Negligence

• Derived from latin word “negligentia” means failing to

pick up.
• Generally it means “act of being careless”.
• Legal sense- failure to exercise a standard of care-
reasonable man should exercise in a particular situation.
• In English Law- emerged as an independent cause of
action- 18th centaury.
• In Indian Law- IPC, 1860- contained no provision for
causing the death of person by negligence but it was
amended in year 1870 & 304 A was inserted.
 Definition
Winfield
“Negligence as a tort is the breach of Legal duty
to care by, which results in damage, undesired
by def. to the plaintiff.
 Blyth v. Birmingham Water Works Co.
Defined as the omission to do something which a
reasonable man would do or doing something
which a prudent/ reasonable man would not
do.
 Criminal Negligence
• 304A. Causing death by negligence.
[Whoever causes the death of any person by doing any rash or
negligent act not amounting to culpable homicide, shall be
punished with imprisonment of either description for a term which
may extend to two years, or with fine, or with both.]
Negligence – as a tort & as a crime
• In tort- extent of liability- determined by no. of damages
incurred by party.
• In Criminal Law- extent of liability- determined by amount &
degree of negligence.
 Case
Jacob Mathew v. State of Punjab
“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 ingredient of
mens rea cannot be excluded from consideration when the
charge in a criminal court consists of criminal negligence”.
 Difference between
Civil & Criminal Negligence
Civil Negligence
Conduct not a radical departure from a
way a reasonable person would have
responded.
Person fails to exercise ordinary care or
due diligence.
Lesser burden of proof as plaintiff only
has to prove that defendant was
negligent.
Punishment only extends to extent of
damage caused to Plaintiff i.e.
compensation for the damages.
Criminal Negligence
Act which is an extreme departure from
which a reasonable person would act in
similar circumstance.
Conduct that is so extreme & rash and it is
more than just a mistake in judgment or
distraction.
Plaintiff has to prove beyond a reasonable
doubt that defendant was acted with
criminal negligence.
Punishment is more serious & can be
convicted for a prison term & fine.
 Essentials of Negligence
For the Tort of Negligence, three things needs
to be proved:-
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.
 Essentials of Negligence
I. That the Defendant owed duty of care to the
Plaintiff.
• Legal duty not moral/social/religious duty.
• Plaintiff- establish- def. owed a specific legal duty to
take care- made a breach.
• No gen. rule defining such duty.
• Case Laws
 Donoghue v. Stevenson
 S. Dhanaveni v. State of Tamil Nadu
 Stansbele v. Troman
 Essentials of Negligence
II. Breach of the Duty
• Def. owed a duty of care & must be breach of Duty.
• Non- observance of standard of care- required in a
particular situation.
• Standard- reasonable/ ordinarily prudent man
• Def. acted like reasonable prudent man- no negligence.
• Case Laws
 Klaus Mittelbachert v. East India Hotels Ltd.
 U.P. Sharma v. Jabalpur Corp. & others.
 Saroj Basotia v. State of M.P. & Ors.
 Essentials of Negligence
III. Damage
• Cause of Action- actual/real Damage suffered.
• Onus of Proof- Plaintiff- if Injury or not.
• Exception- Res Ipsa Loquitor- Things Speak for itself.
Two conditions for application of this doctrine:-
1. Person- injured by negligence.
2. Negligence is not attributed by injured person himself or some third
party.

If conditions satisfied- onus of proof- shifted from Plaintiff to def.

• Case Laws
 Municipal Corporation of Delhi v. Subhagwanti
 Chairman, M.P.E.B., Rampur, Jabalpur v.Bhajan Gond
 Medical Negligence
Medical Profession- humanitarian profession- standard of care- doctors/hospital
auth- expected to be more- comparison- other cases of negligence- as may
be life threatening so proper care- taken- auth. & doctors..
Medical Practioner, when consulted by a patient owes certain duties like-
• A duty of care in deciding whether to undertake the case.
• A duty of care in deciding what treatment to give.
• A duty of care in the administration of that treatment.
Breach of duties- gives a right of action of negligence against him.
Medical Practioner- exercise- reasonable degree- skill/knowledge/care-
circumstances of each case.
• Vicarious liability of hospitals- “qui facit per alium facit per se” means- the
who acts through another act in his or her own interest.
• If staff- negligent- performance- prescribed work-hospital- liable.
 Case Laws
 Kunal Saha v. AMRI
 V. Krishan Rao v. Nikhil Super Specialty hospital.
 Jacob Methew v. State of Punjab.
Certain Guidelines were issued by S.C. in this case:-
• A private complaint may not be entertained unless the complainant has produced prima facie
evidence before the court in the form of a credible opinion given by another competent
doctor to support the charge of rashness or negligence on the part of the accused doctor.
• The investigating officer should before proceeding against the doctor accused of rash or
negligent act or omission, obtain an independent and competent medical opinion preferably
from a doctor in Government service qualified in that branch of medical practice who can
normally be expected to give an impartial and unbiased opinion in regard to the facts
collected in the investigation.
• A doctor accused of rashness or negligence may not be arrested in a routine manner simply
because a charge has been leveled against him unless his arrest is necessary for furthering
the investigation or for collecting evidence or unless the investigation officer feels satisfied
that the doctor proceeded against would not make himself available to face the prosecution
unless arrested, the arrest may be withheld.
 Defences of Negligence
Contributory Negligence
• Damage- suffered partly by plaintiff own fault & partly by fault of defendant.
• Def. prove- claimant failed to take reasonable care- own safety- failure cause
of their damage.
• If established- claimant have their damages reduced by court in proportion to
their fault.
• Operated as a complete defence.
• If plaintiff acted as prudent man- no negligence.
• BOP- defendant
• Def. does not take plea- plaintiff not bound to prove.
• Case Laws
 Butterfield v. Forrester
 R. Srinivasa v. K.M. Parasivamurthy.
 The Municipal Corp. of Greater Bombay v. Shri Laxman Iyer.
 Other Defenses
• Voluntary non-fit injuria
• Act of God
• Inevitable Accident

Defenses available to def.

Onus- def- to prove- not acted negligently & his
case falls under these defenses.