Wednesday, June 19, 2024





Explain the tort of negligence in detail.

• Introduction
In our day-to-day lives, negligence implies carelessness, or a state of being negligent, but according to the law, negligence leads to the failure to provide the basic care that a reasonable person would in all circumstances.

The main factors to consider when determining whether a person’s conduct lacks reasonable care include the likelihood that the conduct will cause harm, the likelihood that the harm will be severe, and the obligation to take reasonable steps to prevent or reduce the likelihood of harm.
If someone is injured as a result of another person’s negligence, they may be able to file a claim for damages to recoup their losses. These losses may include physical injuries, property damage, mental health issues, or economic losses.

The law on negligence can be broken down into five parts, as follows:
 •Duty
 •Breach of duty
 •Actual cause
 •Proximate cause
 •Damages.

• Definition of Negligence
According to Winfield and Jolowicz “Negligence is the breach of a legal duty to take care which results in damage, undesired by the defendant to the plaintiff.”
Lord Wright states that “Negligence means more than headless or careless conduct, whether in commission or omission; it properly connotes the complex concept of duty, breach, and damage thereby suffered by the person to whom the duty was owed.”

In Blyth v. Birmingham Water Works Co, Negligence was defined as the omission to do something which a reasonable man would do or doing something which a prudent or reasonable man would not do.

It can be characterized in three forms-
Nonfeasance: It refers to a situation where a person has failed to do a task that they were required to do. For instance, an old building’s repairs were not carried out when they should have been.

Misfeasance: The act of failing to carry out an action correctly in a manner that it should have been carried out correctly. For instance, carrying out repairs to an aged building, but using materials of inferior quality, increases the likelihood of a catastrophic collapse resulting in injuries.

Malfeasance: The term is used to refer to the practice of engaging in activities that should not have been undertaken in the first place. For instance, the use of products that are not permitted and flammable to undertake the renovation of an aged structure, thus transforming the structure into a fire hazard resulting in an accident.

Z, An owner of a big dog requests his friend X to take care of the dog while he is away. X leaves the dog unattended who attacks a passer-by badly injuring him. Here it will be said that the act occurred due to the negligence of X.

In the general sense, the extent of liability in tort is determined by the number of damages a party has incurred. Consequently, in criminal law, the extent of liability is determined by the amount and degree of negligence.

• Essentials of Negligence
To commit the tort of negligence, there are primarily 6 main essentials that are required. An act will be categorized as negligence only if, all the conditions are satisfied namely –

  1. Duty Of Care
    This is considered to be one of the fundamental requirements for making the person liable for negligence. It refers to the obligation of care that each person owes to another person at the time of the act. While this is true for all acts, in the case of negligence, the obligation of care is legal and cannot be unlawful or immoral, nor can it be moral, ethical, or religious.
    In the case of Stansbele vs Troman (1948), A house was decorated by a decorator, however, shortly after the completion of the project, the decorator departed the premises without locking the doors and notifying the homeowner. While the decorator was away, a burglar gained access to the premises and stole items of value, which the homeowner subsequently asserted to the decorator. The decorator was found to be at fault for his negligence in leaving the premises open and failing to fulfill his contractual obligation to the homeowner.
  1. The Duty must be towards the plaintiff
    A duty of care arises when the law acknowledges the existence of a relationship between a defendant and a plaintiff and imposes an obligation on the defendant to behave in a manner that is in accordance with the law. It is not enough that the defendant owes a duty of care to the plaintiff; a duty of care must also be established, which is typically determined by the judge.
    In the case of Bourhill v. Young (1943) The plaintiff, a fishwife, disembarked from the tram car and as she was being assisted in placing her basket onto her back, the motorcyclist, who had passed the tram, crashed into a motor car on the opposite side of the road, about 15 yards from the tram, resulting in the motorcyclist’s death. Since the tram was between the plaintiff and the scene of the accident, she was unable to witness the accident and the dead body. All she heard was the impact of the collision. After the body was removed from the scene, the plaintiff visited the scene and observed some blood on the road surface. As a result of this accident, the plaintiff suffered from a nervous shock, resulting in the birth of her still-born baby of 8 months. The deceased’s representatives were found not to have any duty of care to the plaintiff. Therefore, the plaintiff was not entitled to compensation from the deceased’s representatives.
    The case of Donoghue v. Stevenson (1932), The concept of “duty of care” has been developed based on the principle that each of us has a duty of care towards our neighbor or another person whom we could reasonably expect to be harmed by our actions or omissions. Even though there was no contractual relationship between the manufacturer of the product and the individual suffering the damage, an action for negligence can succeed because the plaintiff was able to succeed in her claim that the hat was negligent, even though she purchased the defective good (i.e., the bottle of ginger beer containing the snail) not by herself but by her friend.
  1. Breach of Duty to take care
    It’s not enough for a plaintiff to prove that the defendant owed him a duty of care but he must also establish that the defendant breached his duty to the plaintiff. A defendant breaches such a duty by failing to exercise reasonable care in fulfilling the duty. In other words, the breach of a duty of care means that the person who has an existing duty of care should act wisely and not omit or commit any act which he has to do or not do as tell in the case of Blyth v. Birmingham Waterworks Co, (1856). In simple terms, it means non-observance of a standard of care.
    In the case of Ramesh Kumar Nayak vs Union of India (1994), The post authorities failed to maintain the compound wall of a post office in good condition on the collapse of which the defendant sustained injuries. It was held that postal authorities were liable since that had a duty to maintain the post office premises and due to their breach of duty to do so, the collapse occurred. Hence, they were liable to pay compensation.
    Municipal Corporation of Delhi v. Subhagvanti (AIR 1966)
    A very old clock tower situated right in the middle of a crowded area of Chandni Chowk suddenly collapsed thereby causing the death of many people. The clock tower was 80 years old although the normal life span of the clock tower should have been 40-45 years. The clock tower was under the control of The Municipal Corporation of Delhi and they had a duty of care towards the citizens. By ignoring to repair the clock tower, they had breached their duty of care toward the public and were thereby liable
  1. Actual cause or cause in fact
    In such a situation, the plaintiff is responsible for proving that the defendant’s negligence caused the damages to be incurred by the plaintiff. This is commonly referred to as the “but-for” causation, which implies that if the defendant had not acted negligently, the damages would not have been incurred. For instance, when a bus collides with a vehicle, it is the bus driver’s actions that are the cause of the collision.
  1. Proximate cause
    The term “proximate cause” refers to “the legal cause”, which is the cause the law defines as the “primary cause” of an injury.
    A proximate cause is not the first thing that causes an injury, nor is it the last event that causes an injury. Instead, a proximate cause is an event that caused foreseeable consequences without the intervention of another person. In a negligence case, a defendant is only liable for the damages that he could have avoided through his actions.
    In the case of Palsgraf vs Long Island Railroad Co (1928), A man was in a rush to catch a train, carrying a packed item. The railway employees saw the man trying to get on the train and thought he was struggling. One of the employees on the rail car tried to pull him inside while the other one on the platform tried to push him to the train. The man dropped the package, which contained fireworks. The fireworks exploded when they hit the rails. The scales fell from the other end of the station, striking another passenger, Miss Palsgraf. Ms Palsgraf then filed a lawsuit against the railway company, claiming she was injured as a result of the actions of the railway employees. The court ruled that no reasonable person in the position of a railway employee could have known that helping the man to get on the railcar would set off the chain of events that led to her injuries.
  1. Consequential harm to the plaintiff
    It’s not enough to prove that the defendant did not act reasonably. It must also be shown that the defendant’s failure to act reasonably resulted in the award of compensatory damages to the claimant to whom it owed an obligation of care.
    The harm may fall into the following classes: –
    a. Bodily harm
    b. Harm to the reputation
    c. Harm to property
    d. Financial Loss
    e. Mental Harm
    When such damage is proved, the defendant is bound to compensate the plaintiff for the damages occurred. In the case of Joseph vs Dr. George Moonjely (1994) The Kerela high court awarded damages amounting to Rs 1,60,000 against a surgeon for performing an operation on a 24-year-old girl

• Difference between Criminal and Civil Negligence Criminal negligence is when a person behaves in a manner that is so extreme and reckless that it is seen as a departure from what a reasonable person would do in a similar or similar situation. The difference between civil negligence and criminal negligence is that civil negligence may not be considered to be a radical departure from how a reasonable person would respond.

Civil negligence is when someone fails to act with reasonable care or due diligence. Criminal negligence is when someone does something so extreme that it is considered to be a departure from what an ordinary prudent person would do and is seen as more than just a lapse in judgment or a distraction.

There is a difference in the burden of proof between civil and criminal negligence. In civil negligence, the plaintiff must prove that it is very likely that the defendant acted negligently. In criminal negligence, the burden of proof is higher and the plaintiff must prove it beyond a reasonable doubt. This means that the evidence must be so strong that there can be no other logical explanation other than the defendant acting with criminal negligence.

In the civil negligence case, the punishment for the defendant is limited to compensation for the harm caused to the claimant. In the criminal negligence case, the penalty is much more severe and can include imprisonment, a fine or probation supervision. For example, the sentence for criminal negligence in case of death under IPC, 1860 304A can be up to 2 years in jail and a fine, or both. For instance, if someone was driving a car under the influence and killed a person, it would be considered criminal negligence as it is considered extreme negligence.

On the other hand, if the housekeeper was mowing the floor of an office and forgot to keep a ‘wet floor’ signboard, then any accident that occurred would be considered civil negligence as it was a case of negligence but not extreme negligence as the housekeeper did not follow proper medical procedures or administer local anaesthesia.

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