LAW YOG
Negligence

Negligence- Not Mere Condition but A Tort In Itself

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A tort is an act or omission which gives rise to harm or personal injury to another and that amounts to a civil wrong for which court imposes civil liability. In simple words, you caused injury or harm to another person for which you are liable to pay monetary damages. The aim of this law is to provide relief to the other person in the form of damages who have suffered wrongful acts of others. Most of the cases in civil court except contractual disputes fall under the category of the law of tort. Negligence itself is a tort and is most common in tort cases.

Meaning of Negligence

Negligence is mere carelessness only. The word negligence has been derived from Latin word negligentia which means failing to pick up. It means when a person has a duty to take care and the care is not taken resulting in injury or harm to others. In legal terms, it signifies a failure to a standard of care which a doer as a reasonable man should have exercised in the circumstances. When one party is suffering from the act of another party which is caused due to carelessness that amounts to negligence.

As per Salmond, Negligence is mental attitude of undue indifference with respect to one’s conduct and its consequences.

In the case of Blyth v. Birmingham Water Works Co1, negligence was defined as an omission to do something which a reasonable man would do or doing something which a prudent or reasonable man would not do.

Forms of Negligence

There are 3 forms of negligence –

Nonfeasance

It means failure to perform the act which should have been done. For example, failure to carry out repair of society’s lift which should have been done.

Misfeasance

It means failure to perform the act properly which should have been done properly. For example, the lift of society’s compound was repaired but with poor material which leads to the breakdown of lift causing injury to some people.

Malfeasance

It means to perform such an act which should have been done at the initial place. For example, lift should be prepared beforehand only so it won’t cause injury to other people.

 Essentials of negligence

There are various elements of negligence. In order to succeed in the tort of negligence, the claimant has to prove these elements –

Duty of care

The duty towards the plaintiff must have a legal duty and not a moral, social or religious duty on the part of the defendant. If X is driving a car on the road so it’s his legal duty to take care of people who are on road, prevent accidents and not to harm any person whereas, on the other hand, his moral duty includes providing food to poor people. So it is a duty or the obligation of all people to act in a reasonable manner and take care of their own actions so that it won’t cause harm or injury to another person.

In the case-law of Ishwar Devi Malik V. Union of India and others2, the conductor of the bus rang the bell while the passengers were on the footboard only, and the driver started the bus as soon as the bell rang. In order to overtake the bus with another bus, the driver did not check the status of the passenger and the passengers who were on foot got pissed and died because of injury caused in his chest. So the family of the deceased filed a suit against the Union of India for the tort of negligence. And in this case, the court held the defendant liable for the negligent act of driver and conductor.

Duty towards Plaintiff

It is not sufficient to prove that the defendant has a duty to take care but it is important to prove that the defendant holds his duty towards the plaintiff and not at large.

Breach of duty

Once the fact has been established that the defendant has a certain duty towards the plaintiff, then in the next step you must determine whether the defendant has breached his duty or not. Here the defendant is liable to perform certain duties towards the plaintiff. And if the defendant breaches his duty then he will be liable for negligence. For example, children were playing in the society compound and one child got injured himself with a big machine, and also society’s compound was under construction. But no safety measures were taken by the secretary of society like no labelling or boards were there, here the secretary has a duty to cover that construction area or put a board there but nothing was done from the end of the secretary so it was held that defendant is liable for the act of negligence as he breaches his duty.

In the case of Glasgow corporation v. Taylor3 The defendant grows poisonous berries in his garden and no signboard regarding poisonous berries were there in the garden, and there was wooden fencing done near the plant which was open to the public and easily accessible by children. The child consumed that poisonous berries and died. The parents of the child filed the suit in court against the defendant and the court found the defendant liable for the tort of negligence.

In the other case of Mata Prasad V. Union of India4, the truck reached the railway line crossing and found out the gates were open and no gateman was present at the duty station, so he moved forward to cross the railway line and in between the engine of the train reached the railway crossing and hit the truck. In this case, the gateman breaches his duty to close the gate. So the court held the gateman liable for the tort of negligence.

Cause in fact

The onus of proving negligence in on the plaintiff. He has to prove that the actual cause of injury was caused because the defendant violates his duty. If the defendant performs his duty well, then there will be no damage caused to the plaintiff. This is often called the “but-for” causation which means that, but for the defendant’s actions, the plaintiff would not have incurred the damage.

Proximate cost

A defendant in the case of negligence is only responsible for those harms which he can foresee from his actions, if the damages caused to the plaintiff is outside the scope of defendant then it comes under proximate cause. Proximate cause also requires foreseeability. It must be foreseeable as to the result, and also as to the plaintiff. If the result is too remote, too far removed, or too unusual from the defendant’s act or omission so as to make them unforeseeable, then the defendant is not the proximate cause of the plaintiff’s harm.

Damage

It is not enough to prove that the defendant’s negligent act leads to injury. It is also necessary to prove that failure to exercise his standard duty results in damages to the plaintiff caused by the defendant who owes a duty of care. Proving of harm is must and when such harm is proved, the plaintiff is liable to receive damages.

In the case of Joseph vs Dr. George Moonjely5 The Kerala high court imposed damages of Rs1,60,000 against a surgeon who performed an operation on a 24-year-old girl while taking proper care and medical procedure. 

Res Ispa Loquitor

This is the Latin phrase which means “things speaks for itself”.

In some cases, it is not necessary for a plaintiff to prove all the essentials of negligence in order to make the defendant liable for his actions. Like, an accident took place and it clearly is seen that the real cause of the accident is driver’s negligent behaviour. So in such circumstances, it is not necessary for a plaintiff to prove all the essentials of negligence rather than the burden of proof shifts to the defendant to prove that he was not negligent. In such cases this maxim is applicable. One thing should be kept in mind while applying this maxim is that thing causing damage must be under the control of the defendant.  

In the case of Chief executive officer CESCO V. Prabhati sahoo6, a person was walking on the road and a bunch of electric wire was there and somehow that person came in contact with electric wire and died because of electrocution of a live wire conductor hanging at the lower height. Here nothing to show that the electricity supply was cut off totally. Rather it is showing electricity was supplied to one consumer. This accident can be avoided if the defendant performs his duty at his best. Hence this maxim is applied under this situation and compensation was given to the family members of the deceased person.

Remedies Available in the Suit of Negligence

There are some remedies available to defendants in case of negligence. Even if the plaintiff proves the defendant liable for negligence then also the defendant has these remedies available with them. Remedies are as follow –

Act of god

It describes an event which is not in control of humans. A direct, sudden and irresistible action of natural force such as could not reasonably have been foreseen or prevented by anyone. It includes flood, earthquake, storm, extraordinary high tide etc. If any such injury is caused to the plaintiff due to natural disaster, then the defendant won’t be liable in such cases and he proves the same in the court of law. For example, a building fell due to an earthquake no one is liable for this.

In the case of Ramalinga Nadar V. Narayan Reddiar7 the plaintiff had booked some goods for transportation. The goods were looted by the mob. The defendant tried his best to save the good which he had to deliver but wasn’t able to do so. Defendant took the defence of act of good. But the court held that this act won’t come under the ambit of the act of god.

Contributory Negligence

It means that the plaintiff was also negligent in the incident. Both plaintiff and defendant have done something wrong or they both are negligent from their ends. So this case plaintiff cannot sue the defendant for damages and in return, the defendant can take this remedy as a defence. For example, a plaintiff is driving at the wrong side of the road and an over speeding bus hit the car so both were negligent from their ends, plaintiff cannot claim compensation for the same. This remedy will help the defendant to avoid his liability.

In the case of Harris V. Toronto Transit Company8, the plaintiff was travelling in a bus and sustained injury because his hand was lying outside the window. Before this conductor of the bus warned several plaintiff times to take his hand inside the bus. The plaintiff filed the suit against the defendant and the defendant took the defense of contributory negligence. The contention defendant that plaintiff contributed to the loss.

Volenti non fit injuria

It states the plaintiff’s consent. Further, it states that if the plaintiff volunteered himself in the act that led to the incident then he cannot claim compensation. Here if the defendant proves that claimant had accepted the risk of loss then the defendant won’t be liable for the act.

Inevitable accident

It is such an accident which could not be prevented by the defendant. Defendant shows to court that injury is caused due to an unavoidable or unforeseeable situation. Even with due care, the defendant could not have avoided the injury caused to the plaintiff. For example, X was driving his car and his vehicle was struck by lightning and because of this, the driver lost his control of the vehicle which caused the injury to the plaintiff. So here the defendant shows his loss of control is because of lightning only and there is nothing which a driver can do to stop it, in such a scenario the driver won’t be held liable.

In the case of Brown V. Kendal9, the plaintiff and defendant dog were fighting and in order to separate them, the defendant hit the plaintiff’s eye who was standing nearby. It was held that the defendant is not liable, the act of the defendant will come under the purview of inevitable accident. 

Conclusion

Negligence as a tort has developed from English law and subsequently accepted by the Indian law as a substantial important law. In order to prove negligence, the burden of proof must be on the plaintiff that he suffered some loss or injury due to the negligent act of the defendant. The plaintiff must prove all the essential elements of negligence. An important maxim regarding negligence i.e Res Ipsa Loquitur is used by the courts when a negligent act cannot be explained. There are certain remedies also which are provided to the defendant in order to defend himself. 

Endnotes

1.  (1856) 11 Ex Ch 781, 156 ER 1047

2.  AIR 1969 Delhi 183, ILR 1968 Delhi 59

3.  (1922) 1 AC 44

4.  AIR 1978 All 303 

5.  1995 ACJ 253, AIR 1994 Ker 289

6.  A.I.R. 2012 (NOC) 83 (Ori.).

7.  AIR 1971 Ker 197

8.  1967] SCR 460

9.  60 Mass. 292 (1850)

10.https://blog.ipleaders.in/negligence-in-the-law-of-torts/#:~:text=Definition%20of%20Negligence&text=In    %20Blyth%20v.,reasonable%20man%20would%20not%20do.

11.https://www.lawteacher.net/problem-question-examples/tort-of-negligence-problem-question-2.php

12. http://lawtimesjournal.in/negligence-2/#_ftn3 

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Avni Mehra

Student, ICFAI University, Dehradun

Avni Mehra is a passionate law student who is ready to learn and face new challenges. As an avid reader and researcher, her interest areas include business law, criminal law and family law. She is enthusiastic, knowledge seeker and a hard worker. For any clarification, suggestion or advice you can reach her at avnimehra38@gmail.com

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