Negligence

Generally speaking one is responsible for the direct consequences of his negligent acts where he is placed in such a position with regard to another that it is obvious that if he does not use due care in his own conduct he will cause injury to another.

Negligence has two meanings in law of torts:

(1) Negligence as state of mind- Negligence is a mode of committing certain torts, e.g. negligently or carelessly committing trespass, nuisance or defamation. This is the subjective meaning of negligence advocated by the Austin, Salmond and Winfield.

(2) Negligence as a type of conductNegligence is a conduct, not a state of mind- conduct, which involves the risk of causing damage. This is the objective meaning of negligence, which treats negligence as a separate or specific tort.

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 ordinary care or skill, by which neglect the plaintiff has suffered injury, to his person or property [Heaven v Pender (1883) 11 Q.B.D. 503].

In an action for negligence, the plaintiff has to prove the following essentials:

(1) That the defendant owed duty of care to the plaintiff.

(2) The defendant made a breach of the duty i.e. he failed to exercise due care and skill.

(3) Plaintiff suffered damage as a consequence thereof.

(1) Duty of Care to the Plaintiff

(i) It means a legal duty rather than mere moral, religious or social duty. It is not sufficient to show that the defendant was careless; the plaintiff has to establish that the defendant owed to the plaintiff a specific legal duty to take care. In Donoghue v Stevenson (1932) A.C. 562, the appellant plaintiff drank a bottle of ginger beer which was brought from a retailer by her friend. The bottle in fact contained the decomposed body of snail, which was found out by her when she had already consumed a part of the contents of the bottle. The bottle was of dark opaque glass sealed with a metal cap so that its contents could not be ascertained by inspection, Held that the manufacturer of the bottle was responsible for his negligence towards the plaintiff. According to Lord Atkin: “A manufacturer of products, which he sells in such form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination and with the knowledge that the absence of the reasonable care in the preparation or putting up of the products will result in an injury to consumer’s life or property, owes a duty to the customer to take that reasonable care.”

The House of Lords also rejected the plea that there was no contractual relationship between the manufacturer and plaintiff. Lord Atkin said: “The rule that you are to love your neighbour becomes in law ‘you must not injure your neighbour’. Neighbours are persons so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions in question.”

(ii) Whether the defendant owes a duty to the plaintiff or not depends on reasonable foreseeability of the injury to the plaintiff. In Heaven v Pender, held that the duty arises only if a person is near to the person or property of another.

A useful test to decide culpability is to determine what a ‘reasonable man’ (i.e. a man of ordinary prudence or intelligence) would have foreseen and behaved under the circumstances. The standard of foresight of the reasonable man is an impersonal or objective test as it is independent of the idiosyncrasies (patterns of behaviour) of the particular person whose conduct is in question. The reasonable man is presumed to be free both from over-apprehension and from over-confidence. However, the standard of care of the reasonable man involves in its application a subjective element.

In Rural Transport Service v Bezlum Bibi (AIR 1980 Cal 165), the conductor of an overloaded bus invited passengers to travel on the roof of the bus. On the way the bus swerved on the right side to overtake a cart. One of the passengers on the roof of the bus was struck by an overhanging branch of a tree. He fell down and died because of injuries. Held that there was negligence on the part of both the driver and conductor of the bus.

In Sushma Ultra v M.P. State Road Transport Corpn. (1947 A.C. J. 87 (M.P.). the plaintiff was resting her elbow on the window sill. A truck coming from the opposite direction hit her in her elbow as a result of which she received severe injuries. It was held that the habit of resting elbow on the widow of the bus is so common that it must enter into contemplation of a reasonable driver. It is the duty of the driver to pass on the road at a reasonable distance front the other vehicles.

If the gates of a railway crossing are open and a truck trying to cross the railway line is hit by an incoming train, the Railway administration is liable for the same. There was negligence on the part of the administration in not closing the level crossing gate when the train was about to arrive.

(iii) When the injury to the plaintiff is not foreseeable, then the defendant is not liable.

In Glasgow Corpn. v Muir (1943) 2.A11.E.R. 44, the managers of the defendant corporation tearooms permitted a picnic party to have their food in the tearoom. Two members of the picnic party were carrying a big urn containing 6-9 gallons of tea to a tearoom through a passage where some children were buying sweets and ice creams. Suddenly one of the persons lost the grip of the handle of urn and six children including the plaintiff, were injured. Held that the managers could not anticipate such an event and, therefore, she had no duty to take precautions. Hence, neither she nor the corporation could be held liable for injury.

(iv) To establish negligence it is not enough to prove that the injury was foreseeable, but a reasonable likelihood of the injury has also to be shown. The duty is to guard against reasonable probabilities rather than bare or remote or fantastic possibilities.

In Fordon v Harcourt (1932) 146 L.T. 391. The defendant parked his car by the roadside and left a dog inside the car. The dog jumped out and smashed a glass panel. A splinter from this glass injured the plaintiff while he was walking past the car. Held that the accident being very unlikely, the defendant was not liable. Similarly if a plug in a pipeline, which has been working satisfactorily, bursts because of exceptionally severe frost which could not have been anticipated, and the water floods the premises of the plaintiff, the plaintiff cannot bring an action for negligence [Birth v Birmingham Waterworks Co. (1856) 11 E. 781].

In Bolton v Stone (1951) A.C. 850, a person on road was injured by a ball hit by a player on a cricket ground abutting on that highway. The ground had been used for 90 years and during the last 30 years the ball had been hit in the highway on about six occasions but no one had been injured. Held that the defendants (committee and members of cricket club) were not negligent.

(v) When the defendant owed a duty of care to persons rather than the plaintiff, the plaintiff cannot sue even if he might have been injured by the defendant’s act. Thus, the duty must be owed to the plaintiff.

In Palsgraff v Long Island Railroad Co. (1928) 284 N.Y. 339, a passenger carrying a package was trying to board a moving train. He seemed to be unsteady as if about to fall. A railway guard, with an idea to help him, pushed him from behind. In this act, the package (of fireworks) fell resulting in an explosion; as a result of which the plaintiff was injured. Held that the guard if negligent to the holder of the package was not negligent in relation to the plaintiff standing far away (about 25 feet).

The proximity in relationship (i.e. parties are so related that it is just and reasonable that the duty shall exist) is also necessary in an action for negligence. In Hill v Chief Constable, West Yorkshire (1988) 2 All ER 238, the Constable was held not liable to the mother who lost her child at the hands of a murderer who couldn’t be detected for his earlier murders on account of errors in investigation.

(vi) Duty in medical professionA surgeon does not undertake that he will perform a cure, nor does he undertake to use the highest possible degree of skill; but he undertakes to bring a fair, reasonable, and competent degree of skill.

A doctor when consulted by a patient owes him certain duties, wiz. a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give and a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient (Philips India Ltd. v Kunju Punnu AIR 1975 Bom 306).

(2) Breach of Duty

It means not taking due care which is required in a particular case. The law requires taking of two points into consideration to determine the standard of care required:

(i) The importance of the object to be attainedThe law permits taking chance of some measure of risk so that in public interest various kinds of activities should go on.

In Latimer v A.E.C. Ltd. (1953) A.C. 643, due to heavy rain a factory was flooded with water, which got mixed with some oily substance. The floors in the factory became slippery. The factory owners spread all the available sawdust but some oily patches still remained there. The plaintiff slipped and was injured. He sued the defendants and contented that, as a matter of precaution the factory should have been closed down. Held that the risk created was not so great as to justify that precaution. The defendants had acted reasonably and, therefore, they were not liable.

(ii) The magnitude of the riskThe degree of care varies according to the likelihood of harm and seriousness of injury. The driver of a vehicle has to observe greater care when he is passing through a school zone, or he finds a blind man, a child or an old man.

In Glasgow Corporation v Taylor (1922) 1 A.C. 44, poisonous berries were group in a public garden under the control of the defendant corporation. The berries looked like cherries. A child, aged 7, ate those berries and died. It was found that the shrub bearing the berries was neither properly fenced nor a notice regarding poisonous berries was displayed. Held that the defendants had not taken proper care and so were liable.

(3) Damages

It is also necessary that the defendant’s breach of duty must cause damage to the plaintiff. The plaintiff has also to show that the damage thus caused is not too remote a consequence of the defendant’s negligence.

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