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