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Summer Internship Program 2021
Student’s Name: Anjali Mani Tripathi
Enrollment No.: 20FLICDDN
Batch Name & Year: B.A.LL.B. (Hons.) (2020-2025)
Project Title: NEGLIGENCE
SUBMITTED TO – SUBMITTED BY-
DR AVISHEK RAJ ANJALI MANI
TRIPATHI
20FLICDDN
BA-LLB(Hons.)
NEGLIGENCE
INTRODUCTION
The Indian tort is adopted from English common law formulated in 19th^ century. It is modified or altered by Indian courts on the basis of equality, justice and good conscience. The term ‘negligence’ is derived from Latin word negligentia which means ‘falling to pick up’. Negligence is defined as failure to take reasonable care towards other person where it is reasonably foreseeable that other people could be harmed by their actions or omissions. It signifies the failure of standard care taken by one person that a prudent person would exercise in similar circumstances. If someone behaved negligently the plaintiff can sue for the injury and loss. No intention to cause harm to other person is involved in negligence.
DEFINITION
According to Winfield and Jolowicz, Negligence is the breach of a legal duty of care by the plaintiff which results in undesired damage to the plaintiff. Lord Wright states that “Negligence 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 owed.”^1
ESSENTIALS OF NEGLIGENCE OF TORTS
● Duty to take care ● Breach of duty ● Causation ● Injury Duty to take care It is the very first condition under the liability if negligence that there must be a legal duty of defendant towards the plaintiff. Negligence is not just caused because someone did not do 1 https://www.toppr.com/guides/legal-aptitude/law-of-torts/negligence-tort-law/
In Municipal Corporation of Delhi v Sushila Devi, a person passing by the road died because of a branch of a tree falling on his head. The Municipal Corporation was held liable. Ordinary prudence test: The plaintiff must proof that the defendant have omitted to perform an act which a “reasonable person of ordinary prudence” would have done or not. In Blyth v Birmingham Waterworks Co. defendants installed water mains in the street with fire plugs. A plug by plaintiff’s house leaked causing water damage due to water frost. The plug worked fine in prior twenty five years. It was held that the plug worked well in prior years and the severe frost was unforeseeable hence the defendant was not held liable. Causation It is the on the plaintiff’s part to proof that defendant’s act or omission is the cause of the damage or injury suffered. The injury must be foreseeable too. It shows a link between defendant’s act and plaintiff’s injury. It has two components: ● Actual cause( or “but for” cause) ● Proximate cause(or “legal” cause) Actual cause relates to actual cause of injury suffered must be defendant’s act. It is also referred as “but for” which means but for the defendant’s actions, the plaintiff’s injury would not have occurred. Proximate cause is when defendant could not foresee the damage or it is outside the scope of the risk. Injury It is the legal damage suffered by the plaintiff be it physically or to the property of the person. The failure to take reasonable care must result in actual damage of the person to whom he owe a duty to care. The claim must be brought before the court within an appropriate time frame. The damage must not be too remote.
COMPARITIVE NEGLIGENCE
It is a type of negligence in which if the plaintiff is comparatively at fault for an injury, it means he or she also contributed to the damage. Every state does not allow the plaintiff to seek compensation in comparative negligence. The states that do not permit negligent plaintiff to seek damages use the laws of contributory negligence.
VICARIOUS LIABILITY
There are many cases where the employer, company, organization is held responsible for an act of their employee. It is a form of negligence where the defendant could be held liable for the actions of animals or other person in the course of employment. For example, a minor child’s parents could be held liable for any injury or damage caused by their child.
GROSS NEGLIGENCE
If a person’s action shows recklessness or disregard for the safety of others and yet performed the act it comes under gross negligence. The actions may be intentional that causes damage to others. It is different from others in a way where there is no intention to harm other person. A person deliberately and consciously puts other person in danger and infringe their personal rights. Example: a drunk and drive case
DEFENSES OF NEGLIGENCE
⮚ Contributory Negligence - It is the plaintiff’s failure to exercise reasonable safety. It occurs when both defendant and plaintiff are negligent to the damage occurred. Both the parties are at fault. For example if A’s driver is driving drunk and B’s driver is rashly driving then both are contributory towards the damage as both failed to take reasonable care. The plaintiff’s compensation would be decreased to certain amount which would be decided by the court. The amount of payment reduced or denied depends upon the courts.
LEADING CASES OF NEGLIGENCE
1. Donoghue v. Stevenson [1932] AC 562, HL FACTS This is one of the leading cases of negligence. In this case the plaintiff’s friend bought a ginger beer bottle for her which was opaque and the ingredients were not visible through the bottle. She drank it. When the plaintiff refilled the glass, a decomposed body of snail came along with the ginger beer. The plaintiff suffered shock and was severely ill with gastro-enteritis after the incident. Mrs. Donoghue was not able to bring a claim of breach of warranty as she was not a party to the contract. So she issued proceedings against the manufacturer. DECISION The issue raised was whether the defendant owe a duty of care to the plaintiff as there was no legal contract between them. It was held that manufacturers hold a duty of care towards his final consumer for the product. There is no need of contractual relationship. The sale is made that the product will reach to the ultimate consumer with no possible examination so here the defendant owe a duty of care for the final product. Lord Atkin also defined who is neighbour through this case law and the rule of neighbour principle was held. CONCLUSION The facts reveal the case of negligence as the manufacturer was negligent on his part which led to severe damages to the plaintiff. The necessary ingredients include foreseeability of injury and a relation of ‘proximity’ or ‘neighbour’ should exist between the party who owes a duty and the party to whom it is owed and that situation should be considered as fair, just and reasonable by the court to impose a duty. All the essentials are included in the case as a duty of care is imposed on the manufacturer. The product was packed and any possible alteration could not be done so
3. Grant v. Australian Knitting Mill HCA 35, (1933) 50 CLR 387 FACTS The plaintiff bought the underwear consisting of two underpants and two siglets. The stock was purchased by retailer with other stocks from the manufacturer. The plaintiff on wearing it developed skin irritation on ankles and the other day redness on each ankle. He applied calamine lotion and continued to wear it the whole week. The next week he changed his underwear. The skin irritation got worse and developed into dermatitis. He was confined to bed for a long time. When he sufficiently recovered, the condition soon became severe and doctor thought he might die. The appellant bought a suit on the grounds of exposure of skin to Sulphur compounds causing severe case of dermatitis purchased by respondents John Martin & Co. Ltd. and manufactured by Australian Knitting Mills Ld. DECISION The fact show that it was negligence in manufacture. The plaintiff’s skin was exposed to excess sulphite which means that someone is at fault and the appellant need not to mention the exact person. There was a duty to take care. In Donoghue v Stevenson there was no relation between the parties spoken or written but the manufacturer owe a duty of care. The defect was latent in that case and so in this case. The excessive use of sulphite in the pants was hidden defect as that of the remains of snails in the opaque bottle. The garment was made to wear on skin and the manufacturers were negligent hence liable. CONCLUSION The case reveal negligence. The purpose for which the garments were manufactured was to wear and there was no interference between the manufacturing of the garment and its selling so it was the duty of manufacturer to make the products in the that they shall meet the purpose. There was no disclaimer of it being washed before use and also the change of the garment after a week was the practice of the era. So the buyer was not negligent
and the manufacturer owe a duty here to produce safe products. The hidden defect could not be examined before the purchase. Hence the facts infers negligence.
4. Bourhill v. Young (1943) AC 92 FACTS Mr. Young was driving rashly and drove the bike past the tram at excessive speed and collided with a car 50 feet away the tramp and met with an accident due to collision with a car. He himself suffered fatal injuries. There was a pregnant lady who just got off the tramp heard the sound of collision. Mr. Young’s body was removed from the spot. The lady immediately saw the aftermath and witnessed a lot of blood on the spot. She went into nervous shock and her baby was still born. A suit of negligence was bought by the lady. DECISION It was held that no duty of care was owed by the defendant and he was not liable for bringing psychiatric harm to the claimant. The duty of care was not owed as there was no proximity between the plaintiff and the defendant and it was also unforeseeable that the sound of the accident would cause psychiatric harm to the defendant. CONCLUSION The facts reveal that the defendant was not liable for negligence as the essential that there was duty of care towards the plaintiff was missing. The consequence of the act or omission must not be unforeseeable or too remote in negligence. If we look into the facts of the case it is evident that there was no foreseeability of the psychiatric harm suffered by the lady and a loud traffic accident would harm a 50 feet away lady who did not even saw the accident or the body of the defendant. Hence the defendant could not be sued for negligence and hence no damages would be incurred by the defendant. 5. Palsgraf v Long Island Railroad Co (1928) 248 NY 339
BIBLIOGRAPHY
https://www.investopedia.com/terms/c/contributory-negligence.asp http://www.legalservicesindia.com/article/1297/Negligence-As-A-Tort:-Meaning-Essentials-And- Defences.html http://notesforfree.com/2017/12/16/negligence-law-torts-notes/ https://www.injuryattorneyofdallas.com/3-types-of-negligence-in-accidents/ www.lawteacher.net www.e-lawresources.co.uk R.K Bangia reference book: Law of Torts
