Table of Contents
- Introduction
- Meaning and Definition
- Essentials of Negligence
- Defences Available in a Suit for Negligence
- How is Criminal Negligence Different from Civil Negligence
- Conclusion
- References
Introduction
In our day-to-day life Negligence highlights the meaning of carelessness or the quality or state of being. According to the legal sense, Negligence leads to the nonfulfillment of primary care which a performer should take as a reasonable man in all situations. As we all know, the Indian Law of Torts is based on the English Common Law. Thus the law relating to Negligence is adopted and modified by the Courts of India on the basis of the principles of ‘Justice’,’ Equity’ and ‘Good Conscience’.
In English Law, Negligence emerged as an independent cause of action only in the 18th Century. Similarly, In Indian Law, the Indian Penal Code, of 1860 contained no provision for causing the death of a person by negligence which was subsequently amended in 1870 by inserting Section 304 A.
Meaning and Definition
Negligence means “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 other surfers lose, then the tort of ‘Negligence’ is committed.
The term ‘Negligence’ is derived from the Latin word ’Negligentia’ which means ‘failing to pick up. In a general sense, the term ‘Negligence’ denotes mere carelessness and in a legal sense, it signifies the failure to exercise a standard of care which the doer as a reasonable man should have exercised in the circumstances.
In Blyth v Birmingham WaterWorks Co. (1856 ) [1]
In establishing the basis of the case, Baron Alderson made what has become a famous definition of negligence:
Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. The defendants might have been liable for negligence, if, unintentionally, they omitted to do that which a reasonable person would have done, or did that which a person taking reasonable precautions would not have done.”
In Lochgelly Iron & Coal Co. v MC Mullan [2]
In this case as per LORD WRIGHT, “ 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”
Negligence has been viewed in three ways:
Firstly: Involving a Careless State of Mind
Secondly: A Careless Conduct
Thirdly: Done Due to Negligence Injury and Damage and Damage may be Due to Breach of Conduct or Tort
Essentials of Negligence
1. Duty of care
Is a legal duty rather than a mere moral, religious or social duty. While performing an act every person owes a duty of care to another person. Duty of Care is a specific legal obligation to not harm others or their property.
Grant v Australian Knitting Mills Ltd., [3]
Two sets of Woollen Underwear were purchased by the Plaintiff from a Retailer who contracted skin disease by wearing underwear. Manufacturers negligently failed to remove excess sulphate while washing them. The manufacturers were held liable
as they failed to perform their duty to take care.
2. Duty must be towards the plaintiff
A Duty of Care arises when the law recognises a relationship between two parties. It is not sufficient that the defendant owes a duty to take care. It must also be established that the defendant has a Duty of Care towards the plaintiff.
In Donogue v Stevenson [1932] [4]
This case established the Neighbour Principle. Mrs Donogue consumed ginger beer purchased by a friend and noticed a decomposed snail in it. She had begun consuming the drink. She suffered from physical illness due to this and proceeded to claim against the manufacturer which was successful and resulted in the establishment of the ’Modern Law of Negligence’ and the ‘Neighbour Test’.
The Modern Law of Negligence can be said to have begun with the Landmark case of Donogue v Stevenson (1932)
Lord Atkin profound the following Rule:
“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure for neighbour”
Duty depends on reasonable foreseeability of injury-A defendant will only owe a duty of care to a plaintiff who is reasonably foreseeable. When determining whether a defendant breached his duty of care by acting below the Standard of Care, the Court first determines whether the risk was foreseeable. If it will not be required to take measures to prevent it. A defendant will only be liable for damage which is reasonably foreseeable, in other words, not too remote.
3. Breach of duty to take care
It’s not enough for a plaintiff to prove that the defendant owed him a Duty of Care, he must also establish that the defendant breached his duty to the plaintiff. The person who has an existing Duty of Care should act wisely and not omit or commit any act that he has to do or not do observed in the case. Non -Observance of a Standard of Care in the case
Blyth v Birmingham WaterWorks co., (1856)
In Municipal Corporation of Delhi v Subhagwanti [5]
In the heart of Chandhi Chowk, Delhi Clock Tower collapsed, causing the death of persons. The normal life of such structures are normally 40-45 years, but the Tower was around 80 years old. The Municipal Corporation of Delhi failed to take care to control the structure and was therefore held liable.
4. Actual cause or cause in fact
Actual cause means without the defendant’s act the plaintiff’s injury would not have occurred. The plaintiff who is suing the defendant for Negligence has the liability to prove that the defendant’s violation of duty was the actual cause of the damages incurred by him.
E.g.: When a bus strikes a Car, the bus driver’s actions are the actual cause of the accident.
5. Proximate Cause
Proximate Cause means ‘legal cause,’ or the cause that the law recognises as the primary cause of the injury. A person can be held liable for only those damages caused to the plaintiff that could be foreseeable or were an indirect consequence of the acts of the defendant. In a Negligence case, Proximate Cause relates to the scope of a defendant’s responsibility, for those harms that they could have foreseen through their actions.
In Palsgraf v Long Island Railroad Co.,[6]
The Court observed that ‘Negligence’ is not actionable unless it involves the invasion of a legally protected interest- the violation of a right which in this case claimed to be the right to be protected against influence with one’s bodily security. Bodily security is not protected against all forms of interference or aggression, but only against some. Negligence is the absence of care according to the circumstances”.
Court held that there was no negligence because the different railroad could not have reasonably foreseen that its employees’ conduct would have resulted in injury to plaintiff Palsgraf. The Court noted that the plaintiff had sued in her own right for a wrong person to her, and as the vicarious beneficiary of a breach of duty to another.
6. Damages
When a defendant has failed to exercise reasonable care and must result in actual damages to a person to whom the defendant owed a duty of care and a personal injury, the claim must be brought to Court within the appropriate time frame.
Damages for negligence constitute Court ordered compensation for personal injury, property damage and associated expenses caused by the negligence of another person.
In Joseph v Dr, George Moonjely (1994) [7]
Due to failure in following proper medical procedures and not even administering local anaesthesia while performing an operation on a 24-year-old girl, the High Court of Kerala awarded damages amounting to Rs. 1,60,000 against a Surgeon.
Defences Available in a Suit for Negligence
1. Contributory Negligence by the Plaintiff
When the immediate cause of the damage is the negligence of the plaintiff himself, the plaintiff cannot sue the defendant for damages and the defendant can use it as a defence. It is based on the maxim ‘VOLENTI NON FIT INJURIA’ which states that if someone willingly places themselves in a position which might result in harm, they are not entitled to claim for damages caused by such harm.
In the first instance, the burden of proving Contributory Negligence rests on the defendant. The plaintiff is not bound to prove its non-existence, in the absence of such evidence.
Shelton v L & W Railway [8]
While the plaintiff was crossing a railway line, a servant of the Railway Co., who was in charge of crossing, shouted a warning to him. Due to the plaintiff being deaf, he was unable to hear the warning and was consequently injured.
The Court held that this amounted to Contributory Negligence by him.
2. Act of God or Mis Major
An Act of God is a general defence used in cases of Torts when an event over which the defendant has no control occurs and the damage is caused by the forces of nature.
Vis Major is referred to as a loss that results immediately from a natural cause without the intervention of man, and could not have been prevented by the exercise of prudence, diligence and care.
In the case of Nichols v Marsland[9]
The artificial pond in the land of the defendant overflowed due to heavy rainfall, as a result, the water escaped into the lands of the plaintiff, damaging the walls and bridges. No liability could be imposed on the defendant, as the heavy rainfall which flooded the pond could not be predicted. It was considered as an ‘Act of God.
3. Inevitable Accident
Is available when some harm occurs during the performance of a legitimate act, done with all reasonable care, for any unavoidable reason, and as such, the damage does not give rise to a cause of action.
In Stanley v Powell [10]
The defendant and plaintiff went for a pheasant shooting. The defendant fired a shot at a pheasant, but the bullet ricocheted into an oak tree and struck the plaintiff, causing significant injuries.
The defendant was not held liable, as the event was deemed as an ‘Inevitable Accident’.
Holmes v Mathur [11]
A Pair of horses were being driven by the groom of the defendant on a public highway. On account of the barking of a dog, the horses started running very fast. The groom made the best possible efforts to control them but failed. The horses knocked down the plaintiff who was seriously injured.
It was held to be an ‘Inevitable Accident’ and the defendant was not held liable.
How is Criminal Negligence Different from Civil Negligence
| Civil Negligence | Criminal Negligence | |
|---|---|---|
| Meaning | A person fails to exercise ordinary care or due diligence or ordinary prudence. | A person fails to be aware of a substantial and unjustifiable risk. |
| Deviation | Can be found with any deviation from the reasonable person’s standard of care. | Requires a gross deviation from the reasonable person’s standard of care. |
| Burden of Proof | The plaintiff in such a case only has to prove that it is most likely that the defendant was negligent. | Plaintiff has to prove ‘beyond a reasonable doubt that the defendant was negligent, which is the highest standard of proof due to strong evidence. |
| Punishment | A person who was liable to the extent of damage caused to the plaintiff i.e.: Compensation for the damages. | The punishment is much more serious and can be convicted for imprisonment or fine or both i.e.: Under Section 304 A in IPC ‘Criminal Negligence Amounting to Death’. Punishment can extend to 2 years of imprisonment and a fine or both. |
| Example | If a housekeeper in an office mops the slippery floor and does not put up a ‘Wet Floor Sign’, any accident that occurs would amount to ‘Civil Negligence’ as there was only a lack of due diligence on the part of the housekeeper but not extreme neglect | If someone drives a vehicle under the influence of drugs and alcohol and caused the death of an individual, it would amount to ‘Criminal Negligence’ since this is considered extreme carelessness on their part. |
Conclusion
In the law of torts, the concept of ‘Negligence’ has evolved from English Law and accepted by Indian Law as a substantially important tort. Negligence as a tort is the breach of duty of care that is owed to another person. The conduct of a person shows carelessness or omission in exercising his/her duty. In this article as discussed, ‘Negligence’ is of two types, ‘Civil’ and ‘Criminal’ and each has repercussions. In order to prove that the act was negligent, it is necessary to prove all the essentials of the act.
When the negligent act cannot be explained, the Court uses the Maxim ‘Res Ipsa Loquitur’ as a Latin phrase that means the thing speaks for itself, where the evidence is itself sufficient to prove the guilt of the defendant. Maxim points out any circumstantial evidence or an object that itself shows that an act has been committed. It shows that if the defendant was not negligent, the accident would not have happened. And also stated, defences can be used in a suit by the defendant to defend himself from the suit being issued by the plaintiff.
References
[1] Blyth v Birmingham Water Works, Co., (1856) LR 11 EXCH. 781
[2] Lochgelly Iron & Coal Co.,v MC Mullan 1934 AC 1
[3] Grant v Australian Knitting Mills Ltd., 1935 AC 85
[4] Donogue v Stevenson (1932) A.C 562 (1932) ukhl 100, 1932 S.C (H.C) 31, 1932 S.L.T 317 (1932) W.N.139
[5] Municipal Corporation of Delhi v Subhagwanti AIR 1966 SC 1750
[6] Palsgraf v Long Island Railroad Co., 248 N.Y 339 (N.Y. 1928)
[7] Joseph v Dr George Moonjely (1994)
[8] Shelton v L & W Railway (1946)
[9] Nichole v Marshland (1876) 2 EXDI
[10] Stanley v Powell 7 L.T.R 25
[11] .Holmes v Mathur (1875) LR 10 EX. 261, 267
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