Negligence.docx

NEGLIGENCE Introduction •

Negligence constitutes an independent basis of tort’s liability. It means which creates a risk of causing damage, rather than the state of mind.

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According to Winfield, “negligence as a tort is the breach of a legal duty to take care which results in damage, undesired by the defendant to the plaintiff”.

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The definition involves three constituents of negligence:

1. A legal duty to exercise due care on the part of the party complained of towards the party complaining the former’s conduct within the scope of the duty. 2. Breach of the said duty and 3. Consequential damage •

Cause of action for negligence arises only when damage occurs for damage is a necessary ingredient of this tort. In other words, it is the occurrence of damage which is the starting point of the cause of action.

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Jacob Mathew v. State of Punjab, (2005) 6 SCC 1

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The Supreme Court observed:

“The law takes no cognizance of carelessness in the abstract. It concerns itself with carelessness only where there is a duty to take care and where failure in that duty has caused damage. In such circumstances carelessness assumes the legal quality of negligence and entails the consequences in law of negligence. The cardinal principle of liability is that the party complained of should owe to the party complaining a duty to take care, and that the party complaining should be able to prove that he has suffered damage in consequence of a breach of that duty.” •

Union of India v. Hindustan Leaver Ltd. AIR 1975 P&H 259

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Negligence is a breach of duty to take care remitting in damage to one whether to person or property.

• Essentials of Negligence •

Following are the essential conditions to be proven to make one liable for the tort of negligence.

1. That the defendant was under a legal duty to exercise due care and skill as there cannot be any liability for negligence unless there is a breach of some legal duty. The duty was towards the plaintiff.

2. That there was breach of that duty on the part of the defendant i.e. the defendant failed to perform the duty to exercise his due care and skill.

3. That there was consequential injury or damage thereby, that is, damage as the natural and probable consequences and the direct cause of the breach of the duty complained of. •

1. Existence of Duty

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Normally the question of existence of a duty situation in a given case is decided on the basis of existing precedents covering similar situations. It is now well settled that new duty situations can be recognised.

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Heaven v. Pender, (1883) 11 QBD 503

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Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill by which neglect the plaintiff has suffered injury to his person or property.

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Test of Foreseeability and Proximity

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Donoghue v. Stevenson, 1932 AC 562 (HL)

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Lord Atkin laid down the general principle of foreseeability and proximity applicable in solving cases presenting the existence or otherwise of a new duty situation in the following words:

“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 contemplations as being so affected when I am directing my mind to the acts or omissions which are called in question.” •

Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd., (1964) AC 465 (HL)

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It was held that the law will imply a duty of care when a party seeking information from a party possessed of a special skill trusts him to exercise due care and that a negligent, though honest, misrepresentation in breach of this duty may give rise to an action for damages apart from contract or fiduciary relationship.

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Home Office v. Dorst Yacht Co. Ltd., (1970) 2 All ER 294 (HL)

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Some borstal trainees escaped one night due to the negligence of the Borstal Officers who contrary to orders were in bed. The trainees caused damage to a yacht, the owner of which sued the Home Office for damages. A preliminary issue was raised whether on the facts pleaded, the Home Office or its servants owed any duty of care to the owner of the yacht. It was held that the causing of damage to the yacht by the borstal trainees ought to have been foreseen by the Borstal Officers as likely to occur if they failed to exercise proper control and supervision and, therefore, the officers prima facie owed a duty of care to the owner of the yacht.

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Madhya Pradesh Road Transport Corporation v. Basanti Bai, 1971 MPLJ 706

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A driver of the appellant was stabbed by a ruffian while going to joint his duty in early hours of the morning. There was a communal riot in the city and the authorities had promulgated curfew order. The question before the Court was whether the appellant was negligent in not providing adequate arrangement for the safety of the deceased while he was going to join his duty. On applying the principle of foreseeability and proximity, the appellant were held liable.

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The Court held that:

“Normally an employer owes no duty of care for the safety of his employee while the employee is proceeding to the place of employment from his house. The point, however, is whether the same rule prevails when the situation is abnormal and when as a result of outbreak of violence in the city, the law enforcement authority promulgate curfew order requiring citizens to be within doors as the only means which can reasonably ensure their safety. In such situation….if an employer requires his employee to come to the place of employment in early hours of the morning, it is reasonably foreseeable that the employee is likely to suffer injury at the hands of some ruffian while on the way to join his work…” •

Lewis v. Carmarthenshire County Council, (1953) 1 WLR 1439

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An education authority was held to owe a duty to exercise reasonable supervision of children in its nursery adjoining the road to prevent them from running into the road.

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Bernes v. Hampshire County Council, (1969) 3 All ER 746

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The local education authority was held liable for allowing children out of school early, before the parents were there to meet them.

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Ogwo v. Taylor, (1988) 1 AC 431

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The occupier of premises was liable to a fire-fighter for injuries suffered in respect of a blaze at a house which was the result of the occupier’s negligence.

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Chadwick v. British Transport Commission, (1967) 2 All ER 540

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The plaintiff recovered damages for psychiatric injury after he was voluntarily involved in a rescue operation following a train crash caused by the defendant’s negligence. The Court held that it was foreseeable that person might come to the rescue and that they were owed a duty of care.

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2. Breach of the duty of care

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Whether there has been a breach of duty is a question of fact and based on the objective test of a reasonable man to the situation. The court takes account of the following factors:

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i. the likelihood of harm;

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ii. the seriousness of the risk and the risk of serious injury;

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iii. The usefulness or importance of the defendant’s activity when the alleged negligence occurred; and

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iv. The relationship between the risk and the measures taken.

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i. The likelihood of harm

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The care required increases with the likelihood that the defendant’s action will result in harm. If there is only a remote possibility of harm, a person will be acting reasonably even though s/he does not protect against the harm being suffered.

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Bolton v. Stone, (1951) AC 850

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The plaintiff was standing on the highway when she was injured by a ball from the defendant’s cricket club. She failed in an action against the club, since the probability of such an injury was not foreseeable by a reasonable person because balls had only been hit outside the ground on six occasions in twenty-eight years.

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ii. The seriousness of the risk and the risk of serious injury

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Standards may be higher where the defendant is aware of the need for greater care.

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Paris v. Stepney Borough Council, (1951) AC 367

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The plaintiff was a one-eyed mechanic who was totally blinded while working under the defendant’s vehicle by a splinter of metal falling into his good eye. The court held that although it was not normal practice to provide goggles to normally sighted workers, a higher duty of care was owed to this one-eyed employee, and the plaintiff obtained damages.

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Haley v. LEB, (1965) AC 778

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The Court held that a greater duty of care was owed to a blind pedestrian. The LEB had dug a hole in the pavement which was indicted by warning signs and a flashing light Haley fell into the hole and was injured and recovered damages from the LEB.

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iii. The social importance of the defendant’s activity at the relevant time

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The court will take into account the value to the community of the defendant’s activity at the relevant time.

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Watt v. Hertfordshire County Council, (1954) 1 WLR 835

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A fireman was injured by a jack falling from a lorry not equipped to carry such heavy equipment. The lorry was the only available transport to take the jack to the scene of an accident, where a woman was trapped in the wreckage. The local authority was held not liable.

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Lord Denning stated: “one must balance the risk against the end to be achieved and the commercial end to make a profit is very different from the human to save life or limb”.

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iv. The relationship between the risk and the measures taken

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The measures to avoid the risk of harm must be balanced against the likelihood of the risk.

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Latimer v. A.E.C. Ltd., (1953) AC 643

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An exceptional storm flooded a factory, leaving the floor covered with a slimy mixture of oil and water. In spite of precautions to make the floor safe, the plaintiff was injured and alleged negligence for failure to close down the plant, but the court held that the risk did not justify such extreme measures.

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Reeves v. Commissioner of Police, (1998) 2 All ER 381

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Police taking a person with known suicidal tendencies are under a duty to take reasonable steps for preventing him in committing suicide and are liable in damages in an action for negligence brought by the testatrix of the prisoner who died by suicide as the police failed to take reasonable preventive steps.

• The burden of Proof and Doctrine of Res Ipsa Loquitur •

The burden of proof is on the plaintiff to establish the breach of duty of care except where the doctrine of res ipsa loquitur i.e. the thing speaks for itself, applies. For the doctrine to apply, the following must be established:

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It must be impossible to establish the negligent action or omission that caused the injury;

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The injury must be such as would not normally have occurred if proper care had been exercised; and

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The defendant must have had control over the events alleged to be the cause of the injury.

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Shyam Sunder v. State of Rajasthan, (1974) 1 SCC 690

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The Supreme Court held that “the principal function of the maxim is to prevent injustice which would result if a plaintiff were invariably compelled to prove the precise cause of the accident and the defendant responsible for it even when the facts bearing on these matters are at the outset unknown to him and often within the knowledge of the defendant”.

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Cholan Roadways Ltd. v. G. Thirugnanasambandam, (2005) 3 SCC 241

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The Supreme Court held that “the general purport of the words res ipsa loquitur is that the accident “speaks for itself” or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. It will then be for the defendant to establish that the accident

happened due to some other cause than his own negligence. Once the said doctrine is found to be applicable the burden of proof would shift on the delinquent”. •

Mohd. Aynuddin v. State of A.P., (2000) 7 SCC 72

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The principle of res ipsa loquitur is only a rule of evidence to determine the onus of proof in actions relating to negligence. The said principle has application only when the nature of the accident and the attending circumstances would reasonably lead to the belief that in the absence of negligence the accident would not have occurred and that the thing which caused injury is shown to have been under the management and control of the alleged wrongdoer.

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Jacob Mathew v. State of Punjab, (2005) 6 SCC 1

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The rule of res ipsa Loquitur is not of universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors. Else it would be counter-productive. Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitur.

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Scott v. London and St. Katherine Docks Co. (1865) 3 H & C 596

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The plaintiff was struck by six bags of sugar which fell on him as he was passing the defendant’s premises. The defendant was held liable.

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Gee v. Metropolitan Railway Co. (1873) LR 8 QB 161

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The plaintiff was injured when he fell out of an improperly closed door minutes after the train left the station, and the company was liable under the doctrine.

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Ward v. Tesco Brothers, (1976) 1 WLR 810

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Ward slipped on some spilt yoghurt while shopping. The yoghurt was probably spilled by another customer but the defendants were liable because they failed to establish that they operated a non-negligent spillages system.

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Basthi Kasim Saheb v. Mysore State Road Transport Corporation, (1991) 1 SCC 298

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In the rainy season the unmetalled portions of the road used to be rendered slushy and muddy, and that, it had been actually raining for some time. The driver was serving this route for about four months before the accident and it cannot, therefore, be suggested that he had no idea of the risk involved in driving down the vehicle on to the muddy portion, requiring special attention and considerable slowing down of the speed. The question as to whether bus was being driven rashly or not must be answered in this context.

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While driving on a good wide multi-lane road, it may be permissible to drive a vehicle at a comparatively higher speed but, it will be highly unsafe to do so when circumstances are not favourable.

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The question whether a driver has been acting with due care is to be judged in that background. The evidence indicates that there was no traffic on the road at the time of

the accident. No untoward incident took place like sudden failure of the brakes or an unexpected stray cattle coming in front of the bus and still the vehicle got into trouble. •

In absence of any unexpected development, it was for the driver to have explained how this happened and there is no such explanation forthcoming. In such a situation the principle of res ipsa Loquitur applies.