Negligence in Law Of Torts

Meaning of Negligence

The meaning of negligence will be clear from the following:

(1) 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.

(2) In Union of India v. Hindustan Lever Ltd., the Court held that negligence in a breach of duty to take care remitting in damage to one whether to person or property.

(3) Negligence constitutes an independent basis of tort’s liability.It means which creates a risk of causing damage, rather than the state of mind. The House of Lords in the case of Donoghue v. Stevenson, stated as “treats negligence, whether there is a duty to take care, as specific tort in itself, and not simply as an element is some more complex relationship or in some specialised breach of duty.

(4) In the case of Heaven v. Pender, the Court defined the negligence as an “actionable negligence consists in the neglect of the use of ordinary case or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill by which neglect the plaintiff has suffered injury to his person or property.”

Also Read Rule of Novus Actus Interveniens

Also Read Remoteness of Damages

Two Theories of Negligence :

There are the following two rival theories about the nature and definition of negligence.

(1) Subjective theory: According to Austin, “negligence is faulty mental condition which is penalized by the award of damages.” Salmond says, “Negligence is culpable carelessness.” Although negligence is not synonymous with thoughtlessness or inadvertence, it is, nevertheless, in his view essentially an attitude of in difference. Negligence, according to Salmond, essentially consists in the mental attitude of undue, indifference with respect to one’s conduct and its consequences. Winfield also supports this theory. He says, “As a mental element in tortious liability negligence usually signifies total or partial inadvertence of the defendant to his conduct and for its consequences. In exceptional cases there may be full advertence to both the conduct and its consequences. But in any event, there is no d├ęsire for the consequences, and this is the touchstone for distinguishing it from intention.”

(2) Objective theory: According to this theory negligence is not a particular state of mind or form of “mens rea” at all, but a particular kind of conduct. Pollock is support of this theory writes, Negligence is the contrary of diligence and no one describes diligence as a state of mind.” Diligence today mens activity which is not a state of mind. Negligence is the breach of duty to take care, and to take care means to take precautions against the harmful results of one’s actions and to refrain from unreasonably dangerous kind of conduct. To drive at night without light is negligence, because to carry light is a precaution taken by reasonable and prudent man for the avoidance of accidents. The law demanding an amount of care which is reasonable in the circumstances of the particular case this obligation to use reasonable care is commonly expressed by reference to the conduct of “a reasonable man” or of “an ordinary prudent man” meaning thereby a reasonably prudent man.

Correct view: The balance tilts in favour of objective theory.

Also Read Determining the amount of compensation/damages for personal injuries

Also Read Remedies which are available to an aggrieved person in Tort

Clark and Lindsell 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.”

The objective theory has found judicial approval in many leading cases:

In Blyth v. Birmingham Waterworks, Alderson, B, defined negligence thus, “Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent
and reasonable man would not do.”

In Dharman v. N. C. Srinivasan, Madras High Court says that “it rules out any negligence on the part of the respondent and clearly spells out rashness and negligence on the part of appellant. We concur with the finding of the Tribunal as well as the learned Judge to that effect.”

Is negligence a specific Tort?:

Prof. Winfield has attributed double meaning to negligence, it signifies (i) “a definite tort which consists in the breach of a legal duty to advert to the circumstances of the consequence (or both) of an act or omission which cause, damage to another; the standard of this legal duty is that of a reasonable man so far as advertence to the circumstances of the act or omission is concerned and that of directness with respect to the consequences; (ii) merely inadvertence to legal duty, which inadvertence is a possible mental element in the commission of some other torts”.

In Donoghue v. Stevenson, the House of Lords treated negligence, where there is a duty to take care, as a specific tort in itself and not simply as an element in a more complex relationship, or in, some specialised breach of duty. Of course, actions so not lie for a state of mind. Negligence, then is conduct, not a state of mind, conduct which involves the risk of causing damage. There can be no doubt that the action of negligence is now recognised as an independent tort.

In Union of India v. Hindustan Levers Ltd., the court held that negligence may be defined as omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the human affairs would do, or something which a prudent and reasonable man would not do. So negligence is breach of duty to take care resulting in damage to one whether to person or property. The said duty to take care may be imposed by statute or it may arise due to the relation in which one may stand to another.

Conditions of liability for negligence:

Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing the ordinary care or skill, by which neglect the plaintiff has suffered injuries of his person or property.

The essential conditions for liability for negligence, therefore, are:

(1) That the defendant was under a legal duty to exercise due care and skill as there cannot be any liability for negligence unless there is a breach of some legal duty.

(2) That the duty was towards the plaintiff.

(3) That there was breach of that duty on the part of the defendant, that is, the defendant failed to perform the duty to exercise his due care and skill.

(4) That there was consequential injury or damage thereby, that is, damage as the natural and probable consequence and the direct cause of the breach of the duty complained of. In other words, the breach of such duty should be the causa causans that is, the direct and proximate
cause of the damage complained of. If the casual connection between the negligent act and the damage is not direct, the damage is too remote, for which there is no remedy at law.

In the case of Arun Kumar v. Union of India (2001), where the hand of a three years child was caught and badly chewed by a tigress in a zoo. Consequently the hand of the child was amputated. It was held that the zoo authorities failed to have due care. It was their absolute
liability to keep the zoo in a complete safe situation. The Delhi High Court awarded a compensation of Rs. 5,00000.

(a) Duty of take care

It has been defined as a restriction on the defendant’s freedom of conduct obliging him to behave in a reasonable manner as a reasonable man would behave in the like circumstances. No action lies for the harm caused by negligence unless the defendant was under a duty to take care. Such duty may be the ordinary common law duty or a special duty imposed by statute or private Act. The idea of negligence and duty are co-relative as there is no such thing as negligence in abstract; negligence is simply neglect of some care which we are bound to exercise towards somebody.

In Mysore State Road Transport Corp., v. Albert Dias, the driver of a bus, belonging to the appellant tried to overtake a bullock cart from the right. While overtaking the right wheels of the bus got on to the untarred road where was deep loose mud. The wheels of the bus sank in the mud and the bus toppled to the right side, as a result of which several passengers including the respondent got injured. In a suit or damages for negligence it was found that the driver in this case could not know that the soil of the untarred road was a so much full of mud, until the accident actually took place. It was held by the Mysore High Court that the plaintiff respondent under these circumstances failed to prove any negligence, i.e., duty to take care on the part of the driver of the appellant and there be cannot recover damages from the appellant. Where the driver of a bus drove the bus on the incorrect side and drove it at more than normal speed which was expected on a road congested with the traffic of school children and injured a girl who was coming on a cycle from the opposite side but took a wrong turn suddenly apprehending a danger, the Court has held the driver guilty of negligence.

In Arun Kumar v. Union of India (2001), where the hand of a three years child was caught and chewed by a tigress. It was held by the Delhi High Court that the zoo authorities failed to keep the zoo in a safe condition. It was their absolute liability to have due case to keep the zoo
safe for people.

In Municipal Corporation Delhi v. Smt. Sushila Devi, the Supreme Court held the corporation liable, where the husband of plaintiff died due to fall of a heavy branch of a true. The court held that the corporation in under a duty to keep the roads safe rom falling dry tress. The Court. allowed a compensation of Rs. 1,44,000.

In Ramdas and Son v. B.P. Singh, the appellants were contractors who undertook to lay certain pipelines. They made certain trenches for this purpose in front of a Government hospital. The trenches were unfenced and did not have any light. The respondent while going to the hospital in the night fell in the trenches and got serious injuries. It was held that the appellants were liable as they failed to observe due care of providing fence as well as red light there.

(b) Duty towards the plaintiff

This is an essential condition because conduct which is negligent with reference to one may not be so towards another. The duty to take care is not in the air, but towards particular people – Per Bowen L. J. in Thomas v. Quatermaine. The duty must be in respect of the particular conduct complaint of.

In Makbool Ahmed v. Bhura Lal, Rajasthan High Court held that the conductor should have stood at the gate of the bus to see that every passenger had properly boarded the bus, and the driver should also have run the bus keeping in view the safety of the passengers and their failure to do so amounted to negligence on their part. The parents and widow of the deceased were therefore successful in their action for compensation against the owner, driver, conductor and the insurer of the bus.

In a recent case of C. Chinnathamli v. Tamil Nadu (2001), where two children died in accident caused due to fall of water tank of the building. High Court held that it was the duty of shcool authorities to see the construction. The Court awarded a compensation of Rs. 1,50,000.

Mass Tort action: Where a great number of people were injured by a single massive disaster, the Supreme Court held that the strict, orthodox and conventional approach that each claimant must be a plaintiff need not be followed. The Supreme Court looking at the complexity of the issue did not disturb the settlement arrived at between the wrong doer and the government providing a lump-sum of distribution among sufferers. The Court directed the government that if the lump-sum was not sufficient to go round the claimants, the government should supplement it. In referene to the amount of lump-sum, the Court said that it should have no link with the economics superiority of the wrong doer. The Court ordered the compensation amount to the distributed according to quantification of damages by scientific and statistical evidence including the possibility of the suffferers’ unborn children suffering from the exposure to toxic substances negligently released in Bhopal Gas Disaster.

Standard of care: To say that a conduct is “careless’ or negligent is not to “define” it, but to “evaluate” it and conduct can only be evaluated in the light of some norm, or standard, which the person making evaluation has in mind. The Courts have, therefore, been forced to adopted a legal measuring-rod or standard of care, to which the defendant’s conduct must conform if he is to escape liability in negligence. The standard should be that of an ordinary reasonable man, placed in the defendant’s circumstances.

“Main of ordinary prudence” or “Reasonable man”: Both these phrases mean a “reasonable prudent man”. A reasonable man would so regulate his conduct as to avoid producing any undesirable consequences which he foresees as probable. That is the normal standard of careful conduct. If the conduct in question all short of that standard it is negligent.

(c) Degree of care

The degree of care which a man is required to use in a particular situation in order to avoid the imputation of negligence varies with the “obviousness of risk”. If the danger of doing injury to the person or property of another by pursuance of a certain line of conduct is great the individual who proposes to pursue the particular course is bound to use great care in order to avoid foreseeable harm. On the other hand, if the danger is slight, only a slight care is required. The rule that a man is held to the exercise of the degree of care which an ordinarily prudent man would exercise in the same situation, is subject to two exceptions:

(1) If a man is, or holds out to be, specially skilled in a particular profession, he will be held liable for negligence, if he fails to exhibit the care and skill of one ordinarily an expert in that profession. In P Narasinkha Rao v. Gundaverapu Jayaprakashan, it was held by Andhra Pradesh High Court that law “imposes a duty on everyone to conform to a certain standard of conduct for the protection of others. In the case of persons who undertake work requiring special skill must not only exercise reasonable care but measure upto the standard of proficiency that can be expected from of such profession. Failure to conform to the required standard of care resulting in material injury is actionable negligence if there is proximate connection between the defendant’s conduct and the resultant injury. A surgeon or anaesthetist will be judged by the standard of an average practitioner of class to which he belongs or holds himself out to belong. In the case of specialists a higher degree of skill is called for.”

In this case, both the anaesthetist who administered anaesthesia to the patient and the doctor who performed operation were held guilty of negligence. The anaesthetist after administering anaesthesia exposed the patient for about three minutes to room temperature and failed to administer fresh breaths of oxygen before removing endor-tracheal tube there was dely on his part in inserting tube again when respiratory arrest occurred and the doctor who had noticed the respiratory arrest commenced the operation and completed the same which resulted in patient becoming victim of cerebral anoxia rendering the patent dependent on his parents.

(2) In a moment of peril and difficulty the Court should not and do not expect perfect presence of mind, accurate judgement and promptitude. If in a sudden emergency a man does something which might, as he knew the circumstances, reasonably think proper, he is not to be held guilty of negligence because upon review of the facts, it can be seen that the course he had adopted was not in fact, the best.

Where a person suddenly comes before a fast-moving vehicle and is injured thereby, the driver cannot be blamed for that. The driver of a bus could not anticipate the certain passenger would jump off a moving tram car and come in front. The driver cannot save such person despite his best care. But where the pedestrians crossing the road are school boys of young age, greater care is needed.

When the duty arises: The duty to take care arises as soon as there is a reasonable probability of danger from the conduct of defendant. In Heaven v. Pender, it is laid down that the duty arises only if a person is ‘near’ to the person or property of another. This rule of nearness or proximity found favour with the House of Lords in Donoghue v. Stevenson, when Lord Atkin observed:

“The rule that you are to love our neighbour becomes, in law, you must not injure, your neighbour; and the lawyer’s question, who is my neighbour, receives a strict reply. You must take reasonable care to avoid acts or omission which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour. The answer seems to be that the persons, who are so closely and directly affected by the act that I ought reasonably to have them in contemplation, as being so affected, when I am directing my mind to the acts or commissions, which are called in question, are my neighbours.”

“Proximity” does not mean “physical proximity” only but it extends to such loose and direct relations that the act complained of directly affects, a person who, the person alleged to be bound to take care would know, would be directly affected by his careless act. The rule of proximity has afforded a valuable practical guide.

The existence of contractual duty on the part of the defendant towards the plaintiff is not necessarily essential. The rule in Winterbottom V. Wright, that unless there was contractual liability on the defendant’s part to the plaintiff there could be no liability in tort, is now finally and completely exploded by the Donoghue’s case. It is now settled beyond doubt that contractual liability is utterly irrelevant to the existence for liability in tort. This was the ratio decidendi of Grant’s case also.

Breach of duty to take care: In an action for negligence it must be definitely shown that there was breach of duty to take care on the part of defendant. The question whether the defendant’s conduct amounts to negligence or breach of duty may be decided with reference to the principle laid down by Alderson B, in Blyth v. Birminghan Water Works Co., negligence is “the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.” Thus, it is the standard of reasonable man with the reference of which the breach of duty may be decided. According to Lord Dunedin in Morton v. William Dixon Ltd., breach of duty means that the thing which the defendant did not do was a thing which was commonly done by other persons in the like circumstance of that it was a thing which was so obviously wanted that it would be folly in any one to neglect to provide it. Thus, the evidence of previous practice in similar circumstance is of very great value if not conclusive, in deciding the question of negligence.

In Safdar Husain v. Union of India, the defendant a stock Head Clerk of Northern Railway was entrusted with the additional functions of the Chief booking clerk, so he was required to maintain accounts of cash entrusted to him by various Booking clerks. He had some cash also which he kept in the iron safe of his office room and placed the key of the safe in a hidden place inside the wooden almirah. The next day the cash was found missing. The railway had not provided any place for keeping the key of the safe and it was the practice of the previous Chief Booking clerks to keep the key in a hidden place in the almirah. It was held that there was no negligence on the part of the defendant as it was the consistent practice of keeping the key in the hidden place.

In a recent case of Saraswati Parabhai v. Grid Corporation of Orissa, where an electric pole with live wire uprooted during rains and storm. The husband of the plaintiff died due to electric shock. The Court held that the authorities of the Corporation failed to their duty to keep proper safety measures.

In Satish Chandra Shukla v. Union of India, the appellant-plaintiff got himself operated upon for sterilisation for getting money by falsely stating that he was married and had two female children. The father of the appellant pleaded that the appellant was of unsound mind and was not capable of consenting to the operation, and that the respondents should be liable for performing the vasectomy operation of an unmarried person. The Court found that when the plaintiff went for the operation, there was nothing to indicate from his conduct or behaviour that he was mentally ill, rather he showed proper understanding of the things. Under the circumstances it was held that there was no negligence on the part of the medical authorities in performing the said operation, and they were, therefore, not liable for the same.

(d) Damage

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 consequence of negligent act which was the direct and proximate cause of the damage. If the casual relation between the damage and the negligent act is direct, there is no remedy at law.

Damages are awarded to compensate the plaintiff for the damage caused to him and to place him in the same position in which he would have been but for the injury or the wrong sustained. The amount of damages depends upon the character of the negligence.

In The National Small Industries v. Bishambar Nath, plaintiff building was damaged by a fire caused by the negligence of defendant’s servant. It was held that the amount of damage have to be estimated with a view to find out as to what amount would be required to bring the building to the same condition in which it was, before it was damaged by fire.

In Indian Medical Association v. U.P. Shantha and others, the Supreme Court held that medical practitioners, though belonging to Medical profession are not immune from a claim for damages on the ground of negligence. The fact that they are governed by the Indian Medical Council Act and are subject to the disciplinary council of Medical Council of India and state Medical council is no solace to the person who has suffered due to their negligence and the right of such person to seek redress is not affected.

Question:- What is negligence? Explain the same with the help of important decided case law.

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