NEGLIGENCE

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INTRODUCTION
It is already known that 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 principles of justice, equity and good conscience. The term Negligence
is derived from the Latin word ‘negligentia’ which means ‘failing to pick up’.
In the general sense, the term negligence means the act of being careless and in the
legal sense, it signifies the failure to exercise a standard of care which the doer as a
reasonable man should have exercised in a particular situation. Negligence in
English law emerged as an independent cause of action only in the 18th century.
Similarly, in Indian law, the IPC, 1860 contained no provision for causing the
death of a person by negligence which was subsequently amended in the year 1870
by inserting section 304A.
DEFINITION OF NEGLIGENCE
According to Winfield and Jolowicz, Negligence is the breach of a legal duty of care by the
plaintiff which results in undesired damage to the plaintiff.
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 means the act of failure to do something which a person should have done. For
example, failure to carry out the repairs of an old building when it should have been done.
Misfeasance: It means the act of not doing an action properly when it should have been done
properly. For example, Doing the repairs of an old building but doing so by using very poor-
quality materials creating a major probability of a collapse which injures people.
Malfeasance: It means the act of doing something which should not have been done in the first
place itself. For example, using products that are not allowed and combustible to carry out the
repairs of an old building, therefore, converting the building into a firetrap leading to an accident.
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- It is one of the essential conditions of negligence in order to make the person
liable. It means that every person owes, a duty of care, to another person while performing an act.
Although this duty exists in all acts, but in negligence, the duty is legal in nature and cannot be
illegal or unlawful and also cannot be of moral, ethical or religious nature.

In the case of Stansbele vs Troman(1948), A decorator was engaged to carry out decorations in
a house. Soon after the decorator left the house without locking the doors or informing anyone.
During his absence, a thief entered the house and stole some property the value of which the
owner of the house claimed from the decorator. It was held that the decorator was liable as he
was negligent in leaving the house open and failed his duty of care.
CONTD.
2)The Duty must be towards the plaintiff- A duty arises when the law recognizes a relationship
between the defendant and the plaintiff and requires the defendant to act in a certain manner
toward the plaintiff. It is not sufficient that the defendant owed a duty of care towards the
plaintiff but it must also be established which is usually determined by the judge.

In the case of Bourhill v. Young (1943) the plaintiff who was a fishwife got down from a tram
car and while she was being helped in putting her basket on her back, a motor-cyclist after
passing the tram collided with a motor car at a distance of 15 yards which was on the other side
of the tram. The motorcyclist died instantly and the plaintiff could not witness the accident or the
dead body since the tram was standing between her and the place where the accident occurred.
She had only heard the sound of the collision and once the body had been removed from the
place of accident, she visited the place and saw some blood which was left on the road. As a
reaction to this incident, she suffered a nervous shock and gave birth to a still-born child of 8
months because of which she sued the representatives of the deceased motorcyclist. It was held
that the deceased had no duty of care towards the litigant and therefore she could not claim any
damages from the deceased’s representatives.
CONTD.
The case of Donoghue v. Stevenson (1932) has evolved the principle that we each have a duty of
care to our neighbor or someone we could reasonably expect to be affected by our acts or
omissions. It was held that, despite no contract existed between the manufacturer and the person
suffering the damage an action for negligence could succeed since the plaintiff was successful in
her claim that she was entitled to a duty of care even though the defective good i.e. a bottle of
ginger beer with a snail in it was bought, not by herself, but by her friend.

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 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 said in the case
of Blyth v. Birmingham Waterworks Co, (1856). In simple terms, it means non-observance of
a standard of care.
CONTD .
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.

In the case of 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.
CONTD.
4)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.

5)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
CONTD.
In the case of Palsgraf vs Long Island Railroad Co(1928), 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.
CONTD.
6) Consequential harm 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 cases :- Bodily harm, Harm to the reputation, Harm to
property, Financial Loss, 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
without following proper medical procedures and not even administering local anesthesia.
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.
CONTD.
Thus, the following are the three essential requirements for the application of this
maxim-

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.

RAVI KAPUR V. STATE OF RAJASTHAN, 2012
In the very famous case of Ravi Kapur v. State of Rajasthan the principle/doctrine of res
ipsa loquitur was discussed in detail. This is the case of an appeal against the judgment
of the High Court of Jaipur Bench. The facts of the case were as follows:
“Sukhdeep Singh was going to attend the marriage of his brother along with his family.
They were going in two jeeps and a Maruti car. On their way, they met with an accident
with a bus that was coming from the opposite direction at a very high speed. Due to this
eight-person died on the spot. According to one of the witnesses, the bus was driven by
the accused Ravi Kapur and after the accident, he ran away from the spot. The trial court
held that the prosecution was not able to prove the liability of Ravi Kapur and hence he
was acquitted by the trial court. However, the decision of the High Court comes against
the trial court and its decision was backed by the reasoning which includes the principle
of res ipsa loquitur, negligence, reasonable care.”
CONTD.
The principle of res ipsa loquitur serves two purposes –
it establishes the negligence on the part of the accused party and
secondly, it is applied in the cases where the claimant is able to prove that there
is an accident but is not able to prove how the accident occurred.
The High Court by applying the principle of res ipsa loquitur found Ravi Kapur
liable under Section 304A of the IPC. The same case when went to the Supreme
Court the court held that the decision of the High Court was right and the
appellant was held liable ultimately.
DEFENSES AVAILABLE IN A SUIT FOR NEGLIGENCE
1) Contributory negligence by the plaintiff- Contributory negligence means that 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 defense. This is because the
plaintiff in such a case is considered to be the author of his own wrong. It is based on the
maxim volenti non fit iniuria 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.

The plaintiff is not entitled to recover from the defendant if it is proved that-

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
CONTD.
3)There has been as much want of reasonable care on the plaintiff’s part as on the defendant’s
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

In the case of Shelton Vs L & W Railway(1946), while the plaintiff was crossing a railway line,
a servant of the railway company 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.
CONTD.
2) An Act of God- An Act of God is a direct, violent and sudden act of nature which by any
amount of human foresight could have been foreseen and if foreseen could not by any amount of
human care and skill have been resisted. Thus, such acts which are caused by the basic forces of
nature come under this category. For example, storm, tempest, extraordinary hightide,
extraordinary rainfall etc.

If the cause of injury or death of a person is due to the happening of a natural disaster, then the
defendant will not be liable for the same provided that he proves the same in the court of law.
This particular defense was talked in the case of Nichols v. Marsland (1876) in which the
defendant had a series of artificial lakes on his land. There had been no negligence on the part of
the defendant in the construction and maintenance of the artificial lakes. Due to unpredictable
heavy rain, some of the reservoirs burst and swept away four country bridges. It was held by the
court that the defendant could not be said to be liable since the water escaped by the act of God.
CONTD.
3) Inevitable Accident- An inevitable accident can also be called as a defense of
negligence and refers to an accident that had no chance of being prevented by the
exercise of ordinary care, caution, and skill. It means a physically unavoidable
accident.

In the case of Brown v. Kendal (1850) the plaintiff’s and defendant dogs were
fighting and their owners attempted to separate them. In an effort to do so,
Defendant beat the dogs with a stick and accidentally injured the Plaintiff,
severely injuring him in the eye. The Plaintiff brought suit against the Defendant
for assault and battery. It was held that the injury of the plaintiff was as a result
of an inevitable accident.
CONCLUSION
Negligence as a tort has evolved from the English law and accepted by the Indian law as
a substantially important tort. As discussed, negligence is of two types, civil and criminal
and each has various repercussions. In order to prove that an act was negligent, it is
necessary to prove all the essentials namely duty, breach of duty, damages and actual and
proximate cause. An important maxim regarding negligence i.e. Res Ipsa Loquitur is
used by the courts when a negligent act cannot be explained. Also, the defenses in a suit
for negligence can be used by the defendant to defend himself from a suit issued by the
plaintiff.

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.