Negligence

Background:

Negligence denotes mere “carelessness”. The word signifies a failure to exercise a standard of care which a reasonable man should have exercised in the circumstances.

In a legal sense, it’s a duty to take care when it is reasonably foreseeable that failure to do so is likely to cause injury.

Principles of Negligence derived its origin from the following English case law:

Donoghue v. Stevenson (UKHL 100, SC (HL) 31, AC 562, All ER Rep 1):

In the above case, the defendant (STEVENSON) purchased a bottle of ginger beer from a retailer for the appellant (Mrs. DONOGHUE). The Appellant consumed it and seriously suffered in her health. She found a decomposed snail at the bottom of the bottle and sued for the compensation.

The defendant in the House of Lords pleaded that he did not owe any duty of care towards the plaintiff.

The House of Lords in the decision held that the manufacturer owed her a duty of care that the bottle did not contain any kind of noxious matter and that manufacturer would be liable on the breach of his duty.

Ingredients of Negligence:

  • The defendant owed a duty of care to the plaintiff
  • The defendant breached that duty and
  • As a result of the breach, the plaintiff suffered damage.
  1. Duty of care:

Duty of care means a legal duty rather than mere social, religious, or moral duty. It differs case to case whether a duty exists or not.

  1. Breach of duty:

Breach of duty means the defendant has not observed due care that’s required in a specific situation.

So, in order to ascertain that due care was the observed determination of standard of care required:

  • The seriousness of injury caused comparatively to the importance of act causing it i.e. at times negligence is very small but the importance of activity which is carried out is large.

For example:

  • Once a restaurant was flooded with by rain and the owner tried his best to get the water out of the restaurant and made sure that the floor dried up absolutely but there was still some water at the entrance of the restaurant and the plaintiff (a customer) just slipped over the floor and he asked the restaurant to be shut down but the court in the case held that the seriousness of risk was just too small.
  • The magnitude of risk i.e. the duty of care differs according to the magnitude of risk.

For example:

There was a child who went to a park and saw a tree that had poisonous fruits and being a child, he got tempted towards those fruits, and as he ate that he died. The court in this case held that the fruit was poisonous then the park authorities should have put a notice or warning in the park that fruits were poisonous. So, there was Negligence on part of the park authorities.

  • Consideration for which services, etc. are offered.
  • DAMAGE:
  • It is necessary that the tortfeasor’s breach of duty must cause damage to the plaintiff.
  • Damage must not be reasonably foreseeable.
  • Damage should not be too remote.

Let’s elaborate it with an example:

Wagon Mound Case:

(Overseas Tankship (UK) Ltd. v. Mort Dock and Engineering). (1961) AC 388.

So, in this case, OT. Ltd was charterers by a ship named, Wagon Mound an oil-burning vessel. One day, the wagon mound stopped at the C.oil Co.’s wharf in Sydney harbour to take on fuel oil and because of the negligent act of one of the OT. Ltd.’s servant, a large quantity of fuel oil got split into the water and after a few hours the oil was spread to MD LTD’s wharf about 600 feet away from another ship, the Corrimal was under repair. While welding the Corrimal the MD Ltd.’s manager realized about the presence of the oil, so then and there they stopped the welding operation.

Two days later, the oil caught fire, and MD LTD’s wharf was brutally damaged. The plaintiff (MD LTD) brought the case to the court and sued the defendant (OT LTD).

In the High court, the judge applied Re polemis, and the defendant was found liable as he was considered responsible for his negligent act.

At the court of appeal, the case was appealed by the defendant and disapproved of the direct consequence test in Re polemis. The court held that OT. LTD couldn’t be held liable to pay the compensation for the damages to the wharf.

  • RES IPSA loquitor (the thing speaks for itself).

Rule of innocent until proven guilty is reversed. Act causing injury itself raises a strong presumption of negligence on the part of the tortfeasor.

ELEMENTS:

  1. Incident occurred
  2. It caused injury
  • The defendant was in direct control of things that lead to an accident.

For e.g.: A surgeon left a scissor inside the stomach of the patient after an operation.

Types of Negligence:

Though there are many types of Negligence the most common can be the following ones:

  1. Contributory Negligence
  2. Composite Negligence

Contributory negligence:

Contributory negligence means when the plaintiff fails to exercise reasonable care for his safety.

So, it’s a defense often used by the defendant.

Following are the points that are covered under contributory negligence:

  • If there is negligence on the part of the plaintiff, then he/she cannot sue the defendant for the injury caused to the plaintiff.
  • Contributory negligence can at times be pleased as a complete defense as well.
  • It can also be used for reducing damages to a particular extent.

So, it depends on how graver is the contribution to the negligent act by the plaintiff and lesser the damages would be.

Let’s simplify it more with the help of an example:

In a situation where normally, a person would be entitled fully 100% damages but if the plaintiff has been found guilty of contributing towards the negligent act then he would only get a part out of the full (i.e.) 50% of the total damages.

  • The doctrine of the last opportunity:

The doctrine basically states that a situation where a person has the last opportunity to avoid any kind of injury is responsible for any damage arising out of the injury.

Related case:
Butterfield v. Forrester (1809) 103 E.R. 926:

In this case, the defendant negligently left a pole across the highway road and the plaintiff too was driving extremely carelessly did not notice that pole and gone through an accident.

Court held that the plaintiff could not recover damages from the defendant as he himself failed to take reasonable care and contributed to causing the act and that if he drove carefully he could have easily avoided the accident to happen because he had the last opportunity to do that.

Composite negligence:

Composite negligence is negligence wherein 2 parties contribute to the injury of a third party.

So, basically both the parties are responsible for the 3rd party and they are supposed to pay the compensation.

Related case:
New India Assurance Company Ltd, (2015) 9 SCC 273

In the case of New India Assurance Company Ltd, (2015) 9 SCC 273, Supreme Court had held that “In the case of composite negligence, the plaintiff/claimant is entitled to sue both or any one of the joint tortfeasors and to recover the entire compensation as a liability of joint tortfeasors is joint and several”.


Author:

zapan chawla Zapan Chawla

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