NEGLIGENCE : DEFINITION AND ELEMENTS9 min read

BY : Simran Gupta

In everyday life, the word ‘carelessness’ amounts to nothing else except for inconsiderateness. Under the lawful sense, it features the inability to play out the fundamental of care which the entertainer as a sensible man ought to perform have in all the circumstances.

Definition of Negligence

According to Winfield and Jolowicz, Negligence is the breach of a legal duty of care by theplaintiff which results in undesired damage to the plaintiff.

In Blyth v. Birmingham Water Works Co, Negligence was defined as the omission to dosomething which a reasonable man would do or doing something which a prudent or reasonableman would not do.

Illustration

Z, A owner  of a major canine demands his companion X to deal with the canine while he is away. X leaves the canine unattended who assaults a bystander seriously harming him. Here it will be said that the demonstration happened because of the carelessness of X.

Elements of Negligence

  1. Duty of Care

It is one of the basic states of carelessness so as to make the individual obligated. It implies that each individual owes, an obligation of care, to someone else while playing out a demonstration. In spite of the fact that this obligation exists in all demonstrations, however in carelessness, the obligation is lawful in nature and can’t be illicit or unlawful and furthermore can’t be of good, moral or strict nature.

In the case of  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 theowner 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.

2.The Duty must be towards the plaintiff

 An obligation emerges when the law perceives a connection between the respondent and the offended party and requires the litigant to act in a specific way toward the offended party. It isn’t adequate that the respondent owed an obligation of care towards the offended party yet it should likewise be built up which is typically dictated by the adjudicator.

In the case of  Bourhill v. Young (1943) the offended party who was a fishwife got down from a cable car carand while she was being helped in putting her bushel on her back, an engine cyclist in the wake of passing the cable car slammed into an engine vehicle a good ways off of 15 yards which was on the opposite side of the cable car. The motorcyclist kicked the bucket right away and the offended party couldn’t observer the mishap or the dead body since the cable car was remaining among her and where the mishap happened. She had just heard the sound of the impact and once the body had been taken out from the spot of mishap, she visited the spot and saw some blood which was left out and about. As a response to this episode, she endured an apprehensive stun and brought forth a despite everything conceived offspring of 8 months in light of which she sued the delegates of the perished motorcyclist. It was held that the perished had no obligation of care towards the defendant and in this way she was unable to guarantee any harms from the expired’s delegates.

The case of Donoghue v. Stevenson (1932) has evolved the principle that we each have a duty ofcare to our neighbor or someone we could reasonably expect to be affected by our acts oromissions. It was held that, despite no contract existed between the manufacturer and the personsuffering the damage an action for negligence could succeed since the plaintiff was successful inher claim that hat she was entitled to a duty of care even though the defective good i.e a bottle ofginger beer with a snail in it was bought, not by herself, but by her friend.

3) Breach of Duty to take care

It’s not enough for a plaintiff to prove that the defendant owed him a duty of care but he mustalso 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 who has an existing duty of care should act wisely and not omit or commit any act which he has to door not do as said in the case of Blyth v. Birmingham Waterworks Co, (1856). In simple terms, itmeans non-observance of a standard of care.

In the case of Municipal Corporation of Delhi v. Subhagvanti (AIR 1966)A very old clock tower situated right in the middle of a crowded area of Chandni Chowksuddenly collapsed thereby causing the death of many people. The clock tower was 80 years oldalthough the normal life span of the clock tower should have been 40-45 years. The clock towerwas under the control of The Municipal Corporation of Delhi and they had a duty of caretowards the citizens. By ignoring to repair the clock tower, they had breached their duty of caretoward the public and were thereby liable.

4) Actual cause or cause in fact

In this situation, the offended party who is suing the respondent for carelessness has the obligation to demonstrate  is that the litigant’s infringement of obligation was the real reason for the harms acquired by him. This is frequently called the “however for” causation which implies that, yet for the respondent’s activities, the offended party would not have acquired the harms.

In the case of Joseph vs Dr. George Moonjely(1994) The Kerela high court awarded damagesamounting to Rs 1,60,000 against a surgeon for performing an operation on a 24-year-old girlwithout following proper medical procedures and not even administering local anaesthesia.

Res ipsa loquitur

Res ipsa loquitur is a Latin phrase that means “the thing speaks for itself.”It is viewed as a sort of conditional proof which allows the court to establish that the carelessness of the respondent prompted an uncommon occasion that thusly made injury the offended party. Albeit for the most part the obligation to demonstrate that the respondent acted carelessly lies upon the offended party yet through res ipsa loquitur, if the offended party presents certain incidental realities, it turns into the weight of the litigant to demonstrate that he was not careless.

This doctrine arose out of the case of Byrne vs Boadle(1863)

The plaintiff was walking by a warehouse on the road and suffered injuries from a falling barrelof flour which rolled out of a window from the second floor. At the trial, the plaintiff’s attorneyargued 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.

Thus the following are the three essential requirements for the application of this maxim-

  1. The thing causing the damage must be under the control of the defendant or his servants
  2. The accident must be such as would not have happened in the ordinary course of things

without negligence.

  • There must be no evidence of the actual cause of the accident.

Contributory negligence

Contributory carelessness essentially implies obliviousness from both the gatherings in question. In the event that an individual is driving a vehicle with no breaks met with a mishap with someone else who was driving on an inappropriate roadside. This outcomes in contributory carelessness. It’s a guard accessible to the litigant if there should arise an occurrence of contributory carelessness which forestalls the offended party to get pay. Contributory carelessness is the obliviousness of due consideration with respect to the offended party to dodge theconsequences of the litigant’s carelessness. This idea is approximately founded on the saying “Volenti non fit injuria” (injury continued intentionally).

Principles of contributory negligence

  • If the plaintiff is himself negligent for taking due care in order to avoid consequencesand becomes the direct cause of the damages, he is not entitled to receive anycompensation.
  • If both the plaintiff and the defendant have taken reasonable measure and ordinary care to such extent where they both wanted to avoid such consequences then theplaintiff can’t sue the defendant.

S.M. Railway Co. Ltd. v. Jayammal, (1924)

In the instant case, a 7-year-old girl was knocked down by an engine while crossing the railway

line. She was held responsible for the damages as she was capable of understanding the danger

and discrimination while crossing the railway line.

Defenses available in a suit for negligence

1)Contributory negligence by the plaintiff

Contributory negligence implies that when the prompt reason for the harm is simply the carelessness of the offended party, the offended party can’t sue the litigant for harms and the respondent can utilize it as a safeguard. This is on the grounds that the offended party in such a case is viewed as the creator of his own wrong. It depends on the saying volenti non fit iniuria which expresses that on the off chance that somebody readily puts themselves in a position which may bring about mischief, they are not qualified for guarantee for harms brought about by such damage.

In the case of Shelton Vs L & W Railway(1946), while the plaintiff was crossing a railway line, aservant of the railway company who was in charge of crossing shouted a warning to him. Due tothe plaintiff being deaf, he was unable to hear the warning and was consequently injured. Thecourt held that this amounted to contributory negligence by him.

2) An Act of God

An Act of God is an immediate, brutal and abrupt demonstration of nature which by any measure of human foreknowledge could have been predicted and whenever anticipated couldn’t by any measure of human consideration and aptitude have been stood up to. Along these lines such acts which are brought about by the fundamental powers of nature go under this class. For instance storm, whirlwind, remarkable elevated tide, unprecedented precipitation and so forth.

In the case of Nichols v. Marsland (1876) in which thedefendant had a series of artificial lakes on his land. There had been no negligence on the part ofthe defendant in the construction and maintenance of the artificial lakes. Due to unpredictableheavy rain, some of the reservoirs burst and swept away four country bridges. It was held by thecourt that the defendant could not be said to be liable since the water escaped by the act of God.

3) Inevitable Accident

An inevitable accident can also be called as a defense of negligence and refers to an accident that

had no chance of being prevented by the exercise of ordinary care, caution, and skill. It means a

physically unavoidable accident.

In the case of Brown v. Kendal (1850) the plaintiff’s and defendant dogs were fighting and their

owners attempted to separate them. In an effort to do so, Defendant beat the dogs with a stickand accidentally injured the Plaintiff, severely injuring him in the eye. The Plaintiff brought suitagainst the Defendant for assault and battery. It was held that the injury of the plaintiff was as aresult of an inevitable accident.

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