Negligence

Concept of negligence. Torts

1. NEGLIGENCE Under Torts Dr. Sonali J Gaikwad Assistant Professor DGB Dayanand Law College, Solapur B.A,LL.M, NET, SET, Ph.D.

2. NEGLIGENCE Negligence is one of the most common tort. In everyday usage, the word ‘negligence’ denotes mere carelessness. 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. In legal sense it signifies failure to exercise standard of care which the doer as a reasonable man should have exercised in the particular circumstances.

3. Meaning of Negligence Negligence as an independent tort. In this sense it means a conduct which causes damage without anything in mind. Thus it is a conduct rather than a state of mind. “Negligence as a mode of committing certain torts, is that, negligently or carelessly committing trespass or defamation. in this context it denotes the mental element.”

4. Definitions of Negligence According to Winfield and Jolowicz “Negligence is the breach of a legal duty to take care which results in damage, undesired by the defendant to the plaintiff .” Lord Wright states that “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 .” Clark and Lindsell in their book on tort says, “Negligence is the omission to take such care as under the circumstances it is the legal duty of a person to take. It is in no sense a positive idea and has nothing to do with a state of mind.”

5. Essential of N egligence In action for negligence the plaintiff has to prove three essentials to prove the liability of the defendant: A legal duty to take care B each of the said duty Damage to the plaintiff as a result of breach of duty

6. A legal duty to take 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. The plaintiff has to prove that the defendant owed duty of care to him. That duty must be a legal duty. A mere moral, religious or social duty is not considered in the law of negligence Case Laws in which Duty of Care was applied: Stansbele vs Troman ( 1948 ) Donoghue vs Stevenson (1932) Municipal Board, Jaunpur vs Brahm Kishor (1978) Union of India vs Supriya Ghosh

7. A legal duty to take care (Medical Services) The law requires a fair and reasonable standard of care and competency to by doctor towards his profession. In the case of Specialists a higher degree of skill and care is required Relevant Case Laws: I n P. Narsingha Rao vs G Jayaprakasu (1989) Joseph vs Jorge Munzela (1994 )

8. A legal duty to take care (Lega l Services) No legal practitioner who has acted or has agreed to act shall, by reason only of being a legal practitioner be exempted from liability to be sued in respect of any loss or injury due to any negligence in the conduct of his professional duties. While expounding the Indian law on the subject, the Supreme Court has sought reliance on several English judgments delivered by the House of Lords in England . Relevant Case Laws: Rondel v. Worsley (1976) M. Veerappa v. Evelyn Sequira (1988)

9. Breach of duty of care Breach of duty means non observance of due care which is required in particular situation . What standard of care is required? It is that of a reasonable man or an ordinary prudent man. For this following things are considered 1. Importance of the object to be attained, 2. The magnitude of the risk, 3. The amount of consideration for which services etc. are offered

10. Breach of duty of care Relevant Case Laws: Municipal Corporation of Delhi v. Subhagvanti (AIR 1966) Nirmala Thirunavakkarasu vs Tamil Nadu Electricity Board (1984) Ramesh Kumar Nayak vs Union of India(1994) State of Jammu and Kashmir vs Altaf Ahmad Gani ( 2004) M.P.S.E.B vs Jasbeer Singh ( 2004)

11. Damage The last essential requisite for the tort of negligence is that the damage caused to the plaintiff was the result of the breach of the duty. In an action for negligence the plaintiff must prove not merely that the defendant was negligent but also that there was actual damage and that the damage resulted to him in consequences of negligent act which was the direct and proximate cause of the damage. Thus , if the injury is not the direct and immediate consequences of the negligent act but is remote, the defendant will not be liable.

12. Defences of Negligence Contributory negligence Vis Major Inevitable Accident

13. 1. Contributory negligence Contributory negligence in common-law jurisdictions is mostly a defence to a claim based on negligence. When the plaintiff by his own want of care contributes to the damage caused by the negligence or wrongful conduct of the defendant, he is considered to be guilty of contributory negligence. This is a defence in which the defendant has to prove that the plaintiff failed to take reasonable care of his own safety and that was a contributing factor to the harm ultimately suffered by the plaintiff. Relevant Case Law: Butterfield v. Forrester (1809) Harris vs Toronto Transit Commission (1968) Yoginder Paul Chowdhury vs Durgadas (1972)

14. 2. Vis Major Act of God is such a direct, violent, sudden, and irresistible act of nature as could not, by any amount to human foresight have been foreseen or, if foreseen, could not by any amount of human care and skill, have been resisted. Thus , such acts as are occasioned by the elementary forces of nature, unconnected with the agency of men or other causes will come under the category of acts of God, for example, storm, tempest, lightning, extraordinary fall of rain, extraordinary high tides, extraordinary severe frost, etc . Relevant Case Law: Blyth v. Birmingham Water Works Co (1856) Nichols v. Marshland (1876)

15. 3 . Inevitable Accident An inevitable accident is one which could not have been possibly been avoided by the exercise of due care and caution. Charlesworth on Negligence, 4th Edn , in paragraph 1183 describes an ‘inevitable accident’ as follows :– “ There is no inevitable accident unless the defendant can prove that something happened over which he had no control and the effect of which could not have been avoided by the exercise of care and skill .’ Relevant Case Law: Brown vs Kendall ( 1850) Stanley vs Powell (1891) Fardon vs Harcourt (1932) National Coal Board vs Evans (1951)

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