Tort of Negligence
I.
Introduction
According to
Judge Alderson, negligence means the breach of a duty caused by the omission to
do something, which a reasonable man would do, or doing of something, which a
prudent and reasonable man would not do. Negligence consist
of neglect to use of
ordinary care or
skill towards a person to whom the defendant owes the duty of
observing ordinary care and skill,
by which neglect,
the person has
suffered injury to
his person or property.
II.
Meaning: In everyday usage, 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.
III.
Definition:
Winfield
: According
to Winfield - 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., (1856)
LR 11 Exch. 781; ALDERSON, B. defined negligence as,
negligence is the omission to do something which a reasonable man…….. would do,
or doing something which a prudent or reasonable man would not do.
IV.
Essentials of negligence: -
In an action for
negligence, the plaintiff has to prove the following essentials:
1.
Duty to take care:
It means a legal duty
rather than a mere moral, religious or social duty. There is no general rule of
law defining such duty. It depends in each case whether a duty exists.
Donoghue
v. Stevenson – A purchased a bottle of ginger beer
from a retailer for the appellant. She consumed that and seriously suffered in
her health. She found some snail at the bottom of the bottle. She sued for
compensation. The defendant pleaded that he did not owe any duty of care
towards the plaintiff. The House of Lords held that the manufacturer owed her a
duty to take care that the bottle did not contain any noxious matter, and that
he would be liable on the breach of the duty.
IshwarDevi Verses Union of India
In this case, when the deceased placed his
foot on the foot-board of the bus and had not yet gone in, the conductor in a
very hasty manner rang the bell and the driver started the bus. All this was
done in an attempt to overtake another bus as a result of which the deceased
got squeezed or sandwiched between the two buses and sustained serious injuries and
died. The conductor and driver of
the bus were held liable for the rash and negligent act.
2.
Breach of duty to take care:
Breach of duty means
non-observance of due care which is required in a particular situation. In
other words a defendant must breach in such a duty to take care. Once
a claimant has proved the duty of care is owed he must then show that the
defendant breached that duty. This is merely when the defendant falls below the
standard of care appropriate to the duty. Breach of duty is measured
objectively by the ‘reasonable man test’.
The reasonable man is the ordinary person performing the particular
task: he is expected to perform it reasonably competently. Thus, when I am riding my bicycle, I am
expected to be a reasonably competent cyclist who can ride a bicycle. Therefore, a number of factors that can be
considered to raise or lower the standard. This is logical because a reasonable
person will rightly take greater risks in an emergency, and take more care when
the risk of harm is greater.
In
Municipal Corporation of Delhi
Verses Subhagwanti, a clock tower
situated in the heart of
the city, i. e., 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 MCD,
who was having control
of it had
obviously failed to
get the periodical
checkup and the necessary
repairs done pay
compensation for the
consequences of the
collapse of the structure.
In'Mata Prasad Verses Union of India, the gates of railway crossing
were open. While the driver of the truck tried to cross the railway line, the
truck was hit by incoming train. It was held that when the gates of the level
crossing were open, the driver of the truck could assume that there was no danger in crossing
the railway track. There was
negligence on the part of the railway
administration and they
were, therefore, held
liable.
Latimer
v AEC [1953] AC 643 House of Lords
The claimant worked in
the defendant's factory and slipped up on the factory floor. The factory had
become flooded due to adverse weather conditions. The defendant's had put up
warning signs mopped up and placed sawdust in the most used places to make it
as safe as possible. The court held not liable to the defendant.
3.
Actual 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. The harm may fall into following
classes:-
•
physical harm, i.e. harm to body;
•
harm to reputation;
•
harm to property, i.e. land and buildings and rights and interests pertaining
thereto, and his goods;
•
economic loss; and
•
mental harm or nervous shock.
V. No liability when
injury is not foreseeable
The
defendant is having a liability for tort of negligence only if the injury is
foreseeable and if the injury which cannot be foreseen by ordinary care and
caution the defendant will not be held liable.
Cates v. Mangini Bros
In
this case the plaintiff was injured by
the falling of ceiling fan. The fan felt by the reason of defect in the
suspension rod of the fan, this defect was latent one which cannot be foreseen.
The court released the defendant from the liability.
Ryan
v. Young
In
this case the accident took place due to the sudden death of the driver on the
steering wheel. The driver was quite healthy when the steering was hand over to
him and the death of the driver was not expected. The injury was not
foreseeable that’s why the defendant was not held liable.
VI. Conclusion
If the plaintiff want to claim
compensation then he must prove that the defendant owes a duty to take care and
he commits a breach in such a duty to take care due to which the damage
resulted to the plaintiff.
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