UNIT- III

NEGLIGENCE
 Basic Concepts of Negligence: Meaning and Definition of Negligence-Essentials of
Negligence: Standard of Care-Duty to Take Care-Breach of Duty, Damage
 Burden of Proof: Doctrine of Contributory Negligence-Res Ipsa Loquitur-Nervous
Shock and Psychiatric Suffering
 Professional Liability Due to Negligence: Liability of Manufacturers & Business
Houses.
 NEGLIGENCE

Introduction

In everyday usage, negligence denotes carelessness but in its legal interpretation the word
carries two senses in the law of tort. It may mean-

i. A mental element: It is the state of mind of a party in doing an act and in this
sense, negligence means blameworthy inadvertence or carelessness in the
consequences of one’s conduct.
ii. A conduct (an Independent tort): Besides being a mental element, negligence itself
has become an independent specific tort which implies ‘a breach of duty to take
care’. Negligence has been recognized as independent tort by House of Lords in
the case of Donoghue vs. Stevenson (1932).

Definition of negligence

According to Winfield, ‘Negligence as a tort is the breach of a legal duty to the care which
results in damage, undesired by the defendant, to the plaintiff’.

According to Charlesworth & Percy, ‘Negligence is a tort which involves a person’s breach
of duty, that is imposed upon him to take care, resulting in damage to the complainant’.

In Jacob Mathew vs. State of Punjab (2005), the SC observed that, the jurisprudential concept
of negligence defies any precise definition. In current forensic speech, negligence has three
meanings which are-

 A state of mind which is opposed to intention;

To determine whether a particular driver has been negligent in driving or whether a doctor
has been negligent in performing a particular operation, test of an external standard of a
reasonable man placed in similar circumstances would be applied.

Essential ingredients of negligence

i. Duty to take care: the defendant was under a legal duty to take reasonable care to
avoid any kind of damage.
ii. Breach of the said duty: If the duty to take care exist then there must be breach
of that duty.
iii. The damage: It is also necessary that the defendant’s breach of duty must cause
damage to the plaintiff.

Duty to take care

There can be no negligence unless there is in the particular case a duty to take care. The law
takes no cognizance of carelessness in the abstract. There must be a legal duty rather than a
mere moral, religious or social duty.

In Donoghue vs. Stevenson (1932), Lord Atkin laid down a very important principle of
determining a duty. In this case, the defendant, a manufacturer of ginger beer, had sold to a
retailer a sealed and opaque bottle of beer. The retailer sold it to A, who had given it to his
friend Miss Donoghue. She drank the ginger beer. The bottle contained the decomposed
remains of a snail. As a result she became seriously ill and sued the manufacturer for
negligence. In the instant case, the manufacturer was held liable and the following
propositions was laid down which says that, in law, you must not injure your neigbour i.e.
you must take reasonable care to avoid acts or omission which you can reasonably foresee
would be likely to injure your neighbor and my neigbours are those persons who are closely
and may directly affected by my act. (doctrine of proximity)

If the defendant owes no duty of care to the plaintiff, the plaintiff cannot take any action
against the defendant, even though injury had been caused to him by the act of the defendant
in particular. In Bourhill vs. Young (1942), the plaintiff, a fisherwoman, was a passenger in a
tramcar. While she was lifting the basket, a motor cyclist passed from the other side and
collided with a motor car. The fisherwoman saw nothing of the motor cyclist or the accident
as she was 50 feet away from tramcar but simply heard noise. After the cyclist body had been
removed, she saw the blood left on the roadway. As a consequence, she sustained nervous
shock and after one month gave birth to a still born child. The plaintiff brought an action
against the owner of motor cyclist. It was held that the defendant was not held liable because
the motor cyclist did not owe any duty of care towards the fisherwoman and was not
negligent towards her.

In King vs. Philips (1953), the defendant a taxi driver, carelessly backed his taxy into a small
boy on a tricycle. His mother heard his screams and saw the tricycle under the taxi. She
suffered nervous shock. It was held that though the defendant was negligent vis-à-vis the boy,
he owed no duty to the mother and therefore not liable to her.

Thus there must be proximity in relationship i.e. parties are so related to each other that it is
just and reasonable that the duty shall exist.

In Municipal Corporation of Delhi vs. Subhangwati (1966), a clock tower situated in the
heart of the city i.e. Chandni Chowk, collapsed causing the death of a number of persons. The
structure was 80 years old whereas its normal life was 40-45 years. Here, it was held that
MCD failed to get the periodical check.

Thus, the defendant is responsible for his own acts and where the plaintiff suffers from the
act of a third person which the defendant could not foresee, he will not be liable. But where
the defendant could have reasonably foreseen the intervening act of a third person, he will be
responsible for the damage caused thereby. For example, if the driver left the keys in the jeep
and if someone drove the jeep and caused an accident, the driver shall be liable.

If the possibility of danger emerging in 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. People must guard against reasonable probabilities and are not bound to guard
against fantastic possibilities.

In the case of Bolton vs. Stone (1951), a batsman hit a ball and the ball went over a fence
seven feet high and seventeen feet high above the pitch and injured the plaintiff on the
adjoining highway. In the last 30Y the ball had gone to highway on six occasions but no one
had been injured. House of Lords held that there was no liability even on the basis of
negligence as even the likely risk created was not substantial.
Breach of the said duty (Principle of reasonable care)

Negligence is nothing but the breach of a duty to take care. The plaintiff is not only required
to show that the defendant owed a duty of care towards him but he has also to prove that the
defendant committed a breach of such duty and it is the standard of reasonable man with the
reference to which the breach of duty may be decided. It is to be noted that degree of care
varies with the situation. For instance, a driver of a motor car requires greater skill and care
than the driver of a horse carriage. Thus, the test of negligence is same in all the cases i.e.
whether the defendant used reasonable care in the circumstances or not.

In Fardon vs. Harcourt Ravington (1932), the defendant parked his car by the roadside
leaving his dog inside it. The dog jumped out and broke one of the window glass, a splinter of
which fell upon a passerby and injured him. When sued for negligence, the court has held that
there being no breach of duty to take care, the defendant was not liable. No doubt, the
defendant owed a duty to guard against reasonable probabilities but he was not bound to
guard against ‘fantastic possibilities’.

The law does not require greatest possible care but the care is that of a reasonable man under
certain circumstances. The law permits taking chance of some measure of risk so that in the
public interest various kinds of activities should go on. In Latimer vs. AEC Ltd. (1953), due
to heavy rain, a factory was flooded with water which got mixed with some oily substance.
After the water drained away, the floors in the factory became slippery as the oily film was
left over it. The factory owner spread all the available sawdust but some oily patches still
remained there. The plaintiff slipped from one of those patches and was injured. It was held
that since defendant had done all he could reasonably be expected and although if he had
closed the factory, this must have prevented the accident but reasonable prudence did not
demand this, so the defendant is not liable.

Degree of precautions also depends upon the utility of the activity of the defendant. In K.
Nagireddy vs. Government of AP (1982), the plaintiff had an orchard consisting of 285 fruit
bearing trees. The state government constructed a canal for irrigation purpose without
cementing the floors and banks of the canal. Due to the absorption of excess water from that
canal, all the trees died. It was held that not cementing of the floors was no negligence on the
part of the state government as laying of canals for irrigation purposes was a great necessity.
In Yachuk vs. Oliver Blais Co. (1949), an employee of the petrol pump supplied petrol to
the appellant, a boy of 9Y, on being told by the boy that he wanted this petrol for his
mother’s car which has struck down on road for want of petrol. In fact, the boy was taking the
petrol for a game of Red Indians and during the game the petrol ignited and injured the
plaintiff. The defendant was held liable for the negligence of his employee working at the
petrol pump who supplied a highly inflammable thing like petrol to a small boy. In doing so,
his conduct was not like that of a reasonable man who would have certainly refused to supply
petrol to such a small boy.

If a man is confronted with a dangerous situation not of his own making and there are several
courses open to him and he is required to make a quick judgment, the failure to exercise the
best possible judgment would not of itself constitute negligence. In Indian Airlines vs.
Madhuri Chowdhary (1965), a tragic air crash occurred at Nagpur when an aeroplane
crashed immediately after it started flying from Nagpur to madras. The heirs and legal
representatives of the deceased person filed suit for damages against the Indian Air lines
corporations. The court observed that in case of sudden emergency, a pilot is not required to
exercise that degree of skill which would be required by a calm review of facts long after the
accident had occurred.

Damages

It is not enough for the plaintiff to prove that the defendant’s conduct has been negligent, he
must also prove that actual damage has resulted to him in consequence. Actual damage is one
of the essential conditions of liability in negligence. Plaintiff must also prove that the
negligent act of the defendant is ‘the direct and proximate cause’ of the damge. Defendant
may also be liable if damage complained was foreseeable by the defendant as a reasonable
man. It is a good defence for the defendant if he can show that the damage is due to the
‘contributory negligence’ of the plaintiff. For example, if A and B drive their cars rashly and
without lights in a dark night in opposite directions and collide, none can recover damages
from the other.
Res Ipsa loquitor

Introduction

The general rule is that in an action for negligence the burden of proof is on the plaintiff.
However, there are certain situations where the doctrine of res ipsa loquitor applies wherein
the mere happening of the accident raises an inference that the defendant has been negligent.
This maxim is a rule of evidence departing from the normal rule that it is for the plaintiff to
prove negligence.

Essential conditions

i. The thing which caused damage or harm was under the exclusive management
and control of the defendant.
ii. While in the defendant’s control, an accident or event could not have happened
without the negligence of the defendant;
iii. That the defendant does not have or fails to give a satisfactory explanation for
mishap. Sometimes a thing tells its own story but that is not the whole story. The
maxim will not apply if the defendant can explain the happening of the accident so
as to rebut the presumption of negligence on his part.

Thus, the maxim infuses a notion of strict liability in the field of law relating to negligence.

Municipal Corporation of Delhi vs. Subhangwati (1966)

It was found that the clock tower in Delhi, which collapsed causing loss of life, was
exclusively under the control and ownership of the Municipal Corporation.

PA Nararayanan vs. Union of India (1998)

In this case, a woman passenger in a running train was robbed, raped and murdered. Though,
she managed to pull the alarm chain, the train did not stop. The railway was held liable for
total dereliction of duty. The standard of care is high and strict.

Limitations of the doctrine of Res Ipsa Loquitor

i. Rule has no application in all the cases of accidents or mishap. It is applied only
when the cause of mishap solely lies within the knowledge of the defendant or it is
under the control of the defendant or his employees.
 ii. 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. Thus, for the application of
this maxim, res must not only speak of negligence but pin it on the defendant.

Medical Negligence

Introduction: The doctor must bring to his task a reasonable degree of skill and knowledge
and must exercise a reasonable care. A doctor can be held liable for his negligence on either
of two findings-

i. He did not possess the skill which was prerequisite for the treatment or
ii. He did not exercise with reasonable competence the skill which he possessed.

Achutrao Khodwa vs. State of Maharashtra (1996)

A towel was left inside a woman’s peritoneal cavity while she was operated upon for
sterlisation in a government hospital.

Jacob Mathew vs. State of Punjab (2005)

Due inavailability of oxygen, patient died. Question arose as whetehr doctors could be made
liable for criminal negligence. For criminal negligence, the negligence has to be of a very
high degree.

Recent Gorkhpur tragedy

Shalimar Bag Max Hospital, when they declared child dead when he was alive.

Nervous Shock

If a person has got injury through his sense, it comes under the category of nervous shock. It
may be caused either by acts or words of the defendant. It may be induced by some accident
due to the defendant’s negligence or on account of a false statement willfully made or due to
intimidation.

Wilkinson vs. Downton (1897)

The defendant frightened the plaintiff with false news that her husband met with a serious
accident resulting in both his legs being broken and was lying in a hospital. After hearing
this, the plaintiff suffered a nervous shock which caused very serious and permanent physical
damage to the plaintiff. The defendant was held liable.

Bourhill vs. Young (1943)

The question of psychiatric illness liability came before the House of Lords for the first time.
In this case, a pregnant fisher-woman had alighted from a tram and was unloading her fish
basket from the off-side of the driver’s platform. At about the same time, a motor cyclist
passed the tram on the other side and ran into a motor car and sustained injuries resulting in
his death. The plaintiff lady heard the noise of the collision occur some distance away. She
later attended the scene of the accident after the cyclist’s body had been removed and saw
blood on the road. She suffered severe nervous shock as a result of which she had miscarriage
and gave birth to a still born child. The House of Lord rejected her claim and held that she
was not a ‘foreseeable claimant’.

King vs. Phillip (1953)

In this case, a taxi driver negligently backed the taxi which ran into a small boy on a tricycle.
There was no injury to the boy and his tricycle was slightly damaged but his mother heard his
scream. She suffered nervous shock and claimed damages. Applying the foreseeability test,
the court dismissed her claim and held that the driver could not have reasonably foreseen a
physical or mental injury to the mother who was far away from the road and watching the
boy from upstairs window about 80 yards away.