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Law of torts compete notes for negligence, Lecture notes of Law of Torts

Teerthanker Mahaveer UniversityLaw of Torts

Negligence notes. For torts llb 2nd year

Typology: Lecture notes

2018/2019
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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.
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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.

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
  • 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.
  • Heaven v. Pender , (1883) 11 QBD 503
  • 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.
  • Test of Foreseeability and Proximity
  • Donoghue v. Stevenson , 1932 AC 562 (HL)
  • 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)
  • 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.
  • Home Office v. Dorst Yacht Co. Ltd. , (1970) 2 All ER 294 (HL)
  • 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.
  • Madhya Pradesh Road Transport Corporation v. Basanti Bai, 1971 MPLJ 706
  • 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
  • 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.
  • Bolton v. Stone , (1951) AC 850
  • 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.
  • ii. The seriousness of the risk and the risk of serious injury
  • Standards may be higher where the defendant is aware of the need for greater care.
  • Paris v. Stepney Borough Council , (1951) AC 367
  • 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.
  • Haley v. LEB , (1965) AC 778
  • 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.
  • iii. The social importance of the defendant’s activity at the relevant time
  • The court will take into account the value to the community of the defendant’s activity at the relevant time.
  • Watt v. Hertfordshire County Council , (1954) 1 WLR 835
  • 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.
  • 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”.
  • iv. The relationship between the risk and the measures taken
  • The measures to avoid the risk of harm must be balanced against the likelihood of the risk.
  • Latimer v. A.E.C. Ltd ., (1953) AC 643
  • 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.
  • Reeves v. Commissioner of Police , (1998) 2 All ER 381
  • 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:
  • It must be impossible to establish the negligent action or omission that caused the injury;
  • The injury must be such as would not normally have occurred if proper care had been exercised; and
  • The defendant must have had control over the events alleged to be the cause of the injury.
  • Shyam Sunder v. State of Rajasthan , (1974) 1 SCC 690
  • 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”.
  • Cholan Roadways Ltd. v. G. Thirugnanasambandam , (2005) 3 SCC 241
  • 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”.
  • 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.