Tort of Negligence Module III

Negligence as state of mind

Subjective theory: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 Salmond, Austin and Winfield.

Negligence consists in the mental attitude of undue indifference with respect to one’s conduct and its consequences.

It signifies total or partial inadvertence of the defendant to his conduct and for its consequences.

Negligence as type of conduct- objective theory Pollock : it is an objective fact and not state

of mind or form of the mensrea at all, but a particular kind of conduct.- Conduct which involves the risk of causing damage. This is the objective meaning of negligence which treats negligence as a separate or specific tort.

It is breach of duty to take care and to care means to take precautions against the harmful results of one’s actions and to refrain from unreasonably dangerous kind of conduct.

Eg.: to drive in night without light……

Reconciliation of two theories

Negligence is sometimes used in one sense –subjective and sometimes it is used in other sense – objective and therefore its meaning depends upon the context in which it is used.

When it is contrasted with Intention, it is used in subjective sense. The willful wrongdoer desires the harmful consequences and therefore does the act in order that they may ensue. The negligent wrongdoer does not desire the harmful consequences but in many cases is careless whether they ensue or not and therefore does the act notwithstanding the risk that may ensue.

Willful wrongdoer is liable because he desires to do the harm , the negligent wrongdoer may be liable because he does not sufficiently desire to avoid it.

When negligence is contrasted with inevitable accident it means a particular kind of conduct.

In cases where there is no question of wrongful intention but the point to be determined is as to whether the wrongdoer caused the harm without any fault on his part or by his unintentional fault it is decided on the basis as to whether his conduct confirmed to the standard of reasonable man.

He is liable only when he has not taken due care which a reasonable man would have taken. In such cases the state of mind of the wrongdoer is irrelevant and every thing is judged objectively.

Kinds Advertent negligence- wilful or recklessness. Harm

done is foreseen as possible or probable but it is not willed. Eg.: furious driving in crowded street ……

Inadvertent or simple negligence- result of thoughtlessness, forgetfulness or ignorance. Harm done is neither foreseen nor wilful. Eg.; a doctor who treats a patient improperly through negligence.

The tort of neg. always requires some form of careless conduct which is usually, although not necessarily, the product of inadvertence. What constitutes carelessness is the conduct and not the result of inadvertence.

Rajkot Municipal Corporation v Manjul Ben Jayantilal Nakum [(1997) 9 SCC 552]

Jacob Mathew v State of Punjab [ AIR 2005 SC]

The jurisprudential concept of negligence differs in civil and criminal law. For negligence to amount to an offence the element of mensrea must be shown to exist.

In criminal law it is not the amount of damages but the amount and degree of negligence that is determinative of liability.

Actionable negligenceIt 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 (1883) 11 QBD 503

Negligence definedNegligence is

◦the omission to do something that a reasonable person would do

or◦doing something which a prudent

and reasonable person would not do

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Essentials of Negligence

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In order to succeed in a negligence action the plaintiff must establish on the balance of probabilities that:

the defendant owed the plaintiff a duty of care

the defendant fell below the required standard of care (breach of duty), and

the plaintiff suffered damage that was: caused by the defendant’s breach

of duty, and not too remote

Duty of care

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A duty is imposed on a person by law to act with care towards others. If this duty exists and there is a failure to act carefully and another suffers loss, then the tort of negligence is committed.The defendant owes the plaintiff a duty of care if it is reasonably foreseeable that any carelessness on the part of the defendant could harm the plaintiff. This is a question of fact.The modern version of negligence was established in 1932 in the decision in Donoghue v Stevenson [1932] AC 562

Doctrine of Heaven v. Pender

Lord Esher- notion of proximity under certain circumstances, one man may

owe a duty to another, even though there is no contract between them. If one man is near to another, or is near to the property of another, a duty lies upon him not to do that which may cause a personal injury to that other, or may injure his property.

a duty to take due care did arise when the person or property of one was in such proximity to the person or property of another that, if due care was not taken, damage might be done by the one to the other.”

Donoghue v Stevenson [1932] AC 562Issues That the defendant did not owe any duty of

care towards the plaintiff and That the plaintiff was a stranger to the contract

and thus her action was not maintainable.

Held: The liability for negligence is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief.

The neighbour principle

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… The rule that you are to love your neighbour becomes, in law, you must not injure your neighbour; and the lawyer’s question, ‘who is my neighbour?’ receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, 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 contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.Lord Atkin, Donoghue v Stevenson [1932] AC 562

at 580

Lord Atkin, Donoghue v Stevenson [1932] AC 562 at 599

A manufacturer of 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 reasonable care in

the preparation or putting up of the products will

result in an injury to the consumer’s life or

property, owes a duty to the consumer to take

that reasonable care.

Neighbour test – applied and approved Grant v Austrailian Knitting Mills Ltd,

1936Barnett v Packer & co. (1940)....piece of wire in sweetsAustin v Great western rly (1867)Any passenger whohas been injured by the

negligence of the rly co. Can sue them in tort if they have invited or knowingly permitted him to enter the train whether or not there is also a contract for carriage between him and the company.

Reasonable foreseeability of injuryWhether defendant owes a duty of care to

palintiff or not depends upon the reasonable forseeability of injury to the plaintiff.

Standard of reasonable man- what a reasonable man would have foreseen and behaved under the circumstances. The standard of foresight of reasonable man is impersonal or objective test as it is independent of the idiosyncrasies (patterns of behaviour) of the particular person whose conduct is in question.

The reasonable man is free from both over apprehension and over confidence.

Duty of care – Booker v. Wenborn (1962)- The defendant boarded a train which

had just started moving but kept the door of the carriage open. The door opened outside, and created a danger to those standing on the platform. The plaintiff, a porter, who was standing on the edge of the platform was hit by the door and injured.

It was held that the defendant was liable because a person boarding a moving train owed a duty of care to a person standing near it on the platform.

Safdar hussain v UOI (1978)Clerk’s act in keeping the safe

key in hidden place in a locked almirah rather than in his personal custody according to consistent practice of chief booking clerks did not amonut to gross negligence.

Rural Transport Service v Bezlum Bibi AIR (1980) Cal 165

The conductor of an overcrowded bus invited passengers to travel on the roof of the bus. The driver ignored the fact that there were passengers on the roof and tried to overtake a cart. As a result, a passenger was hit by a branch of tree, fell down, received injury and died.

It was held that both the driver and the conductor were negligent towards the passengers, there was also contributory negligence on the part of the passengers including the deceased, who took the risk of travelling on the roof of the bus.

Sushma Mitra v M.P. State Road Transport Corpn. AIR (1947) A.C.J. 87 (M.P.)

The plaintiff was resting her elbow on the window sill. A truck coming from opposite direction hit her inher elbow as a result of which she received severe injuries.

Habit of resting elbow on window sill is so common that it must enter into contemplation of a reasonable dirver. It is the duty of the driver to pass on the road at a reasonable distance from the other vehicles.

When the defendant is not liable for negligence When the injury to the plaintiff is not foreseeable

then the def is not liable.Cates v Mongini Bros (1917)Latent defect in the suspension rod of the ceiling fan

in the D restaurant fell on the head of pGlassgow corporation v Muir Picnic party permitted by d......two members of

picnic party carrying a big urn containing 6-9 gallons of tea to a tea room throug a passage where childrens are buying sweets and ice cream. Suddenly one of the person lost the grip.......children injured......managers could not anticipate such an event would happen as a consequence of tea urn being carried throug a passage and there fore she had not duty to take precautions.

When the def owes a duty of care to persons rather than ptf- Plt. Cannot sue. Palsgraaf v. Long Island Railroad Co. The plaintiff with a package was trying to board

a moving train. Two servants of the defendant came to help her. One of them pushed her from the back. At this moment the package fell on the rail track. The package contained fireworks and it exploded. The plaintiff was injured. She sued the defendants alleging negligence on the part of their servants.

It was held that she could not recover. Cardozo CJ said, the conduct of the defendant’s servant was not wrong. Relatively to her it was not negligence at all.

No liability when injury is not foreseeableGlasgow Corp. v. Muir– The manageress of the defendant

Corporation tea-rooms permitted a picnic party. Two members of the picnic party were carrying a urn of tea through a passage. There were some children buying sweets and ice-cream. Suddenly, one of the persons lost his grip and the children including Eleanor Muir were injured.

It was held that the manageress could not anticipate that such an event would happen as a consequence of tea urn being carried through the passage, and, therefore, she had no duty to take precautions against the occurrence of such an event.

Reasonable foreseeability does not mean remote possibility- reasonable likelihood of the injury also to be shown

Bolton v. Stone– A batsman hit a ball and the ball went

over a fence and injured a person on the adjoining highway. This ground had been used for about 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.

The Court of Appeal held that the defendants were liable for negligence. But the House of Lords held that the defendants were not liable on the basis of negligence.

Cases – reasonable likelihoodFardon v Harcourt 1932Dog smashed a glass pannel......Blyth v birmingham water works

co. 1836Plug in a pipeline burst due to

severe frost .......

Hill v chief constable west yorkshire 1988The constable was not liable to

mother who lost her child at the hands of a murderer who could not be detected for his earlier murders on account of error in investigation.

Held that the public policy requires fearless and efficient investigation without the shadow of potential action for damages for negligence.

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Breach of duty– Breach of duty means non-observance of

due care which is required in a particular situation. The law requires taking of two points into consideration to determine the standard of care required: (a) the importance of the object to be attained, (b) the magnitude of the risk, and (c) the amount of consideration for which services, etc. are offered.

The law permits taking chance of some measure of risk so that in public interest various kinds of activities should go on.

(a) The importance of the object to be attained K. Nagireddi v. Government of Andhra

Pradesh – Due to construction of a canal by the

state government, all the trees of the plaintiff’s orchard died. The plaintiff alleged that the government due to negligence did not cement the floor. It was held that the construction of canal was of great importance and to not cementing the floor was not negligence from the state government.

(b) The magnitude of risk –The degree of care varies according to

likelihood of harm and seriousness of injury. A person carrying a loaded pistol is to be more careful than a person carrying a stick.

Persons who profess to have special skill or who have voluntarily undertaken a higher degree of duty are bound to exercise more care than an ordinary prudent man. But, the test is the standard of the ordinary skilled man exercising and professing to have that special skill.

Kerala State Electricity Board v. Suresh Kumar – A minor boy came in contact with

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 the breach of its statutory duty.

Glasgow Corporation v Taylor7yr old boy ate poisonous berries.......

(c) The amount of consideration for which services, etc. are offered – The degree of care also depend upon the kind of

services offered by the def thus a five star hotel which charges high price from its guests owes high degree of care as regards quality and safety of its guests.

Klaus Mittelbachert v. East India Hotels Ltd. – the question of liability of a five star hotel arose to

a visitor, who got seriously injured when he took a dive in the swimming pool. It was observed that there is no difference between a five star hotel owner and insurer so far as the safety of the guests is concerned. It was also observed, a five star hotel charging high from its guests owes a high degree of care as regards quality and safety of its structure and services it offers and makes available.

iii) The plaintiff suffered damage– 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 defendant’s negligence.

Res ipsa loquitur-This maxim is not a principle of

liability but rule of evidence .Means ‘the things speaks for itself’-

the facts and circumstances which the plt. has proved established a prima facie case of negligence against defendant.

Eg.: where a surgeon left towel inside the stomach of patient after an operation

In Scott v London Dochs Co.- Earl Cj

Winfield- Two requirements of applying the rule

That the thing causing the damage must be under control of defendant

Accident must be such as could not in the ordinary course of things have happened without negligence.

i.e. When the accident explains only one thing and that is that the accident could not ordinarily occur unless the defendant had been negligent, the law raises a presumption of negligence on the part of the defendant.

M.C.D. v Subhagwanti Three persons died as a result of collapse of

clock tower situated opposite the townhall in main bazar of chandani chowk.

Ramaswami J held that doctrine of RIL applies in present case.

Clock tower was 80 years old and normal life of structure of a property should be only 40 or 45 years. There is also evidence of chief engineer that collapse wasdue to thrust of arche of top portion and mortar was deteriorated to such an extent that it was reduced to powder without any cementing properties.

State of Punjab v Modern CultivatorsIn a case where the maxim

applies what should the defendant do to discharge his burden.

The defendant in order to discharge his burden can show that the breach was due to act of god or due to act of third party or other things from which he could show that he is not negligent.

Defences to tort of negligenceVis majorInevitable accidentContributory negligenceVolenti non fit injuriaJudicial acts, executive acts and

statutory authority in very exceptional and appropriate cases

Contributory negligenceWhen 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. This is a defence in which the defendant has to prove that the plaintiff failed to take reasonable care of his own safety and that was a contributing factor to harm.

Rural Transport Service v. Bezlum Bibi (1980) – The conductor of an overcrowded bus invited

passengers to travel on the roof of the bus. The driver ignored the fact that there were passengers on the roof and tried to overtake a cart. As a result, a passenger was hit by a branch of tree, fell down, received injury and died. It was held that both the driver and the conductor were negligent towards the passengers, there was also contributory negligence on the part of the passengers including the deceased, who took the risk of travelling on the roof of the bus.

Yoginder Paul Chowdhury v. Durgadas (1972) – The Delhi High Court has held that a pedestrian who tries to cross a road all of a sudden and is hit by a moving vehicle, is guilty of contributory negligence.

Doctrine of alternative danger –There may be certain circumstances

when the plaintiff is justified in taking some risk where some dangerous situation has been created by the defendant. The plaintiff might become nervous by a dangerous situation created by the defendant and to save his person or property, he may take an alternative risk. If in doing so, the plaintiff suffered any damage, he will be entitled to recover from the defendant.

Jones v. Boyce (1816) – The plaintiff was a passenger of defendant’s coach. The coach was driven so negligently that the plaintiff jumped off the bus fearing an accident and broke his leg. It was held that the plaintiff would be entitled to recover.

Shayam Sunder v. State of Rajasthan (1974) – Due to the negligence on the part of the defendants, a truck belonging to them caught fire. One of the occupants, Navneetlal, jumped out to save himself from the fire, be struck against a stone lying by the roadside and died. The defendants were held liable.