Negligence Under Law Of Torts - Jetty Study

MEANING

the word ‘negligence’ denotes mere carelessness. In legal sense it signifies failure to exercise standard of care which the doer as a reasonable man should have exercised in the circumstances. In general, there is a legal duty to take care when it was reasonably foreseeable that failure to do so was likely to cause injury. Negligence is a mode in which many kinds of harms may be caused by not taking such adequate precautions.

DEFINITION

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.”

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.

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.”

ESSENTIALS OF NEGLIGENCE TORT

• DUTY TO TAKE CARE

There is an important condition under the liability for negligence that the defendant owes a legal duty towards the plaintiff. The following case laws will help us to understand the important element.

In GRANT V. AUSTRALIAN KNITTING MILLS LTD., 1935 AC 85; From a retailer, the plaintiff purchases two sets of woolen underwear. After wearing it, he suffers from a skin disease. This problem occurs due to the excess amount of sulphates present in the wool and not removing it at the time of washing it due to the negligence at the time of washing it. In this case, the manufacturers are completely liable as they are not able to perform their duty correctly.

• DUTY TO WHOM

DONOGHUE V. STEVENSON, 1932 AC 562, adds further to this idea and expands the scope of duty by stating that the duty so raises extends to our neighbor. While explaining who is my neighbor LORD ATKIN states 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”

• DUTY MUST BE TOWARDS THE PLAINTIFF

It is not sufficient that the defendant owed a duty to take care. It must also be established that the defendant owed a duty of care towards the plaintiff

In BOURHILL V. YOUNG, 1943 AC 92; the plaintiff, a fishwife, alighted from a tram car. 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 the distance of 15 yards on the other side of the tram and died instantly. The plaintiff could see neither the deceased nor the accident as the tram was standing between her and the place of accident. She had simply heard about the collision and after the dead body had been removed she went to the place and saw blood left on the road. Consequently, she suffered a nervous shock and gave birth to a still-born child of 8 months. She sued the representatives of the deceased motor-cyclist. It was held that the deceased had no duty of care towards the plaintiff and hence she could not claim damages.

• 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 number of persons died due the collapsing of a clock-tower in the heart of the Chandni Chowk, Delhi.The normal life of such structures are normally 40 45 years but the tower was around 80 years old. The Municipal Corporation of Delhi is held liable as it is under their hands and they are not able to take care and perform their duties efficiently.

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.

• CONSEQUENT DAMAGE OR CONSEQUENTIAL HARM TO THE PLAINTIFF

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.

THE HARM MAY FALL INTO FOLLOWING CLASSES :-

1. physical harm, i.e. harm to body;
2. harm to reputation;
3. harm to property, i.e. land and buildings and rights and interests pertaining thereto, and his goods;
4. economic loss; and
5. mental harm or nervous shock.

In ACHUTRAO HARIBHAU KHODWA V. STATE OF MAHARASHTRA (1996) 2 SCC 634; a cotton mop was left inside the body by the negligence of the doctor. The doctor was held liable.

RES IPSA LOQUITUR

The Latin term RES IPSA LOQUITUR means “the thing speaks for itself “. which means the situation of a particular act is enough to get the idea what has happened. It is the principle that the mere occurrence of some types of accident is sufficient to imply negligence.

In tort law, a principle that allows plaintiffs to meet their burden of proof with what is, in effect, circumstantial evidence. The plaintiff can create a rebuttable presumption of negligence by the defendant by proving that the harm would not ordinarily have occurred without negligence, that the object that caused the harm was under the defendant’s control, and that there are no other plausible explanations. It is a Prima facie case.

According to the BLACKS LAW DICTIONARY the maxim is defined as the doctrine providing that, in some circumstances, the mere fact of an accidents occurrence raises an inference of negligence so as to establish a prima facie (at first sight) case. It is a symbol for the rule that the fact of the occurrence of an injury taken with the surrounding circumstances may permit an inference or raise a presumption of negligence, or make out a plaintiff’s prima facie case and present a question of fact for the defendant to meet with an explanation.

ESSENTIALS TO PROVE RES IPSA LOQUITUR 

• The incident was of a type that does not generally happen without negligence
• It was caused by an instrumentality solely in defendant’s control
• The plaintiff did not contribute to the cause

CONTRIBUTORY NEGLIGENCE

Contributory negligence is a type of tort where the person, who must care omit his duty and harm another person. It is one of the self-defence that is taken by the accused. It is an act of ignorance and carelessness by the person who has the duty to care which a reasonable man would do.

Negligence in a layman’s language is the omission of the duty to take care of, which results in injury to the appellant. Both the property and the person can be harmed due to negligence.

Suit for the negligence arises whenever there is a breach of duty which the man of reasonable calibre would not do and it resulted in injury.

TO ARISE ANY SUIT FOR NEGLIGENCE IT IS NECESSARY THAT

• There should be ignorance and carelessness.
• Breach of duty which a reasonable and prudent man would not do.
• Breach of duty which is recognised by the law.

CONCEPT OF DUTY TO CARE :- The phrase duty to care itself means it is an obligation on the person to take care and to do things more carefully so that there will be zero chances of any risk or injury from their side. If there is any kind of omission to fulfil the duty then it gives rise to the liability.

In the case of DONOGHUE V. STEVENSON- The girl was having a ginger beer when she discovered there is a decomposed snail in the bottle and due to the consumption of ginger beer she suffered from gastroenteritis. She sued the manufacturer of the bottle. It was HELD that the manufacturer is liable and he has the duty to care before selling the bottles to others and he should take all the necessary steps to avoid any kind of injury to the neighbours.

DEGREE OF CARE :- The degree of care is directly responsible for the gravity of the injury caused. The more the gravity of the injury the more care is required. If any act or omission can cause injury to the great extent then more care is required.

CONCEPT OF CONTRIBUTORY NEGLIGENCE :- It means that the ignorance or the carelessness of both the parties is involved. It is a defence which is available to the defendant which prevents the plaintiff to get compensation

Contributory negligence is the ignorance of due care on the part of the plaintiff to avoid the consequences of the defendant’s negligence

The concept of Contributory negligence is based on the principles of “Volenti non-fit injuria”. The maxim means that the injury has suffered voluntarily and the defendant is not fully liable. So, if the plaintiff is not taking due care and due diligence where he has to take care of and he got injured then the liability is both on the plaintiff and the defendant.

But if both the plaintiff and the defendant take due care and all the measures to avoid the accident or the injury then the plaintiff cannot sue the defendant for that.

THE BURDEN OF PROOF - The burden of proof is on the defendant to prove that the plaintiff is equally liable for the act. And the plaintiff was not careful and due to which he suffered injuries.

In the case of GREAT CENTRAL RLY. V. BATES- The plaintiff sustained injuries as he fell down from the shaft of the lift because he went backwards opened the doors and stepped through it assuming that the lift would still be in place, It was held that this is the case of contributory negligence the plaintiff won’t get any compensation.

In the case of HANSRAJ V. TRAM CO - X boarded in a moving tramcar and suffered injuries. So, X sued the company. It was held that X should have waited for the tramcar to stop and then he should have boarded so the company was not held liable.

THE DEFENCE OF CONTRIBUTORY NEGLIGENCE IS NOT AVAILABLE WHEN :- It is proved that the defendant has the duty to take full care and he is legally bound to take full care and diligence. So, if any injury is caused to the plaintiff then the defendant will be held liable.

FOR EXAMPLE- A and B was travelling in a bus and A, in order to show something to B, pointed his hand outside the window and the window suddenly got open and A was injured. Although there was A’s duty to not take out his hands of the window but the staff and the crew were liable as it was their duty to check all the windows and the doors.

RULE OF THE LAST OPPORTUNITY - It means who is having the last opportunity to avoid the accident.

FOR EXAMPLE - If the dog suddenly came before the car which B was driving rashly then B will be held liable as he was having the last opportunity to prevent the accident.

It is always the defendant who has the last opportunity according to the law and it will be treated as his negligence.

MEDICAL NEGLIGENCE

The medical field has been an evidence to various unfortunate incidences of negligence causing death, thus the acts so related fall under the ambit of ‘medical negligence. In such suits, the onus to prove fault lies on the plaintiff. He /she has to prove that the medical professional has failed to perform his duties and has aberrated from the normal course of the practice prevalent.

The court has laid down various precedents to iterate in terms of determining negligence in MEDICAL CASES.

POONAM VERMA V. ASHWIN SINGH

In this case, a homeopathic doctor had administered medicines of allopathy. Thus, the court held that whenever there is an act which is an impression from the normal course of practice and is in violation of statutes that governs such practices the medical professional can be charged with negligence. The act will be classified as negligence also because of the fact that it is not anticipated from such professionals.

JACOB MATHEW V. STATE OF PUNJAB

In this case, the appeal was filed by the doctor who had been alleged of medical negligence that had resulted in death of the respondent’s brother. The deceased had died on the account of delayed supply of oxygen cylinders and lack of immediate treatment that was to be provided in such a case. The court held that a professional who makes the promise of possessing the required skills for a particular job, if he fails to do what he is supposed to do and thereby breaks the fiduciary relationship between him and his client then the professional can be charged with negligence. This negligence arises out of the cause that he had negligently conducted his activities or conducted his activities in a manner which was not in accordance with the common practice.

COMPOSITE NEGLIGENCE

Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrong doers, it is said that the person was injured on account of the composite negligence of those wrong-doers. In such a case, each wrong doer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrong-doer separately, nor is it necessary for the court to determine the extent of liability of each wrong-doer separately.

NERVOUS SHOCK

MEANING OF NERVOUS SHOCK: – Medically speaking nervous shock would mean a sudden drop in blood pressure and resulting circulatory failure marked by pallor, sweating, rapid (but weak) pulse, and sometimes complete collapse. Causes include disease, injury, and psychological trauma. In shock, the blood pressure drops below what is needed to supply the body’s tissues, especially the brain.

In English law, a nervous shock is a psychiatric/mental illness or injury inflicted upon a person by intentional or negligent actions or omissions of another. It is a shock which arises from a reasonable fear to immediate personal injury to oneself. Often it is a psychiatric disorder triggered by witnessing an accident, for example an injury caused to one’s parents or spouse. Although the term “nervous shock” has been described as “inaccurate” and “misleading”, it continues to be applied as a useful abbreviation for a complex concept. The possibility of recovering damages for nervous shock, particularly caused by negligence, is strongly limited in English law.

FOR A CASE UNDER NERVOUS SHOCK, THE PLAINTIFF HAS TO PROVE THE FOLLOWING THINGS: –

• Necessary chain of causation between nervous shock and the death or injury of one or more parties caused by the defendant’s wrongful act;
• Plaintiff is required to prove shock caused to him by seeing or hearing something. Physical injury is not necessary;
• His proximity to the accident was sufficiently close in time and space.

Tort law was always considered an unwritten principle for bodily injuries. The courts have earlier said that nervous shock or psychiatric injury will not be entitled for any compensation. He said that in no way a nervous shock can be equated with physical damage. However, it was very clear that if nervous shock is so direct as to physical damage that it can cause damage to the brain, so in such a case, compensation for nerve shock is also allowed.

Nervous shock claims can be brought by persons who have witnessed, at the scene, a victim being killed, injured or put in peril if it is accepted by the Court that they have a genuine psychiatric illness arising from a circumstance that the defendant ought to have foreseen to be capable of causing a person of normal fortitude to suffer a recognisable psychiatric illness if reasonable care were not taken. Claims for damages for pure mental harm or nervous shock should only be brought by individuals who have suffered very significant psychological injury as a result of a particular event. Appropriate compensation can be awarded to persons with significant injuries that negatively impact upon their ability to earn an income and which give rise to significant medical expenses.

REMEDIES FOR NEGLIGENCE UNDER LAW OF TORTS

The principal remedy in any case involving negligence will be an award of damages. The damage caused to the claimant must be of a type that is ‘reasonably foreseeable’. A loss is reasonably foreseeable if a reasonable man would have foreseen the type of injury, loss or damage. Proving the duty of care As a general rule it is for the claimant to prove that the defendant was in breach of the duty of care. Exceptionally the defendant will have to prove that he was not negligent.

THIS WILL ONLY OCCUR IF:

• the harm would not have normally happened if proper care were taken
• there is no other explanation for what has occurred, known as res ipsa loquitur, the thing that speaks for itself
• the defendant was in control of the situation and the victim was not.

REMOTENESS OF DAMAGE

The principle of Remoteness of Damages is relevant to such cases. An event constituting a wrong can constitute of single consequence or may constitute of consequences i.e. series of acts/wrongs. The damage may be proximate or might be remote, or too remote.

OVERSEAS TANK-SHIP (UK) V MORTS DOCK AND ENGINEERING CO (THE WAGON MOUND) (1961)

FACTS: due to the defendant’s negligence oil was spilled and accumulated around the claimant’s wharf. The oil ignited and the wharf suffered fire damage.

HELD: The defendants were held not liable for negligence under Law of Torts since, while damage to the wharf by oil pollution was foreseeable, damage by fire was not.

If the type of damage is reasonably foreseeable the defendant is liable. It is irrelevant that the defendant might not have been able to foresee its cause or its severity.

DEFENCES AGAINST NEGLIGENCE UNDER LAW OF TORTS

IN AN ACTION FOR NEGLIGENCE UNDER LAW OF TORTS FOLLOWING DEFENCES ARE AVAILABLE: –

• CONTRIBUTORY NEGLIGENCE:

When a tort or a wrongful action is committed by negligence on the part of both , the plaintiffs and defendants, the defendants can raise the plea of contributory negligence under Law of Torts. It was the Common law rule that anyone who by his own negligence contributed to the injury of which he complains cannot maintain an action against another in respect of it. Because, he will be considered in law to be author of his wrong.

In case of BUTTERFIELD V. FORRESTER, (1809) 11 EAST 60; the defendant had put a pole across a public thoroughfare in Durby, which he had no right to do. The plaintiff was riding that way at 8’O clock in the evening in August, when dusk was coming on, but the obstruction was still visible from a distance of 100 yards, he was riding violently, came against the pole and fell with the horse. It was held that the plaintiff could not claim damages as he was also negligent.

• ACT OF GOD OR VIS MAJOR:

Act of god refers to some natural calamity such as heavy rainfall , storms ,earthquakes and volcanoes.

TWO CONDITIONS ARE ESSENTIAL FOR THIS DEFENCE:

1. There must be working of natural forces.
2. The occurrence must be extraordinary and not the one which could have been anticipated.

It is such a direct, violent, sudden and irresistible act of nature as could not, by any amount of human foresight have been foreseen or if foreseen, could not by any amount of human care and skill, have been resisted. Such as, storm, extraordinary fall of rain, extraordinary high tide, earth quake, etc.

In NICHOLS V. MARSLAND, (1875) LR 10 EX.255; the defendant had a series of artificial lakes on his land in the construction or maintenance of which there had been no negligence. Owing to an exceptional heavy rain, some of the reservoirs burst and carried away four country bridges. It was held that, the defendant was not liable as the water escaped by the act of God.

• INEVITABLE ACCIDENT :-

If the plaintiff has an unexpected injury owing to an unforeseen and Inevitable event, in spite of reasonable care on the part of the defendant, it is called inevitable accident. The defendant has to prove that he neither intended to injure the plaintiff nor had the means to avoid the injury by taking reasonable care. An inevitable accident is that which could not possibly, be prevented by the exercise of ordinary care, caution and skill. it means accident physically unavoidable.

In BROWN V. KENDAL, (1859) 6 CUSSING 292; The plaintiff’s and defendant’s dogs were fighting, while the defendant was trying to separate them, he accidentally hit the plaintiff in his eye who was standing nearby. The injury to the plaintiff was held to be result of inevitable accident and the defendant was not liable.

In HOLMES V. MATHER, (1875) LR 10 EX.261, 267; a pair of horses were being driven by the groom of the defendant on a public highway. On account of barking of a dog, the horses started running very fast. The groom made best possible efforts to control them but failed. The horses knocked down the plaintiff who was seriously injured, it was held to be an inevitable accident and the defendant was not liable.

In STANLEY V. POWELL, (1891) 1 QB 86;The plaintiff and the defendant, who were members of a shooting party, went for pheasant shooting. The defendant fired at a pheasant, but the shot from his gun glanced off an oak tree and injured the plaintiff. It was held that the accident was an inevitable accident and the defendant was not liable.

CASE LAW REGARDING RES IPSA LOQUITUR

ROE V. MINISTER OF HEALTH

In this case the plaintiff was admitted to the hospital for minor operations. The plaintiff was administered spinal anaesthetics by injections of nupercaine and developed spastic paraplegia. The anaesthetics were stored in glass ampoules immersed in a solution of phenol, and the judge found that the injuries were caused by phenol, which could have entered the ampoules through flaws not detectable by visual examination. The plaintiff contended that the doctrine of Res Ipsa Loquitur be applied against the hospital as the injury would not have occurred had the hospital not been negligent.

HOUGHLAND V. R.R. LOW (LUXURY OF COACHES) LTD.

The plaintiff’s suitcase was deposited with the defendant bus-owner’s driver at the beginning of a journey. The bus broke down and the luggage was transferred by the owner’s servants from the bus’s boot to another bus. At the end of the journey the suitcase could not be found. The plaintiff was awarded damages and the court held that if the luggage had been lost then it was upto the defendant to prove that he was not negligent, which is nothing but Res Ipsa Loquitur.