged. Due to toxic effect of chloroform kidney and liver
of the patient was further damaged.
Held : it is rash and negligent act of Surgeon hence he was
held liable.
 Jasbgir Kaur v. State of Punjab
A newly born child was missing later on it was
found profusely bleeding near the washbasin of
the bathroom , with one eyeball gouged out as
the baby was taken away by a cat.
A H Khodwa v. State of Maharashtra
After a child birth a sterilization operation was
performed and a mop was left inside the
abdomen of the patient. Later she developed
pain and died.
 State of Haryana v. Smt. Santra

Smt. Santra was a poor labourer had 7 children and

underwent sterilization operation under family planning
scheme. She developed further pregnancy and gave birth to
another girl child.
Both the doctor and state was held liable for negligence.
Satish Chandra Shukla v. UOI
Plaintiff underwent sterilization operation to get the
incentives by stating that he is married and has two female
children.
Held : doctors had no reason to disbelieve him and no
negligence on the part of the doctors.
 Pushpaleela v. State of Karnataka
Lions club organised a free eye camp and 151
persons were operated for cataract problem. 72
out of them lost sight of one eye and 4 of them
lost both the eye sights.
Held : standard guidelines laid down by the Govt.
for eye camp was not followed and procedure
adopted was not satisfactory, hence defendant’s
were held liable to pay compensation
Contd….

Suraj Mal Chhajer v. State of Rajasthan

Doctor died due to Hepatitis –B which she contacted while working in
hospital.
Aparna Datta v. Apollo Hospital Enterprises Ltd.
Abdominal pack was left inside the abdomen while removing uterus. – Res
ipsa locuitur
R P Sharma v. St. of Rajasthan
A patient was admitted for operation to remove gallstone and doctor advised
to infuse blood. Instead of O+ blood B+ blood was transfused. She lost her
eye sights then died.
Dr. Tokuhga v. Apollo Hospital
Hospital disclosed to the fiancé of the plaintiff about he being diagnosed as
HIV +
Duty must be owed to the Plaintiff
Palsgraff v. Long Island Railroad Co
A passenger carrying a package trying to board a
moving train was about to fall, the security guard
helped him by pushing inside the train and in the
process package fell down and exploded as it had
crackers and due to explosion few scales fell on
plaintiff resulting in injury to her.
Held : Defendant owed no duty to plaintiff
 Bourhill v. Young
Plaintiff got down from a tram car and while she
was removing her fish basket from the car, a
speeding motor cyclist passed by her and
rammed into car , she heard the noise and later
dead body of the motor cyclist was removed
from there and then she saw the pool of blood
there and suffered nervous shock and delivered
a still born baby. She sued the executor of the
motor cyclist for compensation.
 Nervous shock
• Wilkinson v. Downtown
• Whether defendant liable when the
plaintiff suffered nervous shock and
got seriously ill on being told falsely by
way of practical joke by the defendant
that her husband had broken both
legs in an accident.
• Nervous shock must be such as arises
from reasonable fear of immediate
personal injury to oneself.
• If a negligence of X danger is created
for A, A can bring an action if he
suffers nervous shock. if on the other
hand seeing or hearing of the danger to
B another person se say A sufferes
nervous shock. A cannot sue X
 Contributory negligence
• Davies v. Mann
• The plaintiff negligently left his
donkey, with its legs tied, in Highway.
• The defendant driving his waggon and
horses in high speed crashed donkey
and killed.
• It was held that the defendant was
liable.
• Although the donkey have been
wrongfully there defendant is not
justified driving over speed and
crashing it down. Defendant could
have prevented mischief.
• In this case the expression
contributory negligence is not used
• Defendant by use of reasonable care
could have avoided accident and
therefore he is liable not withstanding
the contributory negligence of the
plaintiff.