Negligence under Tort Law

What is negligence under tort law?

Meaning of Negligence under Tort Law: – Negligence is a civil tort that occurs when a person breaches his or her duty of care, causing some hardship or some legal injury to that other person. In layman’s terms, Negligence under tort law can be explained as the failure of discharge or the omission to do something due to careless behaviour.

Negligence is the amount of damages incurred which is determinative of the extent of liability in tort; but in criminal law it is not the amount of damages but the amount and degree of the negligence that is determinative of liability. Negligence is a form of tort which evolved because some types of loss or damage occur between parties that have no contract between them, and therefore there is nothing for one party to sue the other over.

Negligence in tort law may result in: –

• A mode of committing other torts such as trespassing or nuisance;
• A separate tort in itself.

Definition of Negligence under Tort Law

According to Winfield and Jolowicz, Negligence is the breach of a legal duty to take reasonable care which results in damage, undesired by the defendant to the plaintiff.

In Blyth v. Birmingham Water Works Co, Negligence under tort law was defined as the omission to do something which a reasonable man would do or doing something which a prudent or reasonable man would not do.

In Lochgelly Iron & Coal Co. vs. Mc Mullan (1934); LORD WRIGHT said, negligence under tort law means more than headless or careless conduct, whether in commission or omission; it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing.

It can be in characterized three forms: –

• Nonfeasance: – It means the act of failing to do something that a person should have done. For example, failure to repair an old building when it should have been done.

• Misfeasance: – It means the act of not doing something properly when it should have been done properly. For example, repairing an old building, but doing so using very poor-quality materials, creates a great potential for collapse that injures people.

• Malfeasance: – This means the action of doing something that should not have been done in its first place. For example, using products that are not permitted and are flammable to repair an old building, so turning the building into a fire trap, could result in an accident.

Illustration: – ‘Z’, the owner of a big dog requests his friend ‘X’ to take care of the dog while he is away. ‘X’ leaves the dog unattended which attacks a passerby injuring him badly. Here it will be said that the act occurred because of X’s negligence. In a general sense, the extent of liability in tort is determined by the number of damages caused by a party. Consequently, in criminal law, the extent of liability is determined by the amount and degree of negligence.

Essentials of Negligence under Tort Law

In an action for negligence under tort law, the plaintiff has to prove the following essentials: –

1. Duty of Care: – This is one of the essential conditions of negligence under tort law to make the person liable. It means that each person has a duty of care to another person while doing some work. Though this duty is present in all acts, but in negligence, the duty is legal in nature and cannot be illegal or unlawful and also cannot be of moral, moral or religious nature.
   • In Grant vs. Australian Knitting Mills Ltd., 1935 AC 85; the plaintiff purchased two sets of woolen underwear from a retailer and contacted a skin disease by wearing an underwear. The woolen underwear contained an excess of sulphates which the manufacturers negligently failed to remove while washing them. The manufacturers were held liable as they failed to perform their duty to take care.

2. The Duty Should be Towards the Plaintiff: – A duty arises when the law recognizes the relationship between the defendant and the plaintiff and requires the defendant to act in a certain way towards the plaintiff. It is not enough that the defendant had a duty of care towards the plaintiff, but it must also be established that is usually determined by the judge.
   • In Bourhill vs. Young, 1943 AC 92; the plaintiff, a fishwife, alighted from a tram car. While she was being helped in putting her basket on her back, a motor-cyclist after passing the tram collided with a motor car at the distance of 15 yards on the other side of the tram and died instantly. The plaintiff could see neither the deceased nor the accident as the tram was standing between her and the place of accident. She had simply heard about the collision and after the dead body had been removed she went to the place and saw blood left on the road. Consequently, she suffered a nervous shock and gave birth to a still-born child of 8 months. She sued the representatives of the deceased motor-cyclist. It was held that the deceased had no duty of care towards the plaintiff and hence she could not claim damages.

3. Breach of Duty to Take Care: – It is not enough for a plaintiff to prove that the defendant owed him a duty of care, but he must also establish that the defendant has breached his duty to the plaintiff. A defendant breaches such duty by failing to exercise reasonable care in performing the task. In simple words, it means non-compliance with the standard of care.
   • In Municipal Corporation Of Delhi vs Subhagwanti & Others, 1966 AIR 1750; a clock-tower in the heart of the Chandni Chowk, Delhi collapsed causing the death of a number of persons. The structure was 80 years old whereas its normal life was 40-45 years. The Municipal Corporation of Dellhi having the control of the structure failed to take care and was therefore, liable.

4. Actual Cause or Cause in Fact: – In this scenario, the plaintiff who is suing the defendant for negligence has an obligation to prove that the defendant’s breach of duty was the actual cause of the damages caused by him. This is often called “but-for” causation, which means that, but for the defendant’s actions, the plaintiff may not have suffered damages. For example, when a bus collides with a car, the actions of the bus driver are the actual cause of the accident.

5. Proximate Cause: – Proximate cause means “legal cause,” or the cause that the law recognizes as the primary cause of the injury. It may not be the first event that set in motion a sequence of events that led to an injury, and it may not be the very last event before the injury occurs. Instead, it is an action that produced foreseeable consequences without intervention from anyone else. A defendant in a negligence case is only responsible for those damages that the defendant could have foreseen through his actions.
   • In the case of Palsgraf vs. Long Island Railroad Co (1928), A man was hurrying while trying to catch a train and was carrying a packed item with him. The employees of the railway saw the man who was attempting to board the train and thought that he was struggling to do so. An employee on the rail car attempted to pull him inside the train while the other employee who was on the platform attempted to push him to board the train. Due to the actions of the employees, the man dropped the package. Which had contained fireworks, and exploded when it hit the rails. Due to the explosion, the scales fell from the opposite end of the station and hit another passenger, Ms. Palsgraf, who then sued the railway company. The court held that Ms. Palsgraf was not entitled to damages because the relationship between the action of the employees and the injuries caused to him were not direct enough. Any prudent person who was in the position of the railway employee could not have been expected to know that the package contained fireworks and that attempting to assist the man the railcar would trigger the chain of events which lead to Ms. Palsgraf’s injuries.

6. Consequential Harm to the Plaintiff: – Proving that the defendant failed to exercise reasonable care is not sufficient. It must also be proved that the defendant’s failure to exercise reasonable care resulted in damages caused to the plaintiff, who was owed the defendant’s duty of care. When such damage is proved, the defendant is obliged to compensate the plaintiff for the damage caused. Damage may fall in the following sections: –
   • Bodily harm i.e. harm to body;
   • Harm to the Reputation;
   • Harm to Property;
   • Financial Loss;
   • Mental Harm.
   • In Achutrao Haribhau Khodwa vs. State of Maharashtra (1996) 2 SCC 634; a cotton mop was left inside the body by the negligence of the doctor. The doctor was held liable.

What are the defenses available in a suit for negligence?

The defenses available in a suit for negligence under tort law are as follows: –

1. Contributory Negligence by the Plaintiff: – Contributory negligence means that when the immediate cause of the damage is the plaintiff’s negligence itself, the plaintiff cannot sue the defendant for damages and the defendant can use it as a defense. This is because in such a case the plaintiff is considered to be the author of his mistake. It is based on maxim volenti non fit injuria which states that if someone voluntarily puts himself in a condition which may result in loss, he is not entitled to claim for the damage caused by such loss. It was the Common law rule that anyone who by his own negligence contributed to the injury of which he complains cannot maintain an action against another in respect of it. Because, he will be considered in law to be author of his wrong.

The plaintiff is not entitled to recovery from the defendant if it is proved that: –

• The plaintiff could have avoided the consequences of the defendant’s negligence by exercise of ordinary care;
• the defendant could not avoid the consequences of the plaintiff’s negligence by the exercise of ordinary care;
• There has been as much lack of reasonable care on the part of the plaintiff as the defendant and the former cannot sue for the latter.

The burden of proving contributory negligence is prima facie on the defendant and in the absence of such evidence, the plaintiff is not bound to prove his existence.

2. An Act of God: – An Act of God is a direct, violent and sudden act of nature that could have been foreseen by any amount of human foresight and if not resisted by any amount of human care and skill. Thus, such actions which are due to the basic forces of nature come under this category. For example, hurricanes, thunderstorms, exceptionally high tides, exceptional rainfall etc. If the injury or death of any person is caused by natural calamity, the defendant shall not be liable provided he proves it in a court of law.
   • In the case of Nichols vs. Marsland (1876), the defendant had a series of artificial lakes on his land in the construction or maintenance of which there had been no negligence on the part of defendant. Owing to an exceptional heavy rain, some of the reservoirs burst and carried away four country bridges. It was held that, the defendant was not liable as the water escaped by the act of God.

3. Inevitable Accident: – An unavoidable accident can also be termed as a defense of negligence and refers to an accident that had no chance of being prevented by the exercise of normal care, caution and skill. It means a physically unavoidable accident. Inevitable accident also works as a defence of negligence. An inevitable accident is that which could not possibly, be prevented by the exercise of ordinary care, caution and skill. it means accident physically unavoidable.
   • In the case of Brown vs. Kendal (1850) the plaintiff’s and defendant dogs were fighting and their owners attempted to separate them. In an effort to do so, Defendant beat the dogs with a stick and accidentally injured the Plaintiff, severely injuring him in the eye. The Plaintiff brought suit against the Defendant for assault and battery. It was held that the injury of the plaintiff was as a result of an inevitable accident.

What is Res ipsa loquitur?

Meaning of Res ipsa loquitur: – Res ipsa loquitur is a Latin phrase that means “the thing speaks for itself.” An important maxim regarding negligence i.e Res Ipsa Loquitur is used by the courts when a negligent act cannot be explained. 
It is considered to be a type of circumstantial evidence which permits the court to determine that the negligence of the defendant led to an unusual event that subsequently caused injury to the plaintiff. Although generally the duty to prove that the defendant acted negligently lies upon the plaintiff but through res ipsa loquitur, if the plaintiff presents certain circumstantial facts, it becomes the burden of the defendant to prove that he was not negligent.

This doctrine arose in the case of Byrne vs. Boadle(1863). The plaintiff was walking by a warehouse on the road and suffered injuries from a falling barrel of flour which rolled out of a window from the second floor. At the trial, the plaintiff’s attorney argued that the facts spoke for themselves and demonstrated the warehouse’s negligence since no other explanation could account for the cause of the plaintiff’s injuries.

Thus the following are the three essential requirements for the application of this maxim: –

• The thing causing the damage must be under the control of the defendant or his servants;
• The accident must be such as would not have happened in the ordinary course of things without negligence;
• There must be no evidence of the actual cause of the accident.

How is Criminal Negligence different from Civil Negligence?

1. Criminal Negligence: – Criminal negligence refers to conduct in which a person disregards a known or apparent risk, or disregards the life and safety of others. Federal and state courts describe this behavior as negligent, where the person acts significantly different than the normal person under similar circumstances. An example is a parent leaving a loaded firearm within reach of a young child. It is important to note that criminal negligence includes knowledge of a danger, and more than a mistake or forgivable accident.

In these cases, a prosecutor must show the following to prove that an accused has committed criminal negligence: –

• He acted negligently and created a high risk of death or major bodily injury, and
• A reasonable person would know that these acts would pose such a risk.

Advocate liability for negligence in criminal matters: – The Indian position on liability for negligence of advocates is defined under section 5 of the Legal Practitioners (Fees) Act, 1925. Any legal practitioner who has acted or agreed to act shall not be exempted from liability merely by virtue of being a legal practitioner sued in respect of any loss or injury caused by any negligence in the conduct of his professional duties.

Criminal Negligence Examples: –

• When a person is driving and texting a car at the same time, and meanwhile breaks into someone else’s car, he or she commits criminal negligence because the country’s criminal laws do not allow texting and driving.
• Similarly, in a case where a person is driving under the influence of alcohol, and kills someone on the street, it can be considered as criminal negligence.
• When a nurse in a nursing home forgets to feed a patient and the patient dies due to the nurse’s negligence, the nurse can be held criminally liable because it is because of her criminal negligence that the patient is put forward for risk to life.
• A hospital caregiver who is not paying attention and who provides someone with a deadly dose of medication can be considered criminal negligence.
• A person who is presumed to be the caregiver of a nursery and fails to provide care, in exchange for which one takes another’s child, may be considered to have criminal negligence.
• A doctor who prescribes additive drugs to a patient knowing that he is allergic to it may be considered criminal negligence.
• If a doctor, in return for earning money from the services rendered by him, exchanges the lungs of a person during surgery or leaves any instrument or any dangerous substance inside his patient’s body, he is guilty of a criminal negligence.
• A parent who leaves their two-year-old at home to go to a pub may be considered criminally negligent. This is because it is a breach of their duty to care which is putting the child at substantial risk.

2. Civil Negligence: – Civil Negligence is the negligence where a person fails to perform normal care which is also known as due diligence. The standard of civil negligence is measured by what a reasonable person would have done if he was in a similar situation.

Civil Negligence Examples: – Civil negligence can be of many types, just like criminal negligence. There are many common examples which prove that negligence even in the ordinary sense can lead us to the courts.

Some examples of civil negligence are as follows: –

• A store that is very popular for beer, and usually has a lot of traffic inside the store, sells mid-season without any protection, may be reckless in its acts.
• If a pharmaceutical company launches a drug without testing it on humans, it can be considered negligent.
• A driver who drives a stop sign and goes beyond the prescribed speed limit may be considered negligent.
• If a person owns a dog and leaves it open in the courtyard of another, and the dog destroys the garden of another. The person may be considered careless.
• An office where the mopping process is going on and there is no sign of wet floor in it can be considered as negligence.
• A company which is not incorporated as per SEBI guidelines can be considered as negligent.
• A doctor operating on the wrong patient can be considered negligent.

Case Laws of Negligence under Tort Law

1. Stansbele vs. Troman (1948)

Facts of the Case: – A decorator was engaged in decorating a house. Soon after, the decorator left the house without closing the doors or informing anyone. During his absence, a thief broke into the house and stole some property, the cost of which was charged by the owner of the house from the decorator.

Judgement of the Case: – It was held that the decorator was liable because he was negligent in leaving the house open and failed in his duty of care.

2. Municipal Corporation of Delhi vs. Subhagvanti (AIR 1966)

Facts of the Case: – A very old clock tower situated right in the middle of the congested area of ​​Chandni Chowk suddenly collapsed, killing many people. The clock tower was 80 years old although the typical life span of the clock tower should have been 40-45 years. The clock tower was under the control of the Municipal Corporation of Delhi and had a duty to the citizens.

Judgement of the Case: – By neglecting to repair the clock tower, the municipal corporation of Delhi violated their duty towards the public and was thus held liable.

3. Nichols vs. Marsland (1876)

Facts of the Case: – The defendant had a series of artificial lakes on his land. There was no negligence on the part of the respondent in the construction and maintenance of the artificial lakes. Due to unexpected heavy rains, some reservoirs burst and four country bridges were washed away.

Judgement of the Case: – The court held that the defendant could not be held liable as the water had escaped from the act of God.

4. Brown vs. Kendal (1850)

Facts of the Case: – The plaintiff and defendant dogs were fighting and their owners attempted to separate them. In an attempt to do so, the defendant thrashed the dogs with sticks and accidentally injured the plaintiff, causing serious injury to his eye. The plaintiff filed a case of assault and battery against the respondent.

Judgement of the Case: – In this case, the court held that the injury of the plaintiff was caused by an unavoidable accident. So, the defendant will not be held liable for his act.