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An Introduction to Tort of Negligence

Generally, the word negligence is used as a synonym of the word ‘carelessness’. But, when we talk about its legal sense, it signifies a failure to exercise the standard of care which a reasonable man should, by law, have exercised in the given circumstances. So, Negligence can be described as a situation in which damage is caused to a person because of the careless act or omission of the other person. In other words, it is a failure to take proper care over something or breach of a duty of care which results in some damage.
Winfield and Jolowicz defined negligence as “the breach of a legal duty to take care which results in damage, undesired by the defendant to the plaintiff.”

Essentials of Negligence

In order to hold a person liable for the tort of negligence, there are certain essentials which need to be fulfilled. If any of essential is not present in a certain situation, then he cannot be held liable for the tort of negligence.

i) Duty of care towards the Plaintiff

In order to hold a person liable for the tort of negligence, it is necessary to establish the defendant owed a legal duty towards the plaintiff. There is no parameter which explains the meaning of ‘Duty’. Its meaning varies from case to case. It must be noted that the defendant must owe a legal duty and not any kind of social, moral or religious duty. It must also be noted whether the defendant owes a duty of care to the plaintiff or not depends on the reasonable foreseeability of the injury to the plaintiff. Let us have look at case law to have a better understanding of this concept:

Donoghue v. Stevenson[1]

FACTS: The plaintiff’s friend purchased a bottle of ginger beer from a retailer for the plaintiff. As the bottle was opaque, after consuming half of the contents of the bottle, the plaintiff noticed the decomposed body of a dead snail in the bottle due to which the plaintiff suffered severe health problems. The plaintiff filed a suit for damages against the manufacturer.
HELD: The court held the manufacturer liable for his negligent act. Also, the court stated that the manufacturer has a duty of care towards every possible consumer of the drink.

ii) Breach of the duty

There must be a breach of the legal duty which the defendant owed towards the plaintiff. It is the non-observance of due care which is required in a particular situation. The standard of duty of care is that of a reasonable or a man of ordinary prudence. Let us understand this essential element with the help of case law:

K. Nagireddi v. Government of Andhra Pradesh[2]

FACTS: The plaintiff had an orchard consisting of 285 fruits bearing trees. The State Government constructed a canal for the purpose of irrigation. It did not cement the floors and the banks of the canal. Due to this, the roots of the plaintiff’s trees absorbed the excess water from the canal and died. The plaintiff brought an action against the State Government for its negligent act.
HELD: The court rejected the plea stating that the construction of the canal for the irrigation purposes was an act of great necessity, particularly in Indian conditions and hence, there was no negligence on the part of the State Government.

iii) Damage caused to the Plaintiff

Lastly, in order to make the defendant liable for the tort of negligence, it is necessary that the breach of the legal duty by the defendant must cause some damage to the plaintiff. Also, it is the obligation of the plaintiff to prove that damage is caused to him by the negligent act of the defendant.

Proof of Negligence

As a general rule, it is on the part of the plaintiff to prove that he/she has suffered some damage as a consequence of the negligent act of the defendant i.e. the burden of proof is on the plaintiff to prove that the defendant was negligent in discharging his duty. The burden of proof is also known as ‘Onus of proof.’ Hence, the plaintiff is required to prove all the three essentials of negligence.
But, there are certain situations in which the negligence can be seen from the facts of the case and the plaintiff is not required to prove the negligent act of the defendant. The maxim which represents these types of situations is res ipsa loquitor which means ‘the thing speaks for itself’. In these types of cases, the plaintiff is only required to prove that substantial damage is caused to the plaintiff and once the onus is discharged, it is now for the defendant to prove that the negligent act as a result of contributory negligence or inevitable accident. Also, this maxim applies when the event causing damage was exclusively within the control and management of the defendant or his servant.

Municipal Corporation of Delhi v. Subhagwanti[3]

FACTS: The Corporation was assigned the duty of maintaining the Clock Tower located in Chandni Chowk, Delhi. The tower was 80 years old but the expected life of the tower was around 40-45 years. Due to the negligence of the municipal corporation, the clock tower fell causing injuries, several people.
HELD: The Supreme Court held that there was clear negligence on the part of the defendants. Since the defendants could not prove the absence of negligence on their part, they were held liable.

Contributory Negligence

When the plaintiff by his own fault or negligence contributed to the damage caused to him by the negligence of the defendant, he is considered to be guilty of contributory negligence. It acts as a good defence for the defendant to escape his liability if he is able to prove that there was negligence on the part of the plaintiff too. Thus, negligence on the part of both, the plaintiff and the defendant is contributory negligence.
Let us have a look at the observation made by the Supreme Court of India on this concept:

Municipal Corporation of Bombay v. Laxman Iyer[4]

In this case, the Supreme Court observed that “An accident would be said to be the result of contributory negligence if, the proximate cause of the accident is the act or omission amounting to want of ordinary care or in defiance of duty or obligation on the part of the complaining party has conjoined with the other party ‘s negligence”.
Further, it also observed that when an accident occurs due to the negligence of both parties, substantially, there would be contributory negligence and both would be blamed.

Last Opportunity Rule

According to this rule, when there is negligence on the part of both the parties, whoever had the later opportunity to prevent the damage by using ordinary care should be made liable for the loss. Therefore, he will be solely responsible for such an act.
The case of Davis v. Mann explains the last opportunity rule:

Davis v. Mann[5]

FACTS: The plaintiff fettered the forefeet of his donkey and him on a narrow highway. The defendant, who was driving his wagon of horses came too fast that it negligently ran over the donkey and killed it. 
HELD: Though, there was negligence on the part of both, the plaintiff and the defendant but, the defendant (wagon’s driver) was held liable as he had the ‘last opportunity’ to avoid the accident.

Composite Negligence

When two or more persons cause damage to the other person due to negligence, there is said to be composite negligence and the persons responsible for such negligence are called “Composite Tortfeasors”. The nature of liability in case of composite negligence is joint and several. 
Let us understand composite negligence with a case law:

Karnataka State Road Transport Corporation v. Krishnan[6]

FACTS: Two passenger buses brushed against each other due to which the left hands of two passengers travelling in one the buses were cut below the shoulder.
HELD: It was held that this is a clear case of composite negligence and hence, both the drivers were held jointly and severally liable.

Conclusion

Negligence, which emerged as an English Law is now an integral part of Indian Law. It is now clear that in order to make someone liable for the tort of negligence, it is necessary to fulfil certain essential elements and in absence of any of the essentials, the person would not be held liable in any case.
Also, it is now clear that in the of contributory negligence, the last opportunity rule will apply and the one who had the later opportunity to avoid the accident would be made liable. In cases of composite negligence, all the tortfeasors would be made liable and the liability can either be joint or several. Hence, negligence has become a vital part of the law of tort in India. Also, the concept of negligence has wide applicability and its essence can be seen in almost every case.

References

1.[1932] UKHL 100
2.AIR 1982 AP 119
3.AIR 1966 SC 1750
4.2003 8 SCC 731
5.152 Eng. Rep. 588 (1842)
6.AIR 1981 Kant 11
BY- Lakshya Sharma
Aligarh Muslim University

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