Introduction to Negligence as tort
In day to day usage Negligence denotes mere carelessness. In law of torts, negligence signifies failure to exercise the standard of care which the doer as a reasonable man should, by law, have exercised in the circumstances.
Generally speaking there is a legal duty to take care where it was or should have been reasonably foreseeable that failure to do so was likely to cause injury. Negligence is, accordingly in law of torts, a mode in which many kinds of harms may be caused, by not taking such adequate precautions as should have been taken in the circumstances to avoid or prevent that harm, as contrasted with causing such harm intentionally or deliberately. A man may, accordingly, cause harm negligently though he was not careless but tried to be careful, if the care taken was such as the court deems inadequate in the circumstances.
Generally speaking one is responsible for the direct consequences of his negligent acts where he is placed in such a position with regard to another that it is obvious that if he does not use due care in his own conduct he will cause injury to another.
Negligence in law of torts takes innumerable forms, but the commonest forms are negligence causing personal injuries or death, of which species are employers’ liability to an employee, the liability of occupiers of land to visitors thereon, the liability of suppliers to consumers, of persons doing work to their clients, of persons handling vehicles to other road-users, and so on. The categories of negligence are not closed and new varieties such as negligence causing economic loss may be recognized.
Negligence has two meanings in law of torts:
- Negligence as state of mind– Negligence is a mode of committing certain torts e.g. negligently or carelessly committing trespass, nuisance or defamation. This is the subjective meaning of negligence advocated by the Austin, Salmond and Winfield.
- Negligence as a type of conduct– Negligence in law of torts is a conduct, not a state of mind. Conduct which involves the risk of causing damage. This is the objective meaning of negligence, which treats negligence as a separate or specific tort.
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 or skill, by which neglect the plaintiff has suffered injury, to his person or property (Heaven v. Pender).
Essentials of Negligence in Law of torts
In an action for negligence, the plaintiff has to prove following essentials:
- That the defendant owed a duty of care to the plaintiff.
- That the defendant made a breach of the duty i.e. he failed to exercise due care and skill.
- That plaintiff suffered damage as a consequence thereof.
1. Duty of care to the plaintiff
The existence of a duty situation or a duty to take care is thus essential before a person can be held liable negligence. It means a legal duty rather than a mere moral, religious or social duty. The plaintiff has to establish that the defendant owed to him specific legal duty to take care, of which he has made a breach. Normally the existence of a duty situation in a given case is decided on the basis of existing precedents covering similar situations; but it is now well accepted that new duty situations can be recognized.
In Donoghue v. Stevenson, the appellant plaintiff drank a bottle of ginger beer which was brought from a retailer by her friend. The bottle which was of dark opaque glass in fact contained the decomposed body of snail (found out by her when she had already consumed a part of the contents of the bottle).
It was held that the manufacturer of bottle was responsible for his negligence towards the plaintiff. According to Lord Atkin:
“A manufacturer of the products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination and with the knowledge that the absence of the reasonable care in the preparation or putting up of the products will result in an injury to consumers’ life or property, owes a duty to the customer to take that reasonable care.”
The House of Lords also rejected the plea that there was no contractual relationship between the manufacturer and plaintiff. Lord Atkin said:
“The rule that you are to love your neighbor becomes in law ‘you must not injure your neighbor’.’’
Similarly, in Hedley Byrne &co. Ltd v. Heller & Partners Ltd, again a new duty was recognized. 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. Lord Pearce in this case said: “How wide the sphere of the duty of care in negligence is to be laid depends ultimately upon the court’s assessment of the demands of society for protection from carelessness of others.”
Whether the defendant owes a duty to the plaintiff or not depends on reasonable foresee ability of the injury to the plaintiff. In Heaven v. Pender, held that the duty arises only if a person is nearer to the person or property of another. A useful test to decide culpability is to determine what a ‘Reasonable Man’ (i.e. a man of ordinary prudence or intelligence) would have foreseen and behaved under the circumstances. The standard of foresight of the reasonable man is an impersonal or objective test. However, the standard of care of the reasonable man involves in its application a subjective element.
In Rural Transport Service v. Bezlum Bibi, the conductor of an overloaded bus invited passengers to travel on the roof of the bus. One of the passengers on the roof of the bus was struck by an overhanging branch of a tree. He fell down and died. Held that there was negligence on the part of both the driver and conductor of the bus.
In Sushma Mitra v. M.P. State Road Transport Corpn , the plaintiff was resting her elbow on the window sill. A truck coming from the opposite direction hit her elbow as a result of which she received severe injuries. Held that it is the duty of the driver to pass on the road at a reasonable distance from the other vehicles.
When the injury to the plaintiff is not foreseeable, the defendant is not liable. In Glasgow Corpn. v. Muir, the managers of the defendant corporation tearooms permitted a picnic party to have their food in the tearoom. Two members of the picnic party were carrying a big urn containing 6-9 gallons of tea to a tearoom through a passage where some children were buying ice creams. Suddenly one of the persons lost the grip of the handle of urn and six children, including the plaintiff, were injured. Held that the managers could not anticipate such an event and, therefore, she had no duty to take precautions. Hence neither she nor he corporation could be held liable.
To establish negligence in law of torts it is not enough to prove that the injury was foreseeable. But a reasonable likelihood of the injury has also to be shown. The duty is to guard against reasonable probabilities rather than bare or remote or fantastic possibilities.
In Fardon v. Harcourt, the defendant parked his car by the roadside and left a dog inside the car. The dog jumped out and smashed a glass panel. A splinter from this glass injured the plaintiff while he was walking past the car. Held that the accident being very unlikely, the defendant was not liable.
In Balton v. Stone, a person on road was injured by a ball hit by a player on a cricket ground abutting on that highway. The ground had been used for 90 years and during the last 30 years the ball had been hit in the highway on about six occasions but no one had been injured. Held that the defendant (committee and members of cricket club) were not negligent.
When the defendant owed a duty of care to persons rather than the plaintiff, the plaintiff cannot sue even if he might have been injured by the defendant’s act. Thus the duty must be owed to the plaintiff.
In Palsgraf v. Long Island Railroad Co.,a passenger carrying a package was trying to board a moving train. He seemed to be unsteady as if about to fall. A railway guard, with an idea to help him pushed him from behind. In this act, the package (of fireworks) fell resulting in an explosion, as a result of which the plaintiff was injured. Held that the guard if negligently to the holder of the package was not negligent in relation to the plaintiff standing far away (about 25 feet).
Similarly, counsel has a duty towards client. The Counsel should be careful in performing his professional duties. If a counsel, by his acts or omissions, causes the interest of the party engaging him, in any legal proceedings to be prejudicially affected. He does so at his peril. On the same analogy a person engaged in some particular profession is supposed to have the requisite knowledge and skill needed for the purpose and he has a duty to exercise reasonable degree of care in the conduct of his duties. The standard of care needed in a particular case dependents on the professional skill expected from persons belonging to a particular class. A surgeon or anesthetist will be judged by the standard of an average practitioner of class to which he belongs or holds himself out to belong. In case of specialists, a higher degree of skill is needed.
Explaining the nature of duty of care in medical profession, the Supreme Court observed in Dr. LakshmanBalkrishna Joshi v. TrimbakBapu Godbole,
“The petitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires. The doctor, no doubt, has discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency.”
2. Breach of Duty
After the plaintiff has shown that defendant owed a duty to him, the plaintiff to succeed in a claim for negligence, has next to show that the defendant was in breach of this duty. It means not taking due care which is required in a particular case.
The law requires taking of two points into to determine the standard of care required:
- The importance of the object to be attained- The law does not require greatest possible care but the care required is that of a reasonable and prudent man under certain circumstances. The amount of care, skill, diligence or the like, vary according to the particular case. The prudent man, ordinarily, with regard to undertaking an act is the man who has acquired that special skill to do the act which he undertakes; a man who has not acquired that special skill is imprudent in undertaking to do the act, however careful he may be, and, however great his skill in other things. The law permits taking chance of some measure of risks so that in public interest various kinds of activities should go on.
As has been pointed in Dabron v. Bath Tramways , that if all the trains in this country were restricted to a speed of five miles an hour, there would be fewer accidents, but our national life would be intolerably slowed down. The purpose to be served, if sufficiently important, justifies the assumption of the abnormal risk.
A balance has therefore to be drawn between the importance and usefulness of an act and the risk created thereby. Thus a certain speed may not be negligent for a fire brigade vehicle but the same speed may be an act of negligence for another vehicle.
In Latimer v. A.E.C. Ltd, due to heavy rain a factory was flooded with water, which got mixed with some oily substances. The floors in the factory became slippery. The factory owners spread all the available sawdust but some oily patches still remained there. The plaintiff slipped and was injured. Held that the defendants had acted reasonably and, therefore, they were not liable.
- The magnitude of risk- The degree of care which a man is required to use in a particular situation in order to avoid the imputation of negligence varies with the obviousness of the risk. If the danger of doing injury to the person or property of another by the pursuance of a certain line of conduct is great, the individual who proposes to pursue that particular course is bound to use great care in order to avoid the foreseeable harm. On the other hand if the danger is slight only a slight amount of care is required. Thus the driver of a vehicle has to observe a greater care when he is passing through a school zone, or he finds a blind man, a child or an old man. There is no absolute standard, but it may be said generally that the degree of care required varies directly with the risk involved.
In Kerala State Electricity Board v. Suresh Kumar, a minor boy came in contact with an overhead electric wire which had sagged to 3 feet above the ground, got electrocuted thereby and received burn injuries. The Electricity Board had a duty to keep the overhead wire 15 feet above the ground. The Board was held liable for breach of its statutory duty.
Glasgow Corp. v. Taylor, is another illustration where there was lack of due care according to the circumstances of the case. In that case poisonous berries were grown in a public garden under the control of the corporation. The berries looked like cherries and thus had tempting appearance for the children. A child, aged seven, ate those berries and died. It was found that the shrub bearing the berries was neither properly fenced nor a notice regarding the deadly character of the berries was displayed. It was, therefore, held that the defendants were liable for negligence.
Similarly, in Bishwanath Gupta v. Munna, the driving of a truck at a speed of 10 to 12 miles per hour was held to be negligent when the children playing on a road were visible to the driver and he could anticipate that some of them may cross the road on seeing the approaching truck. The duty in such a case was to drive so slow that in case of necessity the vehicle could be immediately stopped.
Good sense and policy of the law impose some limit upon the amount of care, skill and nerve which are required of a person in a position of duty, who has to encounter a sudden emergency. In a moment of peril and difficulty the court not expect perfect presence of mind, accurate judgment and promptitude. If a man is suddenly put in an extremely difficult position and a wrong order is given by him, it ought not in the circumstances to be attributed to him as a thing done with such want of nerve and skill as to amount to negligence. If in a sudden emergency a man does something which he might, as he knew the circumstances, reasonably think proper, he is not to be held guilty of negligence, because upon review of facts, it can be seen that the course he had adopted was not in fact the best.
In Jones v. Staveley, Iron & Chemical Co. Ltd., it was held that the standard of care owed by an employer to his workmen in his factory for the purpose of determining his liability to them for negligence is higher than the standard to be applied in determining whether there has been contributory negligence on the part of one of the workmen.
It is also necessary that the defendant’s breach of duty must cause damage to the plaintiff. The plaintiff has also to show that the damage thus caused is not too remote a consequence of the defendants’ negligence.
Proof of Negligence (Res Ipsa Loquitur)
The general rule is that it is for the plaintiff to prove that the defendant was negligent. Initial burden of making a prima facie case against defendant is on plaintiff, but once this onus is discharged, it will be for the defendant to prove that the incident was the result of inevitable accident or contributory negligence on the part of the plaintiff. Direct evidence of the negligence in law of torts, however, is not necessary and the same may be inferred from the circumstances of the case. Though, as a general rule, the plaintiff has to discharge the burden of proving negligence on the part of the defendant, there are, however, certain cases when the plaintiff need not prove that and the inference of negligence is drawn from the facts. There is a presumption of negligence according to the Latin maxim ‘res ipsa loquitur’ which means the thing speaks for itself. In such a case it is sufficient for the plaintiff to prove accident and nothing more. The defendant can, however, avoid his liability by disapproving negligence on his part. Certain things regarding this maxim has to be kept in mind, these include:
- The maxim is not a rule of law. It is a rule of evidence benefiting the plaintiff because the true cause of accident may lie solely within the defendant’s knowledge.
- The maxim applies when- (i) the injurious agency was under the management or control of the defendant, and (ii) the accident is such as in the ordinary course of thing, does not happen if those who have the management use proper care.
- The maxim has no application when the accident is capable of two explanations. Also, it does not apply when the facts are sufficiently known.
If a brick falls from a building and injures a passerby on the highway, or the goods while in the possession of a bailee are lost, or a stone is found in a bun, or a bus going on a road overturns, or death of a person is caused by live broken electric wire in a street, a presumption of negligence is raised.
In Agyakaur v. Pepsu R.T.C., a rickshaw going on the correct side was hit by a bus coming on the wrong side of the road. Held that the driver of bus was negligent.
In Municipal Corpn. Delhi v. Subhagwati, due to the collapse of the Clock Tower situated opposite to Town Hall in the main bazar of Chandni Chowk, Delhi, a number of persons died. The Clock Tower belonged to the Municipal Corporation of Delhi. The supreme court explained the legal position as: “There is a special obligation on the owner of the adjoining premises for the safety of the structures which he keeps beside the highway. If these structures fall into disrepair so as to be of potential danger to the passerby or to be a nuisance, the owner is liable to anyone using the highway that is injured by reason of the disrepair. In such a case, the owner is legally responsible irrespective of whether the danger is caused by patent or latent(hidden) defect.”
In Pillutla Savitri v. G.K.Kumar, the plaintiff’s husband, who was a practicing Advocate at Guntur, was relaxing in front of his tenanted premises on the ground floor. Suddenly, a portion under construction on the first floor of the building collapsed and the sun-shade and parapet wall fell down on the advocate, resulting in his death. The principle of res ipsa loquitur was applied and there was presumed to be negligence in accordance with torts law on the part of the defendants, who were getting the construction work done. The defendants were held liable to pay damages.
In Mrs. Aparna Dutta v. Apollo Hospital Enterprises Ltd., the plaintiff got herself operated for the removal of her uterus in the defendant hospital, as there was diagnosed to be a cyst in the area of one of her ovaries. Due to the negligence of the hospital surgeon, who performed the operation, an abdominal pack was left in her abdomen. The same was removed by second surgery. Leaving foreign material in the body during operation was held to be a case of res ipsa loquitur. The doctor who performed the operation and the hospital authorities were held liable to pay compensation of Rs. 5,80,000 to the plaintiff for their negligence in torts law.
In Wakelin v. London and South Western Railway Co., the dead body of a man was found near a railway crossing on the defendant’s railway. The man had been killed by a train (at the night time) bearing the usual head lights but the driver had not sounded the whistle when he approached the crossing. In an action by the widow, it was held that from these facts, it could not be reasonably inferred that the accident occurred due to the defendant’s negligence. Lord Halsburry said: “One may surmise, and it was but surmise and not evidence, that the unfortunate man was knocked down by a passing train while on the level crossing; but assuming in the plaintiff’s favour that fact to be established, is there anything to show that the train ran over the man rather the man ran against the train?
Medical and Professional Negligence
In the law of negligence in torts, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. A surgeon does not undertake that he will perform a cure; nor does he undertake to use the highest possible degree of skill, as there may be persons of higher education and greater advantage than himself; but he undertakes to bring a fair, reasonable, and competent degree of skill; and in a an action against him by a patient, the question is whether the injury complained of must be referred to the want of a proper degree of skill and care in the defendant or not. In a suit for damages the onus is upon the plaintiff to prove that the defendant was negligent and that his negligence caused the injury of which the plaintiff complained.
In Dr. Laxman v. Dr. Trimbak , court held that a doctor when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give and a duty of care in administration of that treatment. A breach of any of these duties gives a right of action for negligence to the patient.
Under English law as laid down in Bolam v. Friern Hospital Management Committee, a doctor, who acts in accordance with a practice accepted as proper by a responsible body of medical men, is not negligent merely because there is a body of opinion that takes a contrary view. MC NAIR, J., in his summing up to jury observed:
“Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clap ham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill….. A man need not to possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.”
At common law, a doctor cannot lawfully operate on adult persons of sound mind or give them any other treatment involving the application of physical force without their consent for otherwise he would be liable for the tort of trespass. But when a patient is incapable, for one reason or another, of giving his consent, a doctor can lawfully operate upon or give other treatment provided that the operation or the other treatment concerned is in the best interest of the patient if only it is carried out in order to save his life or to ensure improvement or to prevent deterioration in his physical or mental health. The test here also in determining liability would be whether the doctor acted in accordance with the practice accepted at the time by a responsible body of medical opinion skilled in the particular form of treatment. Prior consent or approval of the court for giving the treatment is not necessary. But in case of a patient of unsound mind, the court may entertain a petition for declaration that a proposed operation or treatment on the patient may be lawfully performed. These principles were laid down by the House of Lords in F v. Berkshire Health Authority.
Now coming to legal profession, till recently in England Barristers enjoyed immunity from being sued for professional negligence which was reasoned on the basis of public policy and in public interest. This immunity was extended to ‘solicitor advocates by section 62 of the Courts and Legal Services Act, 1990. But the House of Lords in Arthur JS Hall &CO. v. Simons, recently changed this law and held that now neither public policy nor public interest justified the continuance of that immunity. Thus Barristers and solicitor advocates are now liable in England for negligence like other professionals. In India section 5 of the Legal Practitioners (fees) Act, 1926 provides that no legal practitioner who has acted or agreed to act shall, by reason only of being a legal practitioner, be exempt from liability to be sued in respect of any loss or injury due to any negligence in the conduct of his professional duties. The expression legal practitioner means “an advocate, vakil or attorney of any High Court, a pleader, mukhtar or revenue agent.
After adverting to the provisions of the Act, the supreme Court in M.Veerappa’s v. Evelyn Squeira, held that an advocate who has been engaged to act is clearly liable for negligence to his is client. The Supreme Court, however, left open the question whether an advocate who has been engaged only to plead can be sued for negligence.
Kinds of Negligence in law of torts
1) Contributory Negligence in tort
In certain circumstances a person who has suffered an injury will not be able to get damages from another for the reason his own negligence has contributed to his injury; every person is expected to take care reasonable care of himself. According to john G. Fleming, “Negligence is conduct that fails to conform to the standards required by law for safeguarding others (actionable negligence) against unreasonable risk of injury.” Thus, 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. It does not mean breach of a duty towards other party but it means absence of due care on his part about his own safety.
For example, a pedestrian tries to cross the road all of a sudden and is hit by a moving vehicle; he is guilty of contributory negligence. In this case, the defendant could completely escape his liability for accident. Take another case, if the conductor of a bus invites passengers to travel on the roof of the bus, and one of the passengers travelling on the roof is hit by the branch of a tree and falls down and gets killed, there is not only negligence on the part of the conductor also contributory negligence on the part of the passengers. What amounts to contributory negligence in the case of an adult may not be so in case of a child. If, however, a child is capable of appreciating the danger he may be held guilty of contributory negligence in torts law.
In Yachuk v. Oliver Blis Co. Ltd, the defendant’s servants sold some gasoline to two boys aged 7 and 9 years. The boys falsely stated that they needed the same for their mother’s car. They actually used it for their play and one of them got injured. The defendant was held liable in full for loss.
At Common Law, contributory negligence was a complete defense, and the negligent plaintiff could not claim any compensation from the defendant. The court modified this rule and introduced the rule of “Last Opportunity” or “Last Chance The last opportunity rule may be stated as: “When an accident happens through the combined negligence of two persons, he alone is liable to the other who had the last opportunity of avoiding the accident by reasonable care”.
The rule was applied in Davies v.Mann, in this case, the plaintiff fettered the forefeet of his donkey and left it in a narrow highway. The defendant was driving his wagon too fast and the donkey was run over and killed. In spite of his negligence the plaintiff was entitled to claim compensation because the defendant had the last opportunity to avoid the accident.
The rule was further defined in the case of British Columbia Electric Co. v. Loach, “a defendant, who had not in fact the last opportunity to avoid the accident, will nevertheless be liable if he would have that opportunity but for his negligence” (Constructive Last Opportunity). The rule of last opportunity also was very unsatisfactory because the party, whose act of negligence was earlier, altogether escaped the responsibility.
The law was changed in England. The Law Reform (Contributory Negligence) Act, 1945 provides that when both parties are negligent and they have contributed to some damage, the damage will be apportioned as between them according to the degree of their fault (According to Winfield, where the plaintiff’s negligence was so closely implicated with the defendant’s negligence so as to make it impossible to determine whose negligence was the decisive cause, the plaintiff cannot recover).
The same is considered to be the position in India as well. The Kerala Torts (Miscellaneous Provisions) Act, 1976 is a law which contains provisions for apportionment of liability in torts of contributory negligence. In India, contributory negligence in torts law has been considered as a defense to the extent the plaintiff is at fault. Thus, if in an accident the plaintiff is as much at the fault as the defendant the compensation to which he would otherwise be entitled will be reduced to 50%.
2. Composite Negligence in tort
When the negligence of two or more persons result in the same damage to a third person there is said to be a ‘composite negligence’, and the persons responsible are known as ‘composite tort-feasors’.
Difference between Composite negligence and contributory negligence
In case of contributory negligence there is negligence on the part of the defendant as well as the plaintiff. Plaintiff’s own negligence contributes to harm which he has suffered whereas In the case of composite negligence, there is negligence of two or more persons towards the plaintiff, and the plaintiff himself is not to be blamed.
While contributory negligence in law of torts is a defense available to the defendant to overcome or reduce the liability in relation to the plaintiff, the composite negligence is not a defense.
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