NEGLIGENCE

MEANING OF NEGLIGENCE

 Negligence is an independent tort which implies a breach of a duty

to care which results in damage to the claimant. 
 It is an actionable wrong which consists in the neglect of the use of
ordinary care or skill towards a person to whom the defendant owes
the duty of observing care and skill by which neglect the plaintiff
has suffered injury to person or property. 
 Negligence is not an affirmative word, it is a negative word; it is
the absence of such care, skill and diligence as it was the duty of
the person to bring to the performance of the work, which he is said
not to have performed. 
Negligence as a Civil Wrong (Tort) and as a crime

In R. v Caldwell the Supreme Court has recognised the

difference between negligence under tort and criminal law. 

In criminal law, the degree of negligence has to be higher than

that of negligence in a civil wrong. 

The essential element of mens rea cannot be excluded from

consideration when a charge is for criminal negligence. 
 Negligence as a civil wrong involves
‘simple lack of care’ but as a criminal
offence it requires very high degree of
negligence accompanied with mens rea. 
  Thesupreme court observed that there is a
marked difference as to the effect of evidence
Syed Akbar v. (proof) in civil and criminal negligence
State of
Karnataka
ESSENTIALS OF TORT OF NEGLIGENCE 

The definition involves three essentials of negligence

namely: 
1. A legal duty to exercise due care on the part of
defendant
2. breach of the said duty

3. consequential damage the plaintiff has suffered

1. DUTY TO CARE 
 Duty is the core ingredient of the tort of
negligence. 
 A person may be held liable in negligence only if
he owed a 'legal duty of care' towards the 
plaintiff. 
The test to determine whether the defendant owes a duty to the plaintiff or
not depends upon 'reasonable foreseeability' of damage which may be
caused 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.

Donoghue v. Stevenson  is the important case in that regard

 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 consequence injury to others and duty may
to be owed  to those to whom injury may reasonably and  probably
be anticipated if the duty is not observed.  
 In deciding as to how much care is to be taken in a certain
situation, one useful test is to enquire how obvious the risk must
have been to an ordinary prudent man. 
RURAL TRANSPORT SERVICE V. BEZLUM BIBI, AIR 1980 CAL. 165

 In this case the court observed that inviting passengers to

travel precariously on the top of an overcrowded bus is itself
a rash and negligent act and that apart when passengers were
being made to travel on the roof, a greater amount of care
and caution on the part of the driver was called so that his
leaving the metallic track by swerving on the right so close
to a tree with overhanging branch for overtaking a cart while
in speed is also a rash and negligent act.
 No liability when injury not foreseeable 

 In Krishnappa Naidu v. Union of India, the plaintiff's taxi, passing

through a level crossing, was hit by the defendant railways train. It
was found that the taxi driver entered into the level crossing in spite
of the warning by the gateman that the train was fast approaching,
but the latter paid no attention to the warning. 
 Held that the plaintiff was a trespasser and the train driver owed no
duty to a person who deliberately puts himself into danger in face
of an approaching train. 
 The railway was not liable as the presence of rickshaw 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. 
Reasonable foreseeability does not mean
remote possibility 

 Toestablish negligence it is not enough to prove that the

injury was foreseeable, but a reasonable likelihood of the
injury has to be shown because "foreseeability does not
include any idea of likelihood at all". 
 Theduty is to guard against probabilities rather than bare
possibilities. 
 If the possibility of danger emerging is only a mere possibility
which would never occur in the mind of a reasonable man, then
there is no negligence in not having taken extraordinary
precautions.... People must guard against
reasonable probabilities but they are not bound to guard against
fantastic possibilities. 
2. BREACH OF DUTY 

 Breach of duty means non – observance of due care which is

required in a particular situation. 
What is the standard of care required? 
 The standard is that of a reasonable man or of an ordinary
prudent man. 
 Ifthe defendant has acted like a reasonable prudent man,
there is no negligence
Standard of care required

 The law requires taking of three points into consideration to

determine the standard of care required
 A) The importance of the object to be attained
 B) the magnitude of risk
 C) the amount of consideration for which services etc. are offered
The importance of object to be attained

 Law does not required greatest possible care but

the care required is that of a reasonable man under
certain circumstances. The law permits taking 
chance of some measure of risk so that in public
interest various kinds of activities should go on. 
The magnitude of risk

 The degree of care required varies according to

situation
 The degree of care depends on the magnitude of
risk.
 Example : Ryland v fletcher ( escape of dangerous
thing)
 Glasgow Corp v. Taylor

 In this case there was lack of due care according to the circumstances of the case. In this
case poisonous berries were grown in a public garden under the control of corporation.
The berries looked like cherries and thus had tempting appearance for the children. A
child aged 7, ate those berries and died. 
 The court held the defendant liable as the notice regarding deadly character of berries
was not displayed. 
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 therefor from the plaintiff. 
 Example: price of water bottle
 3. Damages

 Itis also necessary that the defendant's breach of duty must cause
damage to the plaintiff. The plaintiff has also to show that damage
thus caused is not too remote a consequences of the defendant's
negligence. 
 In suits in which the damages  are claimed, the onus, it is held, on the
plaintiff to prove all items of the 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  lies heavily on 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. 
However, there are certain cases when the plaintiff
need not prove and the inference of negligence is
drawn from the facts. 

There is a presumption of negligence accordingly to

the maxim res ipsa loquitur  which means things
speak of itself. 
 Thus, where the event charged as
negligence "tells its own story" of
negligence on the part of the defendant,
the story so told being clear and
unambiguous, the maxim res ipsa
loquitor applies. 
CHIEF EXECUTIVE OFFICER, CESCO V.
PRABHATI SAHOO
 A case of death by electrocution, the deceased person came in
contact with 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. 
 In view of the character of incident and circumstances, the doctrine
of res ipsa loquitur was held applicable in the case. The Orissa
High Court said that material in record showed that the incident
took place due to rashness and negligence of the authorities. 
 The maxim is not a rule of law. It
is the rule of evidence benefitting
the plaintiff by not requiring him
to prove negligence. 
Mrs. Aparna Dutta v. Apollo
Hospital Enterprises Ltd. 
 In this case the plaintiff got herself operated for the removal of her uterus in the
defendant hospital, as there was diagnosed to be a cyst in the area of one of her
ovaries. 
 Due to negligence of the hospital surgeon, an abdominal pack was left in
her abdomen. 
 The same was removed by subsequent surgery.
 This was held to be a case of res ipsa loquitur
 The doctor who performed the operation and the hospital authorities were held
liable to pay compensation of Rs. 5,80,000 to the plaintiff for the negligence. 
Essentials of the doctrine of Res Ipsa Loquitur

 In order succeed in his plea, the plaintiff has to show that:

 1. the thing which caused damage or harm to him, was under the
control of the defendant;
 2. while in the defendant’s control, an incident or event happened,
which could have in ordinary course, not happened without the
negligence of the defendant; and
 3. that the defendant does not have or fails to give a satisfactory
explanation for the mishap
 Under this circumstances, the defendant in order
to avoid liability must rebut his negligence or give
a satisfactory cause for the happening of the
mishap or event failing which he will be held
liable. 
DEFENCES

 In an action for negligence the defendant can avail

of any of the following defences – 
 1. Act of God
 2. Inevitable accident
 LIMITATIONS OF THE DOCTRINE OF
RES IPSA LOQUITUR
 The application of the maxim is, however, subject to certain limitations which are briefly
stated as follows- 
 1. the rule has no application in all the cases of accidents or mishaps. It applies when the
cause of accident or mishap lies solely within the knowledge of the defendant or it is
under the control of the defendant or his employee or servant
 2. it is  not a presumption of  law in negligence cases but only a rule of evidence which is
capable of being rebutted by the defendant
 3.  where the maxim applies, the plaintiff is only to prove the occurrence of the accident or
mishap leaving it for the defendant to prove that he was not negligent, that is, he exercised
due care and caution but despite that, the incident occurred. 
MEDICAL NEGLIGENCE

 In medical negligence cases, the hospital

authorities are under a duty independent of
vicarious liability to take care to ensure that its
treatment units are properly staffed and equipped
in order to cope up with the medical needs of the
people.  
 Contributory Negligence

 When a plaintiff by his own conduct and want or care contributes to the
damage caused to him by the negligence of the defendant, his claim for
damage is proportionally reduced to the extent of his part of the negligence. 
 The burden of proving the contributory negligence of the plaintiff lies on the
defendant and if he succeeds in  it, the quantum of damages which he is
required to pat to the plaintiff is proportionately reduced to the extent of
latter’s negligence.