NEGLIGENCE By DEEKSHA KATHAYAT What is negligence
By DEEKSHA KATHAYAT
What is negligence?
In law of tort, the word negligence has two meanings.
1. Firstly, negligence demonstrates the state of mind of a party in doing an act.
2. And secondly it means a conduct which the law deems wrongful.
Initially the word was generally used in its subjective sense as a mode of doing another wrongful act. In simplest sense negligence means carelessness.
Now, Negligence has become an independent specific tort. Although it is clearly a mental element but still judges regard external standard and do not take into consideration his real mental attitude at the moment of the act.
Definition of negligence
1. Winfield defined negligence “as a tort is the breach of a legal duty to take care which results in damage, undesired by the defendant, to the plaintiff.”
2. Negligence may be defined as a breach of duty, caused by the omission to do something which a reasonable man would do or doing something which a prudent and reasonable man would not do.
3. Austin defined negligence as “In case of negligence, a party performs not an act to which he is obliged, he breaks a positive duty.”
4. Lord wright in LOCHGELLY IRON COAL CO. V. M. MULLAN 1914 AC 25- said: – In strict sense negligence means more than heedless or careless conduct, whether in omission or commission.
Concept of duty of care
The fundamental principle of English law of negligence is based on concept of duty of care and it was affirmed by the house of lords in a majority judgment in a leading case, DONOGHUE V. STEVENSON 1932 A.C. 562.
In this case, the plaintiff with her friend went to a café in Paisley for refreshments. They ordered ice cream and a bottle of ginger beer. The ginger beer was served in a stoppered bottle of a dark opaque glass and had been manufactured by Stevenson. After the plaintiff had finished her ice cream her friend tried to replenish the glass by pouring into rest of the ginger beer and as she was doing this, the remains of a decomposed snail floated out. Plaintiff suffered from shock and severe gastro – enteritis. House of lords held that defendant owned plaintiff the duty to take care and that he was liable as he did not perform his duty properly.
Standard of degree of care
An American judge Justice Hand gave his famous formula for determining the standard of care to be expected when dealing with cases of Negligence. This is also referred as Hand Rule or Hand Test.
Applying this formula, an act is a breach of the duty of care if:
B < P × L (P MULTIPLIED BY L)
Where B= burden of taking precautions
Where P= probability of the loss
Where L= loss that would result from the loss or mishap.
According to Justice Hand, the product of P× L must be greater amount than B to create a duty of acre towards the plaintiff.
Essentials of suit of negligence
In order to succeed in an action for negligence, the plaintiff must prove the following five things because in negligence cases the burden of proof is always on plaintiff.
1.Defendant was in a legal duty to take care.
2. That the duty was towards the plaintiff.
3. Defendant failed to perform that duty.
4. The breach of duty was direct and proximate cause, of the damage complained of by the plaintiff.
5. That the damage was caused on account of this breach of duty.
Defences available in a suit for negligence
1. Vis major (Act of God)
Acts which are occasioned by the elementary forces of nature, unconnected with the agency of man or other cause, will come under the category of Vis Major. For example – storm, extra ordinary rain, severe frost.
2. Inevitable accident
The second defence is that of inevitable accident.
3. Contributory negligence
Contributory negligence is negligence in not avoiding the consequences arising from the negligence of some other person, when means and opportunities were available to do so.
Relevant case laws of negligence
1. STANSBELE V. TROMAN, (1948) 2 K.B. 48
A decorator was engaged to carry out decorations in a house. The decorator left the house without locking the doors when the inmates were out. During his absence, a thief entered the house and stole some property. The court held that the decorator was liable as he was negligent in going away, leaving the house open.
2. RAMESH KUMAR NAYAK V. UNION OF INDIA (A.I.R. 1994 Ori. 279)
In this case, it was held that the inaction of the postal authorities to maintain the compound the wall of a post office in good condition can be said to be an act of negligence. The court held, that the person who sustained injuries due to collapse of the wall would be entitled to compensation.
1. P.H. WINFILED: – A textbook on law of Torts
2. P.S.A. Pillai: – Law of Tort
3. Noshirvan H. Jhabvala’s: – Law of tort
4. A.K. JAIN DUKKI: – Law of tort.
1. DONOGHUE V. STEVENSON 1932 A.C. 562.
2. STANSBELE V. TROMAN, (1948) 2 K.B. 48
3. RAMESH KUMAR NAYAK V. UNION OF INDIA (A.I.R. 1994 Ori. 279)