Negligence As A Tort: Meaning Essentials And Defences

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Author : Rajibhassan
Published on : October 02, 2012


  
Rajibhassan's Profile and details
Rajib Hassan LL.B[Hons], LL.M., UGC NET, Ph.D Scholar

Negligence As A Tort: Meaning Essentials And Defences: An Overview

I. MEANING: In everyday usage, the word ‘negligence’ denotes mere carelessness. In legal sense it signifies failure to exercise standard of care which the doer as a reasonable man should have exercised in the circumstances. In general, there is a legal duty to take care when it was reasonably foreseeable that failure to do so was likely to cause injury. Negligence is a mode in which many kinds of harms may be caused by not taking such adequate precautions.

II. DEFINITION:
· WINFIELD AND JOLOWICZ: According to Winfield and Jolowicz- Negligence is the breach of a legal duty to take care which results in damage, undesired by the defendant to the plaintiff [Ref. Winfield and Jolowicz on Tort, Ninth Edition, 1971, p. 45].

· In Blyth v. Birmingham Water Works Co., (1856) LR 11 Exch. 781; ALDERSON, B. defined negligence as, negligence is the omission to do something which a reasonable man…….. would do, or doing something which a prudent or reasonable man would not do.

· In Lochgelly Iron & Coal Co. v. Mc Mullan, 1934 AC 1; LORD WRIGHT said, negligence means more than headless or careless conduct, whether in commission or omission; it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing.

III. ESSENTIALS OF NEGLIGENCE: - In an action for negligence, the plaintiff has to prove the following essentials:

1. DUTY TO TAKE CARE: One of the essential conditions of liability for negligence is that the defendant owed a legal duty towards the plaintiff. The following case laws will throw some light upon this essential element.

· In Grant v. Australian Knitting Mills Ltd., 1935 AC 85; the plaintiff purchased two sets of woolen underwear from a retailer and contacted a skin disease by wearing an underwear. The woolen underwear contained an excess of sulphates which the manufacturers negligently failed to remove while washing them. The manufacturers were held liable as they failed to perform their duty to take care.

2. DUTY TO WHOM: Donoghue v. Stevenson, 1932 AC 562 carried the idea further and expanded the scope of duty saying that the duty so raised extends to your neighbour. Explaining so as to who is my neighbour LORD ATKIN said that the answer must be “the persons who are 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 which are called in question”.

3. DUTY MUST BE TOWARDS THE PLAINTIFF- It is not sufficient that the defendant owed a duty to take care. It must also be established that the defendant owed a duty of care towards the plaintiff.
· In Bourhill v. Young, 1943 AC 92; the plaintiff, a fishwife, alighted from a tram car. While she was being helped in putting her basket on her back, a motor-cyclist after passing the tram collided with a motor car at the distance of 15 yards on the other side of the tram and died instantly. The plaintiff could see neither the deceased nor the accident as the tram was standing between her and the place of accident. She had simply heard about the collision and after the dead body had been removed she went to the place and saw blood left on the road. Consequently, she suffered a nervous shock and gave birth to a still-born child of 8 months. She sued the representatives of the deceased motor-cyclist. It was held that the deceased had no duty of care towards the plaintiff and hence she could not claim damages.

4. BREACH OF DUTY TO TAKE CARE: Yet another essential condition for the liability in negligence is that the plaintiff must prove that the defendant committed a breach of duty to take care or he failed to perform that duty.
· In Municipal Corporation of Delhi v. Subhagwanti, AIR 1966 SC 1750; a clock-tower in the heart of the Chandni Chowk, Delhi collapsed causing the death of a number of persons. The structure was 80 years old whereas its normal life was 40-45 years. The Municipal Corporation of Dellhi having the control of the structure failed to take care and was therefore, liable.

· In Municipal Corporation of Delhi v. Sushila Devi, AIR 1999 SC 1929; a person passing by the road died because of fall of branch of a tree standing on the road, on his head. The Municipal Corporation was held liable.

5. CONSEQUENT DAMAGE OR CONSEQUENTIAL HARM TO THE PLAINTIFF: The last essential requisite for the tort of negligence is that the damage caused to the plaintiff was the result of the breach of the duty. The harm may fall into following classes:-
· physical harm, i.e. harm to body;
· harm to reputation;
· harm to property, i.e. land and buildings and rights and interests pertaining thereto, and his goods;
· economic loss; and
· mental harm or nervous shock.
· In Achutrao Haribhau Khodwa v. State of Maharashtra (1996) 2 SCC 634; a cotton mop was left inside the body by the negligence of the doctor. The doctor was held liable.

IV. DEFENCES FOR NEGLIGENCE: In an action for negligence following defences are available:-

1. CONTRIBUTORY NEGLIGENCE: It was the Common law rule that anyone who by his own negligence contributed to the injury of which he complains cannot maintain an action against another in respect of it. Because, he will be considered in law to be author of his wrong.

· Butterfield v. Forrester, (1809) 11 East 60; the defendant had put a pole across a public thoroughfare in Durby, which he had no right to do. The plaintiff was riding that way at 8’O clock in the evening in August, when dusk was coming on, but the obstruction was still visible from a distance of 100 yards, he was riding violently, came against the pole and fell with the horse. It was held that the plaintiff could not claim damages as he was also negligent.

2. ACT OF GOD OR VIS MAJOR: It is such a direct, violent, sudden and irresistible act of nature as could not, by any amount of human foresight have been foreseen or if foreseen, could not by any amount of human care and skill, have been resisted. Such as, storm, extraordinary fall of rain, extraordinary high tide, earth quake etc.

· In Nichols v. Marsland, (1875) LR 10 Ex.255; the defendant had a series of artificial lakes on his land in the construction or maintenance of which there had been no negligence. Owing to an exceptional heavy rain, some of the reservoirs burst and carried away four country bridges. It wa held that, the defendant was not liable as the water escaped by the act of God.

3. INEVITABLE ACCIDENT: Inevitable accident also works as a defence of negligence. An inevitable accident is that which could not possibly, be prevented by the exercise of ordinary care, caution and skill. it means accident physically unavoidable.

· In Brown v. Kendal, (1859) 6 Cussing 292; the plaintiff’s and defendant’s dogs were fighting, while the defendant was trying to separate them, he accidentally hit the plaintiff in his eye who was standing nearby. The injury to the plaintiff was held to be result of inevitable accident and the defendant was not liable.

· In Holmes v. Mather, (1875) LR 10 Ex.261, 267; a pair of horses were being driven by the groom of the defendant on a public highway. On account of barking of a dog, the horses started running very fast. The groom made best possible efforts to control them but failed. The horses knocked down the plaintiff who was seriously injured, it was held to be an inevitable accident and the defendant was not liable.

· In Stanley v. Powell, (1891) 1 QB 86; the plaintiff and the defendant, who were members of a shooting party, went for pheasant shooting. The defendant fired at a pheasant, but the shot from his gun glanced off an oak tree and injured the plaintiff. It was held that the accident was an inevitable accident and the defendant was not liable.

BOOKS REFERRED:
1. Dr. S.K. Kapoor, Law of Torts and Consumer Protection Act, 6th Edition 2003; Published by Central Law Agency, Allahabad.
2. M.N. Shukla, The Law of Torts and Consumer Protection Act, 18th Edition 2010; Published by Central Law Agency, Allahabad.
3. R.K. Bangia, Law of Torts , 19th Edition, 2008, Publisher: Allahabad Law Agency.
4. Ratanlal and Dhirajlal, The Law of Torts, 24th Edition 1997 Reprint 2002; Published by Wadhwa and Company, Nagpur, India.
5. B.M. Gandhi, Law of Torts, Third Edition 2006 Reprint 2010; Published by Eastern Book Company, Lucknow, India.

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