NEGLIGENCE UNDER TORT

WHAT IS NEGLIGENCE

Under the law of torts, negligence means a breach of legal duty of care by the defendant which results in undesired damage to the plaintiff.

In the law of torts, negligence has two meanings. 

• Negligence as an independent tort
• Negligence as a mode to commit another tort

Firstly, it is considered as a mode of committing certain torts such as carelessly or negligently committing trespass, nuisance, defamation, etc. In this context, it basically denotes the mental element. 

Secondly, it is considered a separate tort, which means a conduct which creates a risk of causing damage, rather than a state of mind.

ESSENTIALS OF NEGLIGENCE

Negligence under torts has three essentials :

• The defendant owes a duty towards the plaintiff
• The defendant has committed a breach of duty      
• The plaintiff suffered damage as a consequence

Therefore, in an action for negligence, the plaintiff has to prove that the defendant owed duty of care to the plaintiff, he made a breach of that duty and as a consequence of his acts the plaintiff suffered damages. Therefore, as soon as these essential will be proved by the plaintiff, the defendant will be made liable for the offence he had committed.

DUTY TOWARDS THE PLAINTIFF

It is one of the essential conditions of negligence in order to make the person liable. It means that every person owes, a duty of care, to another person while performing an act. Although this duty exists in all acts, but in negligence, the duty is legal in nature and cannot be illegal or unlawful and also cannot be of moral, ethical or religious nature.

CASE STUDY

Stansbele vs. Troman [1948]

A decorator was engaged to carry out decorations in a house. Soon after The decorator left the house without locking the doors or informing anyone. During his absence, a thief entered the house and stole some property the value of which the owner of the house claimed from the decorator. It was held that the decorator was liable as he was negligent in leaving the house open and failed his duty of care.

CASE STUDY

Donoghue vs. Stevenson [1932]

On the 26 August, 1928, May Donoghue and a friend were at a café in Glasgow, Scotland. Donoghue's companion ordered and paid for her drink. The cafe purchased the product from a distributor that purchased it from Stevenson. The ginger beer came in a Dark bottle, and the contents were not visible from the outside. Donoghue drank some of the contents and her friend lifted the bottle to pour the remainder of the ginger beer into the tumbler. The remains of a snail in a state of decomposition dropped out of the bottle into the tumbler. She was unsuccessful at trial and appealed the decision to the House of Lords. Finally, her claim was successful.

Court held that the manufacturers owe the final consumer of their product a duty of care. There need not be a contractual relationship, or privity, in order for the final consumer to sue in negligence.

DEFENDANT COMMITTED A BREACH OF DUTY

It’s not enough for a plaintiff to prove that the defendant owed him a duty of care but he must also establish that the defendant breached his duty to the plaintiff. A defendant breaches such a duty by failing to exercise reasonable care in fulfilling the duty. In other words, the breach of a duty of care means that the person whohas an existing duty of care should act wisely and not omit or commit any act which he has to do or not do.

CASE STUDY

Ramesh Kumar Nayak vs. Union of India [1994]

The post authorities failed to maintain the compound wall of a post office in good condition on the collapse of which the defendant sustained injuries. It was held that postal authorities were liable since that had a duty to maintain the post office premises and due to their breach of duty to do so, the collapse occurred. Hence they were liable to pay compensation

PLAINTIFF SUFFERED DAMAGE AS A CONSEQUENCE

Proving that the defendant failed to exercise reasonable care is not enough. It should also be proved that the failure of the defendant to exercise reasonable care resulted in damages to the plaintiff to whom the defendant owed a duty of care. 

The harm may be of any type such as bodily harm, harm to the reputation, harm to property, financial Loss, mental harm, etc. When such damage is proved, the defendant is bound to compensate the plaintiff for the damages occurred.

CASE STUDY

Joseph vs. Dr. George Moonjely [1994]

The Kerala high court awarded damages amounting to Rs 1,60,000 against a surgeon for performing an operation on a 24-year-old girl without following proper medical procedures and not even administering local anaesthesia.

RES IPSA LOQUITER

Res ipsa loquitur is a Latin phrase that means “the thing speaks for itself.”It is considered to be a type of circumstantial evidence which permits the court to determine that the negligence of the defendant led to an unusual event that subsequently caused injury to the plaintiff. Although generally the duty to prove that the defendant acted negligently lies upon the plaintiff but through res ipsa loquitur, if the plaintiff presents certain circumstantial facts, it becomes the burden of the defendant to prove that he was not negligent.

ESSENTIALS OF RES IPSA LOQUITER

• The thing is under the exclusive control and management of defendant
• Without negligence of defendant the accident would not occur
• The defendant has no explanation

CASE STUDY

Byrne vs. Boadle [1863]

The plaintiff was walking by a warehouse on the road and suffered injuries from a falling barrel of flour which rolled out of a window from the second floor. 

At the trial, the plaintiff’s attorney argued that the facts spoke for themselves and demonstrated the warehouse’s negligence since no other explanation could account for the cause of the plaintiff’s injuries.

DEFENCES WHICH CAN BE TAKEN FOR TORT OF NEGLIGENCE

• Act of God
• Inevitable Accident
• Contributory Negligence