A Critical Study of Negligence

8/2/2019 A Critical Study of Negligence

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A critical study of negligencewith reference to legal profession

Subject: law of torts

Submitted to: prof

Submitted by: poornima solanki

Reg.no:

Nalsar university of law


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Contents

Page no

1. Table of cases

2. List of abbreviations

3. Negligence

3.1History

3.2Introduction

3.3Definition

4. Essentials of negligence

5. Negligence-proof

6. Professional negligence

7. Negligence - defences

8. Conclusion

9. Bibliography


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3. Negligence

3.1 History

Negligence was rarely recognized and was scarcely treated as a separate tort before

the nineteenth century. Law of torts treats negligence in a completely different

manner , according to the English law , law of torts is based on two principles

1. All the injuries done to another person are torts , unless there is some justification

recognized by law

2. There is definite number of torts outside which liability in tort does not exist

The negligence of tort is breach of duty by one person to another , the famous

landmark case of Donoghue v Stevenson :

In this case the claimant Donoghue consumed a part of a ginger beer which

contained a decomposed snail ,the snail was not visible because the bottle was

opaque ,and sued the manufacturer Mr. Stevenson.

Prior to this case the word was used for very general sense which described the

breach of any lagal obligation , or to designate a mental element ,usually one of

inadvertence or indifference ,entering into the commission of other torts.

Some writers considered that negligence was merely one way of commiting

other torts , and itself had no particular legal importance . but for more than a

century ,it has received more or less general recognition as an independent basisof liability , with distinct features of its own , differing on the other hand from

intentional torts ,and on the other from those on which strict liability is imposed.

One of the earliest appearances of torts what we know as negligence was in

liability of those who were competent in certain public callings. A carrier , an

innkeeper, innkeeper , an black smith , or a surgeon, was regarded as holding

himself out to the public to the public as one in whom confidence might be reposed,

and hence as assuming an obligation to give proper service , breach of which by any

negligent conduct he might be liable.

In the field of trespass and nuisance,the notion also developed ,thinly disguised

,that there might be liability for the negligence; and in later years the action on the

case produced a large ,undigested group of situations in which negligence aws the

essence of tort.


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3.2 Introduction

Introduction

Consider following examples first:

A cyclist knocked down and killed by a speeding car

A junior doctor mistakenly gives wrong antibiotic to the patient

A child falls down in the manhole which was left uncovered by the municipal

Corporation.

In each of the above example the injury caused appears to be a fault someone other than the

injured party, the speeding car, doctor, and municipal corporation all of them have been

negligent in some in some way and considered as they have acted carelessly or neglectfully.

Now all of these people are liable for the damages in the tort of negligence defined by Percy

H Winfield as breach of legal duty to take care by an inadvertent act or omission that injures

another.

It is important to distinguish between negligence in the former every day or colloquial sense

and it is synonymous with carelessness and neglect. And negligence in the legal sense- that is

the type of liability which the law imposes to the people who fall below the standard of care

imposed by law. Not all actions which are negligent in the first case will be negligent in thesecond case it is only sometimes when law wants us to act carefully and it is important

always to bear in mind that a person is not automatically liable for all of the consequences of

their negligent actions.

Negligence in tort law refers to the self- contained tort which, since the landmark case of

Donoghue v Stevenson (1932) , provides a remedy where the injury caused to the injured

party by the wrongdoers failure to keep to the legal duty to take reasonable care.

The tort of negligence plays a central role in the law of tort. This is for two reasons:

(1) It is by far the most important tort in practice. More tort law claims are brought

in the tort of negligence than in any other tort.

(2) Its infl uence extends beyond the tort itself; the ideas and principles of negligence

have infl uenced the interpretation of other torts, for example, in relation

to understandings of intentionally caused harm (FowlervLanning [1959]), the

infusion of the notion of foreseeability into private nuisance and the previously

strict liability imposed by the rule inRylands vFletcher [1868] by the House of

Lords in Cambridge Water Co LtdvEastern Counties Leather plc [1994] and

in defamation where the privilege defences have been redefi ned in terms of the

defendants fault (Reynolds v Times Newspapers [2001]).2


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3.3 Definition

Definition

The jurisprudential concept of negligence defies any precise definition. Eminent jurists and

leading judgements it is said have assigned various meanings to negligence. The apex courtin Jacob Mathew v. state of Punjab observed:

Negligence is the breach of a duty caused by the omission to do something which a

reasonable man , guided by those considerations which ordinarily regulate the conduct of

human affairs would do, or doing something which a prudent and reasonable man would not

do. actionable negligence consists in the neglect of the use of ordinary care or skill toward a

person to whom the defendant owes the duty of observing ordinarycare and skill , by which

neglect the plaintiff has suffered injury to his person or property.

The definition involves three constituents of negligence:

1. A legal duty to exercise due cae on the part of the party complained of towardstheparty complaining the formers conduct within the scope of the duty;

2. Breach of the said duty; and3. Consequential damage.

According to charlesworth and percy ,negligence ,in current fotrensic speech, negligence has

three meanings. These are:

1. A state of mind , in which it is opppised to intention;

2. Careless conduct; and

3. The breach of duty to take care that is imposed by either common or statute law .

All three meanings are applicable in different circumstances but anyone of them does not

necessarily exclude the other meanings.


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4.Essentials of negligence

Essentials

According to Winfield in an action for negligence the plaintiff has to proof thefollowing essentials:

1. Guide the defendant owed duty of care to the plaintiff;

2. The defendant made the breach of the duty; and

3. The plaintiff suffered damage as the consequence there of.

1. Duty of care to the plaintiff

The requirement for establishing a duty of care are as follows:

(i) Duty means a legal duty rather than a mere moral, religious or social duty. The

plaintiff has to establish that the defendant owed to him a specific legal duty to

take care, of which he has made a breach. There is no general rule of law defining

such duty.

Case : Donoghue v. Stevenson: a purchased a bottle of ginger beer from a retailer

for the appellant , a lady friend . after consuming some part of that beer she saw a

decomposed body of a snail and the bottle being opaque she , her friend andthe

Essentials

Duty of care

Breach of duty

Damages


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shopkeeper nobody could see that and she suffered seriously. And she brought an

action against the manufacturer for damage.

Case 2: Grant v Australian knitting mills limited (1936)

Dr. grant ,the plaintiff got dermatitis as as a result of wearing the underpantswhich had been manufactured by defendents knitting mill, the garment contained

an excess of sulphite he wore them entire one week without washing them

beforehand. The council held that the defendant were liable to appellant .

(ii) Foresee ability of a injury: where a defendant owes a duty to the plaintiff or

not depends on reasonable foreseeability of the injury to the plaintiff .if at the time

of the act if defendant fails to prevent the injury to which he was aware makes him

liable.

Case1:Bourhill v. Young

Mr.young was negligently riding a bike along the road and got collided with a car

which coused him fatal injury and mrs.bourhill while riding a tram heard the crash

around 50ft from the accident place and claimed that she just got in a pack of

nerves, she was eight month pregnant that time gave birth to a still born child and

claimed that she had suffered nervous shock,stress and sustained loss due to

mr.young.

Case3: municipal corporation of delhi v. subhagwantiA clock tower situated in the heart of the city that is in the chandni chowk, it

collapsed and caused death of a nember of persons. The structure was 80 years old

whereas its normal life was 40 to 45 years therefore the defendant held liable to

pay compensation for the consequences of the collapse of the structure.

(iii) No foreseeability ,no liability of the defendant

Case 1: cates v.Mongini bros

The plaintiff , a lady visitor to a restaurant was injured by the falling of a ceiling

fan on her. The reason for the falling of the fan was a latent defect in the metal of

the suspension rod of the fan. The defect could not have baan discovered by a

reasonable man.

(iv) Proximity in relationship , which implies that the parties are so related that it

is just a reasonable that the duty should exist.

Case1: Fardon v. Harcourtrivington, the defendant parked his car by the road

side and left a dog inside the car. The dog jumped about and smashed a glass

panel. A splinter from this glass injured the plaintiff while he was walking past the


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car. It was held that the accident, being very unlikely, there was no negligence in

not taking a precaution against it and, therefore, the defendant was not liable.

(v) duty must be towards plaintiff.

Case1: king v Philips:

The defendants servant was negligently backing a taxi-cab into a boy on a tricycle.

The boys mother, who was in an upstairs window, at a distance of about 70 to 80

yards, could only see the tricycle under the taxi-cab and heard the boy scream but

could not see the boy. The boy and the tricycle got slightly damaged but the

mother suffered nervous shock.

(vi) Policy consideration do not negative the existence of the duty.

2. Breach of duty

(i) Importance of the object to be attained

The law permits taking chance of some measure of risk that in the public interest

various kinds of activities should go on.

(ii) The magnitude of the risk

The degree of care varies according to the likelihood of the harm and seriousness

of the injury

A person handling a loaded gun is expected to take more care than a person

carrying a ordinary stick.

3 .The amount of consideration for which services etc. are offered.

3.Damages: Damages may be to the body ,reputaion,property,economic loss and

mental harm or nervous shock.


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5. Negligenceproof

Res Ipsa loquitur: The things speaks for itself.

Case1:Municipal co. of Delhi v. Subhagwanti:A clock tower situated in the heart of the city that is in the chandni chowk, it

collapsed and caused death of a nember of persons. The structure was 80 years old

whereas its normal life was 40 to 45 years therefore the defendant held liable to

pay compensation for the consequences of the collapse of the structure

Case2: mangilal v.parasram

A boy was sitting by the side of the road he was run over by a bus coming on the

wrong side of the road held that the defendant was liable on the principle of res

ipsa loquitur.

It is often said thet negligence must be proved , and never will be presumed. The

mere fact that an accident or an injury has occurred,with nothing more, is not

evidence of negligence on the part of anyone. The fact that a manis found dead

upon a railway track after e train has passed is no proof that the train was run

without proper care. There is of course, as a matter of speculation,sufficiently

interesting in itself,always the possibility that the man may have been killed by

reason of negligent operation of the train;but for a decision imposing liability to

respond in damages, this is not enough. What is required is evidence, whichmeans some form of proof; and it must be evidence from which reasonable men

may conclude that, upon the whole,it is more likely that the event was caused by

negligence than that it was not . as long as the conclusion is a matter of mere

speculation or conjecture.

The legal burden of proof is on the claimant, on the basis of the balance of probabilities, thatis it is for the claimant to show that it is more likely than not that the defendants wrong

caused

the loss. As we have seen, this matter is usually resolved by use of the but for test. This is a difficult issue where the damage might also be due to some other cause as well as the

defendants

tort; indeed, the other cause may even be of a non-tortious nature. The claimant must

prove that the damage is due, at least substantially or materially, to the tort.


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6.Professional negligence

Negligence by professionals

In the law of negligence , professionals such as lawyers ,doctors,architects. In the

category are persons professing some special skill. Any task which is required to beperformed with a special skill generally be admitted or undertaken to be performed only if

the person possesses the requisite skill for performing that task.

doctors

architects lawyers

any reasonable man entering into a profession which requires a particular level of

learning to be called a professionals of that branch, impliedly assures the person dealing

with him that the skill which he professes to possess shall be exercised and exercised with

reasonable degree of care and caution. He does not assure his client of the result.

Case1: bolam v. friern hospital management committee : where you get a situation which

involves the use of some special skill or competence , then the test as to whether there has

been negligence or not is not the test of the man on the top of a Clapham omnibus,

Professionals

People with special skill must not be negligent


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because he has not got this special skill. The test is the standard of the ordinary skilled

man exercising and professing to have that special skill.. a man need not posses the

highest expert skill ; it is well established law that it is sufficient if he exercises the

ordinary skill of an ordinary competent man exercising that particular art.

Case2: john oni akerele v. the king

A duly qualified medical practitioner gave to his patient the injection of sobita which

consisted of sodium bismutch tartrate as given in the british pharmacopoeia. However ,

what was administered was an overdose of sobita, as a result , the patient died. In action

against the doctor, accused of manslaughter, reckless and negligent act, their lordships of

the privy council held:

(i) That a doctor is not criminally responsible for patients death unless his

negligence or incompetence went beyond a mere matter of compensation between

subjects and showed such disregard for life and safety of others as to amount to acrime against the state ;

(ii) That the degree of negligence required is that it should be gross, and that neither a

jury nor a court can transform negligence of a lesser degree into gross negligence

merely by giving it that appellation.

(iii) It is impossible to define culpable or criminal negligence and it is not possible to

make the distinction between actionable negligence and criminal negligence

intelligible,except by means of illustrations drawn from actual judicial opinion.

Their lordships refused to accpt the view that criminal negligence was proved merely because

a number of persons were made gravely ill after receiving an injection of sobita from the

appellant coupled with a finding that a high degree of care was not exercised. The doctor was

thus acquitted.

Duty in medical profession

(i) Doctors duty to attend to a patient

(ii) Doctors duty of care

(iii) Doctor acting in a callous manner

Some examples of doctors negligence in medical profession

(i)Negligence in free eye camp: case1

Pushpaleela v. state of Karnataka: a free eye camp was organised where 151 persons were

operated upon for cataract problem. Most of them suffered by infection and severe pain after

surgery. 72 out of them lost sight of one eye and 4 lost the sight of both the eyes. There was

found to be caeless and negligence in performing eye operations.

(ii) lack of preventive measures: case1


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Suraj mal chhajer v. state : the petitioners daughter , dr. veena chhajer, aged 25 years, while

performing her duty got contracted hepatitis-b, which resulted in her death.

The rajasthan high court directed the state government to pay an interim compensation of

rs.5 lakh to the petitioner as her doctor was a dedicated doctor.

(iii)penis cut off:

Case 1: c. shivakumar v.dr. john mathur and another

The appellant had a problem in passing urine there was blockage of urine .the

opposite party the doctor in an attempt to perfrom a operation for curing the

problem, totally cut off the penis, which resulted in enormous bleeding, and he

could not pass the urine nad became permanently impotent. The party was held

liable and directed to pay the sum of rs. 8 lakh as a compensationto the petitioner.


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Contributory negligence:

The two most common defences in the negligence action are contributory negligence and

assumption of risk. Since both developed at a comparatively late date in the law of

negligence. And since both clearly operate to the advantage of the defendant, they are

commonly regarded as defences to atort which would otherwise be established.

The requirements for a defence ofvolenti non fit injuria in a negligence action are a

matter for some controversy. It must be shown that the claimant acted voluntarily in the

sense that they could exercise a free choice. Some judges are of the opinion that there

must be an express or implied agreement between the parties before the defence canoperate. The other view is that where the claimant comes across a danger which has

already been created by the defendant the defence can operate. If the defence is successful,

then the claimant will recover no damages at all. This was also the case where contributory

negligence was established before 1945. In cases before that date there was

no practical difference for the claimant in being found to be volenti or contributorily

negligent. The pre-1945 cases must be read with this in mind.

Voluntary

The claimant must have had a genuine freedom of choice before the defence can be

successfully raised against them.

A man cannot be said to be truly willing unless he is in a position to choose freely, and

freedom of choice predicates, not only full knowledge of the circumstances on which the

exercise of choice is conditioned, so that he may be able to choose wisely, but the absence

from his mind of any feeling of constraint so that nothing shall interfere with the freedom

of his will. (Scott LJ inBowater vRowley Regis Corp [1944] KB 476.)

problem

Is it necessary for the defendant to prove that the claimant agreed to waive their legal

rights in order to succeed in a volenti plea?

Judicial views on whether an agreement that the claimant will waive any claim against

the defendant is necessary, are mixed. At one extreme Diplock LJ stated in Wooldridge v

Sumner: The [defence ofvolenti] in the absence of express contract, has no application

to negligence simpliciter where the duty of care is based solely on proximity or

neighbourship in the Atkinian sense.

Where there is an express agreement to such effect there is little difficulty. Whether

the agreement takes the form of a contract term or notice, it will be regulated by statute.

Such waivers are probably covered by the Unfair Contract Terms Act 1977. An expressagreement by a passenger in a car to waive their rights to sue the driver for negligently

7. Negligence defences


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inflicted injuries is, as we have seen, negated by statute.

Slightly less extreme was Lord Dennings view in Nettleship v Weston: Nothing will

suffice short of an agreement to waive any claim for negligence. The plaintiff must agree,

expressly or impliedly, to waive any claim for any injury that may befall him due to the

lack of reasonable care by the defendant.

Knowledge

In order for volenti to operate, the claimant must have knowledge of the existence of the

risk and its nature and extent. The test for knowledge is subjective. If the claimant should

have been aware of the risk but was not, the defence will fail. (Smith vAustin Lifts Ltd

[1959] 1 WLR 100.) This raises problems where the claimant was drunk at the time.

If they were so drunk that they could not appreciate the nature of the risk, they will not

Contributory negligence

This defence will apply where the damage which the claimant has suffered was caused

partly by their own fault and partly by the fault of the defendant. In order to establish the

defence, the defendant must prove that the claimant failed to take reasonable care

for their own safety and that this failure was a cause of their damage. If contributory

negligence is established, the modern position is that the claimant will have their damages

reduced by the court in proportion to their fault. If they would have received 10,000 but

were found to be 25 per cent contributorily negligent, their damages will be 7,500.

This was not always the case. At common law, if the court found that the claimant was

partially to blame for their injuries, they received nothing at all. Contributory negligence

operated as a complete defence.

The claimant conduct

In considering whether the claimant was contributorily negligent, the court will take

into account factors similar to those which would render the defendant negligent. The

test is basically an objective one, although subjective factors are introduced when looking

at child defendants and persons under a disability.

The claimants failure to take care for their own safety may be a cause of the accident

which results in their damage. This occurs where two motorists are held to be equally to

blame for a collision and the claimant is injured. A person who plies a driver with drinksand then accepts a lift and is injured will also be liable under this head.

Alternatively, a person may place themselves in a dangerous position which exposes

them to the risk of involvement in the accident in which they are harmed.


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Conclusion

Tort is the civil wrong which is not exclusively the breach of contract or breach of trust.

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A Critical Study of Negligence

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