NEGLIGENCE

Subjective Objective
Winfield –
“Negligence as a (state of mind) ( kind of conduct)
tort is the breach Mental attitude of
Cause of action – Occurrence of Breach of duty to
of a legal duty to undue indifference
unreasonable damage is starting Theories of take care
take care which of one’s conduct+
conduct followed point of cause of Negligence Most approved
results in damage consequences
by harm /damage action theory
undesired by
Supported by –
defendant to the Supported by-
SALMOND &
plaintiff” POLLOCK
WINFIELD
In VAUGHAN Vs MENLLOVE –
“The care taken by the prudent
man has always been the rule
laid down in the cases of
Negligence
Grounds for negligence
• In the case of Kishore Lal Vs Chairman Vs ESI Corp held –Grounds for
Negligence
i. Existence of duty to take care
ii. Failure to maintain that standard of care
iii. Damage suffered on account of breach of duty
1. Duty to take care
• i.e. Restriction on defendants freedom of conduct – behave in a reasonable
manner – as reasonable man would behave in like circumstances
• Case- DONOGHUE Vs STEVENSON
• Lord Atkin – Principle of neighbourhood –helps to decide if duty of care
exists.
• Lord Reid observed “Donoghue Vs Stevenson may be regarded as a
milestone & observations of Lord Atkin as a statement of Principle”
• Case – GRANT Vs AUSTRALIAN KNITTING MILLS LTD
• Case – RAMESH KUMAR NAYAK Vs UNION OF INDIA
• Case – ARUN Vs UNION OF INDIA
2.Duty towards Plaintiff
• Essential condition
• Duty to take care is not in air but towards particular people
• Plaintiff has to prove it –i.e. to use care which reasonable man in position of defendant
would use to avoid causing harm to plaintiff
• If fails –action also fails
• 2 conditions –
i. Risk was foreseeable by defendant- deft liable
ii. Certain cases no legal duty to take care recognised by law,even if harm forseen
-deft not liable

• Case – Makbool Ahmed Vs Bhuralal( bus conductor)

Negligence by jail authorities

Duty of state
Trimbak Sonwane Vs State of
Maharashtra (42 days after
acquittal)
Degree of care
• Varies according to obviousness of risk & situation – some one
crossing
• Balance between risk involved & consequences of not taking it( bus
driver)
• Case – Cates Vs Mongini ( ceiling fan)
• - Bishwa Nath Gupta Vs Munna ( road crossing)
• Specialist – higher degree of skill , higher than ordinary layman
When does Duty to take care arise ?

As soon as there is
reasonable probability of
danger from conduct of
defendant
3. Breach of Duty to take care
• Necessary to prove
• Lord Dunedin “breach of duty means that the thing which defendant did not do was
a thing which was commonly done by reasonable person in like circumstances”(case
– Morton Vs William Dexon)
• Rule – man should exercise degree of care which ordinary prudent man would have
taken
• EXCEPTIONS –
a. Highly skilled person
b. Price charged
Cases – T.T. Thomas Vs Elisa( emergency operation)
State of J&K Vs Altaf Ahmad Gani( live electric wires)
4. Damage to Plaintiff
• Apart from negligence – Plaintiff also show – as result of negligent act
– he suffered damage
• Damage –direct consequence of negligent act
• Damages are awarded to compensate plaintiff for damage caused to
him & place him in similar position if injury not sustained
• Case – National Small Industries Vs Bishambar Nath (damage by fire)
• -Temulji Vs Bombay Tramway Co (board running tramcar)
• BURDEN OF PROFF – ON PLAINTIFF
Doctrine of Res ipsa loquitur
• Exception to the rule – plaintiff has to prove the negligence
• In some situations defendant has to disapprove negligence on his part
• Doctrine –The thing speaks for itself
• Applicable in situations where happening of accident is improbable without
negligence of defendant / his servant who were in control of cause of mischief
• Case – Scott Vs London Dock Co ( Custom Officer)
• -Byrne Vs Boadle ( barrel of flour)
• Doctrine is based on theory – there are certain happenings which do not
occur normally unless there is negligence – here- BOP- on Defendant to show
accident occurred without any fault of his.
Limitations on doctrine of Res ipsa loquitur
1. Rule is not applicable in all cases of accidents / mishaps . Applies only
when the cause of accident was solely within the knowledge / control of
defendant / his servant
2. It is not a presumption of law but is a rule of evidence which can be
rebutted by defendant
3. Rebuttal of negligence by defendant does not absolve liability of
defendant – as Plaintiff can still choose to prove negligence of Defendant
and succeed
4. When this maxim applies ,Plaintiff just has to prove occurrence of accident
/ mishap , then defendant has to prove that he was not negligent i.e. he
exercised due care but inspite of that accident occurred
Defences
1) Vis Major
Case – Nicholas Vs Marsland
2 )Contributory Negligence
• The harm suffered by Plaintiff is not solely due to negligence of
Defendant but also due to his own negligence
• i.e. law considers Plaintiff as the author of his own wrong
• Volenti non fit injuria
• Case – Butterfield Vs Forester ( pole across highway)
• - Hansraj Vs Tram co (loose footboard)
Contributory Negligence is no exception -
a) Defendant had later opportunity of avoiding accident than the Plaintiff
by using reasonable care Case – Davis
Vs Mann
b) Doctrine of alternative danger The
dangerous situation was created by Defendant and
inorder to either save himself or 3rd person –Plff injured
Case – Jones Vs Boyce ( coach overturning) case
– Brandon Vs Osborne Garrett Company( broken roof glass) Choice of
evil - case – Ridley Vs Mobile Rly Co.( no whistle)
c) Doctrine not applicable to children Case
– Glasglow Corp. Vs Taylor ( poisonous berries)
• It is to be noted that the LAW REFORM ( CONTRIBUTORY NEGLIGENCE) ACT 1945 – provides
that where any person suffers damage as result partly of his own fault ( contributory
negligence) and partly of any person – a claim to damages shall not be affected due to
contributory negligence – but the damages recoverable shall be reduced to such an extent
as the court thinks just & equitable having regard to claimants responsibility for the damage
i.e. court can now apportion the damages between the parties.
• Case – Jones Vs Quarries ltd ( riding tow bar) his negligence was assessed at 1/5 th and hence
paid 4/5th portion as damages
• In India we do not have similar law but courts have applied the above principle by using
their discretionary power under the rule of Equity, Justice & Good Conscience .
• In the case of Union of India Vs Mr. Lalman Badri Prasad – Justice Krishnan observed – the
rule of all or nothing which completely deprives the plaintiff of his claim to damages in the
event of his slightest involvement in the defendants wrong doing was absurd and most
irrational . The law of Equity, Justice & Good Conscience demands that the damage should
be apportioned in such cases & quantum of plaintiff’s claim for damages may be reduced in
proportion to his fault . It will ensure Justice to BOTH the Plaintiff & the defendant.
• THIS IS CALLED THE DOCTRINE OF APPORTIONMENT
• CASE- Manjit Kaur Vs Gurmail Singh
• A truck collided with a scooter causing death of pillion rider .
• Court settled amount of compensation at Rs 48,000/- but since
contributory negligence of scooter driver was to extent of 75% , wife
of the deceased pillion rider was given Rs.12,000/- as compensation
Doctrine of Identification
• When a child is in actual custody of an adult at the time of the accident , the
contributory negligence of the adult will disentitle the child from recovering
damages because the child has been identified with the adult & his
negligence will amount to negligence of the child
• This is the Doctrine of Identification
• But this doctrine was overruled in case of – MILLS Vs ARMSTRONG &
FINALLY TOTALLY DISCARDED IN CASE OF –OLIVER Vs BIRMINGHOM
OMNIBUS Co.( accident due to contributory negligence of driver and grand
father and thus injury to child – held – the doctrine of identification of the
child with the Adult was no longer a good law.
3. INEVITABLE ACCIDENT
• That which could not be avoided by ordinary care , caution & skill
• People must guard against reasonable probabilities but they’r not
bound to guard against fantastic possibilities
• Case – Holmes Vs Mather