Negligence: To understand this branch of Tort we need to study two theories given by jurists. 1. Objective theory 2. Su…
Negligence:
To
understand this branch of Tort we need to study two theories given by jurists.
understand this branch of Tort we need to study two theories given by jurists.
1. Objective theory
2. Subjective theory
According to objective theory it is a type of “conduct”.
According to subjective theory it is a kind of “State of
Mind”
Mind”
The objective theory is recognized and supported by Austin, Salmond
and Winfield.
and Winfield.
Meaning:
According to Swayne J. of the United States “Negligence is
failure to do what a reasonable and prudent person would ordinarily have done
under the circumstances of the situation.
failure to do what a reasonable and prudent person would ordinarily have done
under the circumstances of the situation.
Essential
Ingredients
Ingredients
1.
That the defendant was under a legal
duty to take reasonable car towards the plaintiff to avoid the damage
complained of.
That the defendant was under a legal
duty to take reasonable car towards the plaintiff to avoid the damage
complained of.
2.
That the defendant committed a breach
of that duty.
That the defendant committed a breach
of that duty.
3.
That due to breach of the duty
plaintiff suffered damage.
That due to breach of the duty
plaintiff suffered damage.
Duty
to take care
to take care
The conduct of a person that he would behave ,in such a
manner a reasonable person would have behave in like circumstances when a
person does not behave like a reasonable or prudent person, he is said to be
careless. A person is liable for his careless if he is under a legal duty to
take care towards the particular person.
manner a reasonable person would have behave in like circumstances when a
person does not behave like a reasonable or prudent person, he is said to be
careless. A person is liable for his careless if he is under a legal duty to
take care towards the particular person.
Acts
or Omissions
or Omissions
One must take reasonable care to avoid acts or omissions
which you can reasonably foresee would be likely to injure your Neighbours.
which you can reasonably foresee would be likely to injure your Neighbours.
Breach
of Duty
of Duty
If a person owes a duty of care and commits a breach of that
duty, he is said to have committed negligence.
duty, he is said to have committed negligence.
A person is neither expected to act
like a super human nor like an insane or unreasonable and imprudent person. The
law therefore requires that standard and degree of care on the part of a person
which should have taken by a reasonable and prudent person in the like
circumstances.
like a super human nor like an insane or unreasonable and imprudent person. The
law therefore requires that standard and degree of care on the part of a person
which should have taken by a reasonable and prudent person in the like
circumstances.
Case Law : Surendra
Shetty V. Sanjiva Rao AIR 1982, Karnataka 84.
Shetty V. Sanjiva Rao AIR 1982, Karnataka 84.
It has been held that when the Driver is in School zone,
there is greater responsibility on the driver to see that the speed of his
vehicle is so controlled as to be also to stop it in moment’s notice.
there is greater responsibility on the driver to see that the speed of his
vehicle is so controlled as to be also to stop it in moment’s notice.
Case Law : Shivkar
V. Ramnaresh AIR 1978 Guj 115
V. Ramnaresh AIR 1978 Guj 115
–
Headmaster of school permitted 60 boys
along with two teachers to go for Picnic to a spot on the bank of river
Sabarmati. The boys were playing and both of the teachers started taking lunch
together.
Headmaster of school permitted 60 boys
along with two teachers to go for Picnic to a spot on the bank of river
Sabarmati. The boys were playing and both of the teachers started taking lunch
together.
–
The two young boys were found drowning
in river, one was rescued by fisherman but other one Jagpal aged 12 years died.
The two young boys were found drowning
in river, one was rescued by fisherman but other one Jagpal aged 12 years died.
–
It was held that river water was on
amusement as well as a trap, under the circumstances, a greater care was
necessary. Teachers should not have taken food together. While one should have
taken food and the other should have supervised the young boys. The teachers
failed to take due care and were held liable. The school authority was held
vicariously liable.
It was held that river water was on
amusement as well as a trap, under the circumstances, a greater care was
necessary. Teachers should not have taken food together. While one should have
taken food and the other should have supervised the young boys. The teachers
failed to take due care and were held liable. The school authority was held
vicariously liable.
Burden of Proof in an action for
negligence’s
negligence’s
The general rule is that in an action
of negligence the burden of proof is on the person who complains of negligence.
of negligence the burden of proof is on the person who complains of negligence.
Defences
of negligence
of negligence
1)
General Defences 2)
Specific defences
General Defences 2)
Specific defences
a)
Volant non fit injuries a) Contributory
Negligence
Volant non fit injuries a) Contributory
Negligence
b)
Private defence b) Remoteness of damage
Private defence b) Remoteness of damage
c)
Statutory autonomist
Statutory autonomist
d)
Act of God
Act of God
Res ipsa Loquitor
Things speaks for itself The maxim is a rule of evidence. It establishes the prima
facie case of negligence against the defendant. It means the mere accident
tells its own story and raises the inference against the defendant that he was
negligent in performing his part.
facie case of negligence against the defendant. It means the mere accident
tells its own story and raises the inference against the defendant that he was
negligent in performing his part.
Case Law: Donoghue V. Stevenson
A man bought
a bottle of a ginger beer for his girlfriend manufactured by the defendant. The
lady drank the contents of the bottle directly. Later, she poured the remaining
contents into a glass. To her utter shock, she noticed that a dead snail
popping out of the bottle. She fainted and fell ill, as she had already consumed
a portion of the drink. It was held that the manufacturer was liable to the
lady for “negligence”.
a bottle of a ginger beer for his girlfriend manufactured by the defendant. The
lady drank the contents of the bottle directly. Later, she poured the remaining
contents into a glass. To her utter shock, she noticed that a dead snail
popping out of the bottle. She fainted and fell ill, as she had already consumed
a portion of the drink. It was held that the manufacturer was liable to the
lady for “negligence”.
Case
Law : M.C. of Delhi V. Subhagwanti AIR1966SC
Law : M.C. of Delhi V. Subhagwanti AIR1966SC
Three person died as a result of collapse of the clock tower
situated opposite the town hall in the main bazaar of Chandni Chowk; Delhi
belonging to the appellant corporation.
situated opposite the town hall in the main bazaar of Chandni Chowk; Delhi
belonging to the appellant corporation.
–
Tower was 80 years old and normally
have 40-45 years life. It was not maintained by the corporation and no notice
was displayed about its poor infrastructure by the municipal corporation.
Tower was 80 years old and normally
have 40-45 years life. It was not maintained by the corporation and no notice
was displayed about its poor infrastructure by the municipal corporation.
–
The mortar was deteriorated to such an
extent that it was reduced to powder without any century properties.
The mortar was deteriorated to such an
extent that it was reduced to powder without any century properties.
–
Towers tells its own story that prima
facie, Municipal Corporation was negligent and was held vicariously liable.
Towers tells its own story that prima
facie, Municipal Corporation was negligent and was held vicariously liable.
For example: – Tree
falling on the road side
falling on the road side
–
Gate of railway crossing is open.
Gate of railway crossing is open.
–
Leakage of electricity.
Leakage of electricity.
–
Trenches dug by the side of the road.
Trenches dug by the side of the road.
Case Law : Byrne V. Boadle.
The plaintiff was walking on the
footpath of a street. Suddenly, a barrel of flour fell upon him from the upper
floor of the defendant’s warehouse. Held that the barrel of flour had fallen
only from the building beneath which the plaintiff was walking. The learned judge
in this case observed ‘A barrel could not roll out of a warehouse without
negligence on the part of those who have control and who should have exercised
reasonable care’.
footpath of a street. Suddenly, a barrel of flour fell upon him from the upper
floor of the defendant’s warehouse. Held that the barrel of flour had fallen
only from the building beneath which the plaintiff was walking. The learned judge
in this case observed ‘A barrel could not roll out of a warehouse without
negligence on the part of those who have control and who should have exercised
reasonable care’.
Case
Law : Mata Prasad V. Union of India
Law : Mata Prasad V. Union of India
There
was a manned railway level crossing, whose gates were kept open. The plaintiff,
who believed that there was no train in the vicinity, tried crossing the gates.
His vehicle collided with a railway engine. It was held that the Railway Board
was liable on the basis of maxim “res ipsa loquitor”. The fact that the railway
gate was open amply shows the gross negligence of the Railway authorities.
was a manned railway level crossing, whose gates were kept open. The plaintiff,
who believed that there was no train in the vicinity, tried crossing the gates.
His vehicle collided with a railway engine. It was held that the Railway Board
was liable on the basis of maxim “res ipsa loquitor”. The fact that the railway
gate was open amply shows the gross negligence of the Railway authorities.
Case law: Butterfied Vs. Forrester
The
defendant wrongfully put a pole across a highway. The plaintiff, who was riding
violently at dusk, did not notice the obstruction and ran into it and was
injured. Held, he could not recover damages as he failed to take due care to
avoid the accident.
defendant wrongfully put a pole across a highway. The plaintiff, who was riding
violently at dusk, did not notice the obstruction and ran into it and was
injured. Held, he could not recover damages as he failed to take due care to
avoid the accident.
Remoteness of Damages
Case Law: Wagon Mound Case
The Wagon
Mound was an oil tanker ship. Due to the negligence of the servants on the
ship, oil dripped from the ship. Unfortunately, there was a big tide, which
carried the oil to the wharf. In the wharf, some employees were involved in
welding operations. The sparks from the welding came in contact with the oil
and resulted in fire. Held that the plaintiff was not liable as he could not
have reasonably foreseen that the oil could be carried to a far away spot and
cause fire.
Mound was an oil tanker ship. Due to the negligence of the servants on the
ship, oil dripped from the ship. Unfortunately, there was a big tide, which
carried the oil to the wharf. In the wharf, some employees were involved in
welding operations. The sparks from the welding came in contact with the oil
and resulted in fire. Held that the plaintiff was not liable as he could not
have reasonably foreseen that the oil could be carried to a far away spot and
cause fire.
The test laid down in Scott V. London
St. Katherine Docks Co.
St. Katherine Docks Co.
a) That the things causing the damage be under the control of
the defendant or his servant.
the defendant or his servant.
b) That the accident must be such as would not in the ordinary
course of things have happened without negligence.
course of things have happened without negligence.
Negligence:
Legal Profession
Legal Profession
The relationship of a counsel and client depends on mutual
trust. The counsel should be careful in performing his professional duties. If
a counsel by his act of commission causes any loss to the client the counsel
will be liable.
trust. The counsel should be careful in performing his professional duties. If
a counsel by his act of commission causes any loss to the client the counsel
will be liable.
Manjit
Kaur V Deol Buse Service Ltd. AIR 1989 P&H 183
Kaur V Deol Buse Service Ltd. AIR 1989 P&H 183
Manjit Kaur, a widow whose husband had been killed in a
motor accident filed an appeal for enhanced compensation through her counsel.
The case remained on daily list for two weeks and then it was dismissed in
default even the application for rehearing the appeal became time barred. Keeping
in view the serious ailment of counsel and unconditional apology tendered by
him, he was warned to be careful in future and was directed to return the fees
he received and to compensate the party for cost of Rs.1000/- awarded against
the party for the rehearing of the appeal.
motor accident filed an appeal for enhanced compensation through her counsel.
The case remained on daily list for two weeks and then it was dismissed in
default even the application for rehearing the appeal became time barred. Keeping
in view the serious ailment of counsel and unconditional apology tendered by
him, he was warned to be careful in future and was directed to return the fees
he received and to compensate the party for cost of Rs.1000/- awarded against
the party for the rehearing of the appeal.
Medical
Negligence
Negligence
Every profession requires reasonable degree of care and
skill.
skill.
A surgeon is required to exercise reasonable care and skill
equivalent to a member of his class.
equivalent to a member of his class.
Doctor’s duty of care
When a medical practitioner attends
a patient he owes him following duties.
a patient he owes him following duties.
1.
A
duty of care in deciding whether to undertake in case.
A
duty of care in deciding whether to undertake in case.
2.
A
duty of care in deciding what treatment to give.
A
duty of care in deciding what treatment to give.
3.
A duty of
care in the administration of the treatment.
A duty of
care in the administration of the treatment.
The breach of any of the above duty of care in the medical
profession will present in negligence and the aggrieved party would be
entitling for compensation.
profession will present in negligence and the aggrieved party would be
entitling for compensation.
Some examples of medical negligence:
1. Unsuccessful sterilization operation
2. Negligence in free eye camp
3. Lack of preventive
measures resulting in doctors.
measures resulting in doctors.
4. Foreign matter left behind
5. Death due to transduction of blood of a wrong group.
6. Doctors duty to maintain secrecy
Note:
Doctor owe a duty to maintain
privacy/secrecy towards the patient but to avoid a greater harm if a doctor
exposes a information then it is not civil wrong as then is justification
behind it. Example: A doctor
passed information to Ms. Akili about the health of her fiancé who was HIV+.
Ms. Akili broke her engagement with her fiance. Later on he brought an action
against the doctor for breach of duty to maintain privacy. Court held that
doctor is not liable.
Doctor owe a duty to maintain
privacy/secrecy towards the patient but to avoid a greater harm if a doctor
exposes a information then it is not civil wrong as then is justification
behind it. Example: A doctor
passed information to Ms. Akili about the health of her fiancé who was HIV+.
Ms. Akili broke her engagement with her fiance. Later on he brought an action
against the doctor for breach of duty to maintain privacy. Court held that
doctor is not liable.
Contributory
Negligence
Negligence
When the plaintiff by his own want of care contributes to
the damage caused by the negligence or wrongful conduct of the defendant, he is
considered to be guilty of contributory negligence.
the damage caused by the negligence or wrongful conduct of the defendant, he is
considered to be guilty of contributory negligence.
For e.g. A, going on the wrong side of road, is hit by a
vehicle coming from the opposite direction and driven rashly by B, A can be met
with the defence of contributory neglegience.
vehicle coming from the opposite direction and driven rashly by B, A can be met
with the defence of contributory neglegience.
Rural Transport Service V Bezlum BIBI
AIR1980, Cal 165
The conductor of an overcrowded bus invited passenger to
travel on roof of bus. The driver ignored the fact that there were passengers
on the roof and tried to overtake a cart.
travel on roof of bus. The driver ignored the fact that there were passengers
on the roof and tried to overtake a cart.
Last
opportunity rule
opportunity rule
It is based on the fact that who was having the last
opportunity to avoid the accident. The one who was having the last opportunity
will be totally liable for the loss. The last opportunity could be with the
plaintiff or with the defendant.
opportunity to avoid the accident. The one who was having the last opportunity
will be totally liable for the loss. The last opportunity could be with the
plaintiff or with the defendant.
Case law: Davies Vs Mann
In this case, the plaintiff tied the forefeet of his donkey
and negligently left it on the highway. The defendant subsequently came along
that way, driving his wagon and horses at a faster pace than he ought to have
done-under the circumstances with the result that the wagon ran over the donkey
and killed it. It was held that the defendant was liable, notwithstanding the
fact that the accident would not have happened but for the negligence of the
plaintiff. In spite of the plaintiff’s negligence, he was held entitled to
recover damages because the defendant had “last opportunity” of avoiding the
accident.
and negligently left it on the highway. The defendant subsequently came along
that way, driving his wagon and horses at a faster pace than he ought to have
done-under the circumstances with the result that the wagon ran over the donkey
and killed it. It was held that the defendant was liable, notwithstanding the
fact that the accident would not have happened but for the negligence of the
plaintiff. In spite of the plaintiff’s negligence, he was held entitled to
recover damages because the defendant had “last opportunity” of avoiding the
accident.
Practice exercise
1. According to objective theory negligence is a
type of
type of
A. Conduct
B. State of
mind
mind
C. Damages
D. None of
the above
the above
Ans: A
2.
________________ failure to do what a reasonable and prudent person would
ordinarily have done under the circumstances of the situation
________________ failure to do what a reasonable and prudent person would
ordinarily have done under the circumstances of the situation
A. Assault
B. Nuisance
C. Mayhem
D.
Negligence
Negligence
Ans: D
3. A person is neither expected to act like a
super human nor like an insane or unreasonable and imprudent person.
super human nor like an insane or unreasonable and imprudent person.
A. True
B. False
Ans: A
4. What are
the specific defences one can claim against negligence?
the specific defences one can claim against negligence?
A.
Contributory negligence
Contributory negligence
B.
Remoteness of damage
Remoteness of damage
C. All of
the above
the above
Ans: C
5. Intentional application of force against another
without lawful justification is
without lawful justification is
A. Assault
B. Battery
C. Mayhem
D. False
imprisonment
imprisonment
Ans: B
6. Res ipsa
Loquitor means?
Loquitor means?
A.
Plaintiff the wrongdoer
Plaintiff the wrongdoer
B. Thing
speaks for itself
speaks for itself
C.
Voluntary acceptance of injury
Voluntary acceptance of injury
D.
Knowledge of injury
Knowledge of injury
Ans: B
7. A man
bought a bottle of a ginger beer for his girlfriend manufactured by the
defendant. The lady drank the contents of the bottle directly. Later, she
poured the remaining contents into a glass. To her utter shock, she noticed
that a dead snail popping out of the bottle. She fainted and fell ill, as she
had already consumed a portion of the drink. Will the manufacturer be liable
for negligence?
bought a bottle of a ginger beer for his girlfriend manufactured by the
defendant. The lady drank the contents of the bottle directly. Later, she
poured the remaining contents into a glass. To her utter shock, she noticed
that a dead snail popping out of the bottle. She fainted and fell ill, as she
had already consumed a portion of the drink. Will the manufacturer be liable
for negligence?
A. Yes
B. No
Ans: A
8. The gate
of railway crossing is open when a train is passing. Does this amount to
negligence?
of railway crossing is open when a train is passing. Does this amount to
negligence?
A. Yes
B. No
Ans: A
9. A
counsel by his act of commission causes any loss to the client the counsel will
be liable.
counsel by his act of commission causes any loss to the client the counsel will
be liable.
A. True
B. False
Ans: A
10. A doctor passed information to Ms. Akili
about the health of her fiancé who was HIV+. Ms. Akili broke her engagement
with her fiance. Later on he brought an action against the doctor for breach of
duty to maintain privacy. Does this amount to negligence by the doctor?
about the health of her fiancé who was HIV+. Ms. Akili broke her engagement
with her fiance. Later on he brought an action against the doctor for breach of
duty to maintain privacy. Does this amount to negligence by the doctor?
A. Yes
B. No
Ans: B
