Negligence

-NEGLIGENCE AND PRINCIPLE OF LEGAL NEIGHBOUR The Meaning of Negligence: Negligence has three meanings: a) Negligence as a state of mind: Negligence as a state of mind is the opposite of intention. An act is intentional when it is purposeful and done with either the desire of the object of producing a particular result, and actually producing the result by carelessness or indifference. b) Negligence as careless conduct: Negligence is often used in the sense of careless conduct without reference to any duty to care. When there is a duty to take care, the standard of care is frequently that of the reasonable man, although this is not always so, and, consequently, failure to take reasonable care and negligence are sometimes used as synonymous terms regardless of whether there is any duty. c) Negligence as the breach of duty to take care: The third meaning of negligence is used in an objective sense and refers to a breach of a duty to take care, imposed by either Common or Statute Law. The ideas of negligence and duty are correlative, and there is no such thing as negligence in the abstract; negligence is simply neglect of some care which we are bound by Law to exercise towards somebody.

Definition Of Tort Of Negligence: In the past negligence has been defined as the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Of the modern tort of negligence, perhaps, the following definition can be submitted: Negligence is a tort, which involves a person’s breach of duty that is imposed upon him, to take care, resulting in damage to the plaintiff

Essential Component of the modern tort of negligence: From the definition of tort of negligence, three components of negligence can be extracted. Negligence only becomes actionable when these three components can be shown. Once these requirements have been satisfied, the defendant will be held liable in negligence. On the other hand, any failure to prove anyone of these component elements must result in the plaintiff’s action for damages being dismissed.

The three component elements are:• The existence of a duty to take care, which is owed by the defendant towards the plaintiff. • The failure to attain that standard of care, prescribed by the Law, thereby committing a breach of such duty. • Damage, which is both casually connected with such breach and recognized by the Law, has been occasioned to the plaintiff.

Duty Of Care: Negligence in the sense of mere carelessness, would not give rise to any cause of action. Carelessness, however, would assume legal quality of negligence where there was a duty to take care and where failure in that duty had caused damage. Duty to take care was thus, essential ingredient of tort of negligence. Unless such duty was established, no case of actionable negligence could arise. “Duty “develops relationship between one person and another, imposing on the one an obligation for the benefit of that other to take reasonable care in all circumstances. Existence of a duty of care: The concept of ‘reasonable foresight’ is relevant both in testing whether or not there exists a duty of care and is considering the question of remoteness of damage. The circumstances under which a duty to take care arises, have been gradually evolved by the courts one such principle of ‘legal neighbour’ developed in Donoghue v. Stevenson.

DONOGHUE Versus STEVENSON On 26, august 1928, May McAlister she and a friend took their seats in the Wellmeadow Café They were approached by the café owner, Francis Minghella, and May's friend ordered and paid for a ginger beer. The owner brought the order and poured part of a bottle of ginger beer into a tumbler containing ice cream. May drank some of the contents and her friend lifted the bottle to pour the remainder of the ginger beer into the tumbler. On doing so, it was claimed that the remains of a snail in a state of decomposition plopped out of the bottle into the tumbler. May later complained of stomach pain, and her doctor diagnosed her as having gastroenteritis. She also claimed to have suffered emotional distress as a result of the incident. May sued the hotel owner in the Court of Session, it was contended by the hotel owner that he did not owe a duty to care towards ladies as the drink was in a tin so; he was not responsible for that drink. The ladies lost the case. Later they went for an appeal and it was contended that Stevenson the manufacturer owed her a duty. But, manufacturer succeeded in proving that there was no contract between him and the lady and he only owed a duty towards the hotel owner and not the customers

of the hotel as there was no direct link between him and the plaintiffs and according to the Privity of the Contract no third party can be held liable. So the appeal was again dismissed. After that an appeal was filed in the House of Lords where Lord Atkin gave his remarkable principle of legal neighbour and held manufacturers liable. The judgment of Lord Atkin which proceeded to state the principle in this way: “The rule that you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyer's question: Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be — 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 that are called in question.” So David Stevenson should have been thinking about his customers when he was bottling his ginger beer. Atkin went on a manufacturer of products, which he sells in such a 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 knowledge that the absence of reasonable care in the preparation or putting up of products will result in an injury to the consumer's life or property, owes a duty to the consumer to take that reasonable care.

The ‘Legal Neighbour’ principle and it’s boundaries Lord Atkin developed a new principle of ‘legal neighbour” in order to establish a duty of care towards plaintiff, which is not dependant on any contract, but which has to be fixed through forseeability of risk. The statement of the law by Lord Atkin establishes the “general concept of the reasonable foresight as the criteria of negligence. The reasonable man can only forsee the natural and probable consequences of his act, and in estimating these he is entitled to assume that the conditions governing those consequences will be normal unless he has actual notice to the contrary. In order to show negligence under the neighbour principle two things has to be shown first, that defendant had a sufficient relationship of neighbourhood with the plaintiff and secondly that the defendant had reasonable contemplation in his mind that his act of carelessness would likely to cause harm to the plaintiff. Limits of the principle: There are exceptions which effectively limit the ‘neighbour’ principle are; • Where the plaintiff is himself so careless that he can not blame the defendants for all the loss • .Where there was a duty of care on the defendant and defendant has taken enough precaution to avoid injury but still the loss happened.

LAW OF TORTS

NEGLIGENCE & THE PRINCIPLE OF LEGAL NEIGHBOUR

SUBMITTED TO: Madam Misbah Saboohi

SUBMITTED BY: Zamarah Irshad

DATE OF SUBMISSION: October 17, 2006

Article 6 of the constitution? By DR FAQIR HUSSAIN June 1, 2008

A major challenge facing the nation is the prevalence of culture of impunity with regard to a most heinous crime i.e. high treason. Successful commission of this dastardly act saves the perpetrator of the crime from due punishment. This happens on account of the fact that the offender usurps and occupies the highest position in the State apparatus viz president/chief executive. The Establishment (civil/military) then falls in line and are also joined by some amongst the politicians to serve the new Master. They have no qualms to oppose or challenge the unconstitutional act. Thus, the constitution is allowed to be mauled/trampled under the boots and a new constitutional dispensation, euphemistically titled Provisional Constitutional Order (PCO), substituted for it. There occurred successful coups d'etat by successive Bonaparte, resulting in the abrogation or subversion of the constitution. It constitutes the offence of high treason under Article 6 of the constitution. Alas, neither the perpetrator nor his collaborators were ever brought to book. No such proceedings were ever initiated or punishments given. The impunity enjoyed by the offenders is unprecedented and unparalleled in the annals of democratic states. Even though the offence of high treason is created by the country's supreme law i.e. the constitution, the law which regulates it (The High Treason (Punishment) Act 1973) has never been invoked and the prescribed sentence never awarded. This is a most deplorable state of affairs, which has reduced the constitution - most sacrosanct document, establishing binding legal norms - into a worthless document. Consequently, in a public discourse today, the very mention of or emphasis on the word constitution or law invokes sarcastic looks/remarks: why prosecute a taxi driver for over-speeding or a pickpocket for stealing a few bucks, if the molester of the country's fundamental law enjoys impunity, they retort. Impunity enjoyed by military junta and exceptional treatment accorded to some politicians or bureaucrats by withdrawing criminal and corruption cases under the infamous NRO carries an extremely negative image of our nation. It has shattered the principles of equality before law and equal protection of law, guaranteed by the constitution. Having lost half of the country in 1971, the Founding Fathers of the 1973 constitution (some of whom were the biological fathers or fathers-in-law of the

present-day politicians) put in this fundamental document, very stringent provisions to check and deter any future military onslaught into the body politic. Article 5 mandated "loyalty to the state" and "obedience to the constitution and the law" as the inviolable obligation of every citizen. Article 6 criminalized any act or attempt or conspiracy to abrogate or subvert the constitution by use of force or show of force or any other unconstitutional means. The offence is called "high treason" and the perpetrator of this offence and any other person who aids or abets or conspires in the process, is punishable. The sentence prescribed is death or life imprisonment. The offence was committed thrice but the successive governments simply ignored it, preferring expediency to valour. The Supreme Court had on three occasions to examine the vires of the military action: first in 1977 (Begum Nusrat Bhutto vs chief of army staff), second in 1999 (Zafar Ali Shah vs Pervez Musharraf) and third on November 3, 2007 (Tikka Iqbal Muhammad Khan vs General Pervez Musharraf). Every time there occurred a coup d'etat, the constitution was practically abrogated or subverted, though euphemistically termed "held in abeyance." The judges were made to take fresh oath on PCO. Those who declined stood removed. The court then examined the military action and always validated the same, relying on the Doctrine of Necessity. It further granted the coup-maker the power to amend the constitution. Having taken fresh oath and thereby accepting the de-facto authority, the court could hardly have any other option but to validate the military action and grant the power of amendment, because in the alternative, the members of the bench had no legal ground to stand on, indeed, no raison d'etre to continue as judges. The instinct of self-preservation or self-interest operated as a deterrent to think of the alternative, which would have exposed the judges liable to the charge of disobedience to the constitution or even aiding or abetting in its abrogation and subversion. Two comments are warranted on the Supreme Court verdicts: one, the track record of the court remains fairly consistent - condoning the action and finding justification for the same on the Doctrine of Necessity. Such pattern of decisions regrettably resulted in stultifying the operation of Article 6 in its application to the perpetrator of the coup d'etat together with his cohorts, aides and abettors in the crime of high treason. A popular perception thus developed amongst the masses that the court, while deciding between the "law" and "fact", leans in favour of the latter and applies law and legal jargon only to recognise the de-facto authority. The only exception from this pattern was the judgement in the case of Asma Jilani vs the government of the Punjab. This judgement was rendered in 1972, in the aftermath of the debacle of Dacca, wherein the then CMLA namely General Yahya Khan, having lost the war and caused the dismemberment of the country, was widely abused and slandered by all and

sundry; and the court found it convenient to join the chorus. It declared the martial law as unconstitutional and General Yahya as usurper. And having already been deposed, the court declined to resort to the Doctrine of Necessity or "revolutionary legality" or granting the power of amendment to the CMLA. The court was unwilling to save his actions or recognise his power to make or amend the law i.e. the constitution, as observed: "No valid law can come into being from the foul breath or smeared pen of a person guilty of treason against the national order." The court further warranted action against any future Bonaparte or adventurist, thus: "A person who destroys the national legal order in an illegitimate manner cannot be regarded as a valid source of law-making. May be, that on account of his holding the coercive apparatus of the state, the people and the courts are silenced temporarily, but let it be laid down firmly that the order which the usurper imposes will remain illegal and courts will not recognise its rule and act upon them as de jure. As soon as the first opportunity arises, when the coercive apparatus falls from the hands of the usurper, he should be tried for high treason and suitably punished. This alone will serve as a deterrent to would-be adventurers." Very correct and appropriate observation indeed but when and who to apply to? This is the million dollar question! No politician and no parliamentarian have ever contemplated the thought. The constitution, therefore, remains undefended and unprotected, notwithstanding the oath of affirmation by scores of holders of constitutional posts, solemnly swearing (in the name of Allah, the most Beneficent, the most Merciful) that they will preserve, protect and defend this document. The second comment is jurisprudential. Leaving aside the merits of the abovementioned cases, there are a few basic objections to the very jurisdiction and (assumed) power of the Supreme Court in taking cognisance of the acts of "usurpation" and determining its validity or otherwise. How and under which law, can a court recognise or legitimise an act which is taken in sheer disregard of, nay, patent violation of the constitution? Why Article 6 always gets ignored? How the court could remain alive and functional when the basic law which creates and sustains it, is abrogated and suspended, and the court adjudges such action as valid? How can a creation pronounce upon the fate of its creator? Is the court omnipotent or some super-entity, above the law and constitution? Obviously it is not and the Supreme Court has never made any such claim. The court is just one institution, like others, executive and parliament, created by the constitution. It is, therefore, the product of constitution and derives its jurisdiction and powers from this document. It has, therefore, to remain within the limits of the constitution. Its functions are merely to interpret, not make or change the law. The Supreme Court is indeed bound by its oath to "preserve, protect and defend" the constitution. Indeed, it owes it to the constitution to initiate proceedings against the

usurper for the crime of "high treason", as mandated by Article 6 thereof. The court, however, almost always ignored this obligation. During the lengthy proceedings in the above-referred cases, this point was seldom touched and never applied. This is a failure of a sacred constitutional obligation, which every judge is oath-bound to discharge. The author, therefore, shares the views expressed by the Supreme Court in Asma Jilani's case: "...The judges of Municipal Courts who have taken oath of office to preserve, protect and defend the constitution will not break the oath and declare that because of the superior will of the usurper they have been relieved from their legal obligations. If the judges find the executive organ of the state unwilling to enforce their decrees and orders, the only course open to them is to vacate their office. Those who are desirous of serving the usurper may take office under the legal Order imposed by him, but this depends upon the discretion and personal decision of the judges and has no legal effect. If they adopt the second course they will be acknowledging that "might" is "right" and become collaborators with the usurper. The same result is achieved if they foreswear their oath and accept as valid the destruction of the national order and confer recognition on the legislative, administrative and executive acts of the usurper." In this perspective, the executive authority is duty bound to apply Article 6 of the constitution by filing a complaint under the High Treason (Punishment) Act 1973, failing which the superior courts can issue directions for the purpose. The complaint can be against the living and also (symbolic) trial of certain dead perpetrators of the crime of high treason. The law permits retrospective application to crimes committed after March 23, 1956. The posthumous trial and public execution of the remains of Oliver Cromwell in Great Britain furnishes a precedent. Given political will, there cannot be a more opportune time than now.