Negligence

ANKIT SHRIVASTAVA
Introduction
NEGLIGENCE (Lat. negligentia, from neglegere, to neglect, literally "not to pick up something")
is a failure to exercise the care that a reasonably prudent person would exercise in like
circumstances
The area of tort law known as negligence involves harm caused by carelessness, not intentional
harm.
Negligence is the breach of a legal duty to take care which results in damage, undesired by the
defendant to the plaintiff -Winfield and Jolowicz
Fletcher v Rylands
"those who go personally or bring property where they know that they or it may come into
collision with the persons or property of others have by law a duty cast upon them to use
reasonable care and skill to avoid such a collision."
ESSENTIALS OF NEGLIGENCE
Duty of Care
Breach
Causation and
Pecuniary damages
DUTY OF CARE
DUTY TO TAKE CARE - One of the essential conditions of liability for negligence is that the
defendant owed a legal duty towards the plaintiff.
In Grant v. Australian Knitting Mills Ltd., 1935 AC 85; the plaintiff purchased two sets of woolen
underwear from a retailer and contacted a skin disease by wearing an underwear. The woolen
underwear contained an excess of sulphates which the manufacturers negligently failed to remove
while washing them. The manufacturers were held liable as they failed to perform their duty to
take care.
Foreseeability and Proximity-What is
Fair, Just and reasonable?
Duty depends on reasonable foreseeability of injury
Whether a defendant owes a duty to a plaintiff depends on the extent to which he reasonably
knew that an injury would occur.
If a defendant can not reasonably foresee an injury to a plaintiff, he has a duty to prevent it. if he
fails to do so he is made liable
duty to take care is a duty that a person has to avoid doing or neglecting anything that may have a
reasonable and probable consequence for others.
if the duty is not observed one useful test is to enquire how obvious the risk must have been to an
ordinary prudent man
There is no liability when the injury is not foreseeable
Ryan vs young
The servant of the defendant was driving a lorry and while driving the said lorry he suddenly
died, which resulted in an accident and an injury to the plaintiff. To the defendant, the driver
appeared healthy and he could not foresee the sudden death of the driver which led to the
plaintiff's injury. In this case, it was held that the accident was due to an act of God and that the
defendant was not liable for negligence.
Reasonable foreseeability does not mean remote possibility
To prove that there has been negligence it is not just enough to prove that there has been an injury
but to prove that there was a reasonable likelihood of the injury to occur
Foreseeability does not include any idea of likelihood at all
DUTY TO WHOM: Donoghue v. Stevenson, 1932 AC 562 carried the idea further and expanded
the scope of duty saying that the duty so raised extends to your neighbour. Explaining so as to
who is my neighbour LORD ATKIN said that the answer must be “the persons who are so closely
and directly affected by my act that I ought reasonably to have them in contemplation as being so
affected when I am directing my mind to the acts or omissions which are called in question”.
BREACH OF DUTY TO TAKE CARE
Yet another essential condition for the liability in negligence is that the plaintiff must prove that
the defendant committed a breach of duty to take care or he failed to perform that duty.
In Municipal Corporation of Delhi v. Subhagwanti, AIR 1966 SC 1750; a clock-tower in the heart
of the Chandni Chowk, Delhi collapsed causing the death of a number of persons. The structure
was 80 years old whereas its normal life was 40-45 years. The Municipal Corporation of Dellhi
having the control of the structure failed to take care and was therefore, liable.
Standard of Care is required
•The law does not expect the greatest possible care but it requires care of, that a reasonable man
under certain circumstances would take
•The law allows some chance of risk under public interest so that it continues
•A balance has to be measured between the importance and usefulness of risk created
•For example, the speed of an ambulance and the same speed for a car may be negligent for one
but not the other
 In Municipal Corporation of Delhi v. Sushila Devi, AIR 1999 SC
1929; a person passing by the road died because of fall of branch of a
tree standing on the road, on his head. The Municipal Corporation
was held liable.
Cause
Actual cause or cause in fact
In this scenario, the plaintiff who is suing the defendant for negligence has the
liability to prove is that the defendant’s violation of duty was the actual cause of
the damages incurred by him.
This is often called the “but-for” causation which means that, but for the
defendant’s actions, the plaintiff would not have incurred the damages.
For example, When a bus strikes a car, the bus driver’s actions are the actual
cause of the accident.
Proximate Cause
Proximate cause means “legal cause,” or the cause that the law recognizes as the
primary cause of the injury. It may not be the first event that set in motion a
sequence of events that led to an injury, and it may not be the very last event
before the injury occurs.
Instead, it is an action that produced foreseeable consequences without
intervention from anyone else. A defendant in a negligence case is only
responsible for those damages that the defendant could have foreseen through his
actions.
 Palsgraf vs Long Island Railroad Co(1928),
In this case of A man was hurrying while trying to catch a train and was carrying a packed
item with him. The employees of the railway saw the man who was attempting to board the
train and thought that he was struggling to do so. An employee on the rail car attempted to
pull him inside the train while the other employee who was on the platform attempted to push
him to board the train. Due to the actions of the employees, the man dropped the package.
Which had contained fireworks, and exploded when it hit the rails. Due to the explosion, the
scales fell from the opposite end of the station and hit another passenger, Ms. Palsgraf, who
then sued the railway company. The court held that Ms. Palsgraf was not entitled to damages
because the relationship between the action of the employees and the injuries caused to him
were not direct enough. Any prudent person who was in the position of the railway employee
could not have been expected to know that the package contained fireworks and that
attempting to assist the man the railcar would trigger the chain of events which lead to Ms.
Palsgraf’s injuries.
DAMAGES
It is necessary that the breach of duty by the defendant must cause damage to the plaintiff
It has to be shown by the plaintiff that the damage caused is not to remote a consequence of the
defendant's negligence.
In the cases in which the plaintiff claims damage the responsibility is on the plaintiff to prove all
details of the damage in cases like these the facts that help the court determine the amount of
damages required are held relevant.
Assessing of damages duty is on the court, and to do so the court shifts to rules and regulation and
the practices of the courts. The court rules and concludes every question that would permit the
parties to gain final judgement as a proper measure of damages was applied remoteness of
damage and the amount which is entitled to the plaintiff.
Proving that the defendant failed to exercise reasonable care is not enough.
It should also be proved that the failure of the defendant to exercise
reasonable care resulted in damages to the plaintiff to whom the defendant
owed a duty 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.
 Doctrine of Res ipsa loquitur
Res ipsa loquitur is a Latin phrase that means “the thing speaks for itself.”
It is considered to be a type of circumstantial evidence which permits the court to determine that the
negligence of the defendant led to an unusual event that subsequently caused injury to the plaintiff.
Although generally the duty to prove that the defendant acted negligently lies upon the plaintiff but
through res ipsa loquitur, if the plaintiff presents certain circumstantial facts, it becomes the burden of
the defendant to prove that he was not negligent.
This doctrine arose out of the case of Byrne vs Boadle(1863)
The plaintiff was walking by a warehouse on the road and suffered injuries
from a falling barrel of flour which rolled out of a window from the second
floor. At the trial, the plaintiff’s attorney argued that the facts spoke for
themselves and demonstrated the warehouse’s negligence since no other
explanation could account for the cause of the plaintiff’s injuries.
Three essentials for application of the
Doctrine
1)The thing causing the damage must be under the control of the defendant
or his servants
2)The accident must be such as would not have happened in the ordinary
course of things without negligence.
3)There must be no evidence of the actual cause of the accident.
Defences in case of Negligence
1)Contributory negligence by the plaintiff
1)The plaintiff by the exercise of ordinary care could have avoided the
consequence of the defendant’s negligence.
2)The defendant could not have avoided the consequence of the plaintiff’s
negligence by an exercise of ordinary care
3)There has been as much want of reasonable care on the plaintiffs part as on the
defendants part and the former cannot sue the latter for the same.
The burden of proving contributory negligence rests on the defendant in the
first instance and in the absence of such evidence, the plaintiff is not bound to
prove its non-existence
2) An Act of God
3) Inevitable Accident
Thank You