The jurisprudential concept of negligence defies any practice definition. Currently, in forensic speech, negligence has three meanings which are a state of mind (in which it opposed to intention, careless conduct, and the breach of duty to take care. All this is imposed on people either by statute law or common law. These three things apply in several situations, but any of them doesn’t eliminate the other ones.[1]
Definition
Negligence means a breach of duty that is caused by omission to do something which a prudent man when advised on those considerations which commonly administer human affairs conduct would do or something which a person would not do. An action for negligence proceeds upon the idea of an obligation or duty on the part of the defendant to use care, and a breach of it to the injury of the plaintiff.[2]
Therefore, negligence amounts to the absence of care which a reasonable man would take in the circumstances. The law does not consider carelessness in general. It only considers carelessness where there is a duty to take care and where failure in that duty has caused damage. Whenever negligence takes place and the plaintiff suffers injury, he has a right to sue for damages.
There cannot be liability for negligence unless there is a breach of some duty. Therefore, the appellant has to prove to the court by showing evidence that the following three are present:
- Existence of duty to take care
- Failure to maintain that standard of care (Breach of duty)
- Damage suffered on account of breach of duty[3]
The law of negligence is the application of morality and common sense to the activities of a common man. If an act is done by a person and this act is such that he cannot reasonably foresee that he will thereby injure another, he will not be liable whether he does the act intentionally or not.[4]
Essentials of Negligence
As stated above, there are three essentials of negligence.
Existence of Duty
Existence of a duty to take care is essential before a person can be held liable for negligence. Yesterday’s liberty or privilege may become a duty today. This is because negligence’s law is influenced by economic, social, and political consideration.
Lord Atkin laid down the general principle of foreseeability and proximity applicable in solving cases presenting the existence or otherwise of a new duty situation in the landmark case of Donoghue v Stevenson.[5]
In this case, the plaintiff with one of his friends went to a café in Paisley for refreshments. They ordered a bottle of ginger beer and two slices of ice cream. This beer was served to them in a dark opaque glass and was made by the defendant, Stevenson. While pouring the beer, the remains of a decomposed snail floated out. As a result of the impurities of the ginger beer and the sight of the snail which the plaintiff (Stevenson) had already consumed, she suffered from severe gastroenteritis and shock.
House of Lords held that Stevenson owed a duty to take that the bottle didn’t have any harmful matter and that he would be liable because that duty was not performed.
Breach of Duty
In addition to the existence of a duty, one more essential of proving negligence is the failure to maintain that standard of care. The amount of care may vary to the greatest extent, while the standard itself remains the same. If the danger of causing injury to the person or property of another by pursuing a particular line of conduct is more, then more care is required. Whereas, if the danger is slight, only a little amount of care is needed.
In Manchester Corporation v Markland[6], The Manchester corporation’s service water pipe in a road burst and caused a pool of water to form on the road. The water lay unheeded for three days. On the third day, a frost took place, because of which water froze, and ice was formed. Due to all of this, a motor-car skidded and knocked down, and a man was killed.
Wife of the deceased filed a petition under the Fatal Accidents Act, 1846 against the owner of the motor-car and the Corporation. It was held exonerating the owner of the motor-car that the Corporation was liable in not having taken prompt steps to attend to the leak and so to prevent the road from being dangerous to traffic.
Damage suffered on account of breach of duty
Third essential in a suit for damages for negligence is that injury should be suffered by the plaintiff on account of breach of duty. Even if the first two essentials are present, i.e. there was a duty that should have been taken care by the defendant and that he breached the duty. Still, the plaintiff did not suffer any injury due to that breach of duty, then the suit for negligence will have no standing in law.
In Austin v Great Western Rly[7], A was carrying B (her son who was of three years of age and was liable to pay half amount of the fare) in her arm. She only purchased a ticket for herself, and not for her son. Negligence of the Railway Company led to an accident of the train, and B was injured. When A took her ticket, the servants on the Railway Company did not inquire anything regarding the age of B. A did not have any intention to defraud the Railway Company. B brought a suit for damages against the Railway Company.
The court held that any passenger who has been injured by the negligence of a railway company could sue them in tort. But only if they have knowingly permitted him to enter the train, whether or not there is a contract for carriage between him and the company. Thus, B was entitled to recover damages from the railway company, for he had been accepted as a passenger.
Defences for Negligence
Contributory Negligence
Contributory negligence means the negligence when consequences arising from the negligence of some other person are not avoided, even when means and opportunity are afforded to do so. It is the non-exercise of ordinary diligence and care by the plaintiff, which would have avoided the consequences of the negligence of the defendant. Law considers such an act that contributed to the injury of the plaintiff. When such an act is proved, the plaintiff himself is held liable for his injury.
In Butterfield v Forrester[8], the defendant set up a pole across a street road, which was discernible from 100 yards. The plaintiff came galloping on his horse and rode against the obstruction and fell with the horse. In a suit for damages, the plaintiff failed as he was too at fault in not slowing down the horse when the obstacle was visible from 100 yards.[9]
Act of God (Vis Major)
Act of god or Vis Major is a violent and inevitable act of nature which could not have been foreseen human foresight or, even if foreseen, could not by any amount of human care and skill have been avoided.
For example. In the case of Nicholas v Marsland[10], the defendant owned a series of artificial lakes on his land, in the construction of which there had been no negligence. Because of a very unusual rain, so great that it broke the reservoirs. Due to this, four-country bridges were carried away. The court held that defendant wasn’t liable because this happened because of escaping of the water and the water ran due to act of god.[11]
Inevitable accident
Another defence of negligence is an inevitable accident. Inevitable means something that cannot be avoided. Therefore, an unavoidable accident is the one that could not be prevented even if caution and care are taken.
In Stanley v. Powell[12], both the plaintiff and the defendant were members of a very famous shooting party. One day they went for pheasant shooting. The defendant shot a pheasant, but unfortunately, this shot glanced from a nearby oak tree, and the plaintiff suffered injuries. The court held that this accident was inevitable, and therefore the defendant was not held liable for the same.[13]
Reference
[1] Jacob Mathew v State of Punjab AIR 2005 SC 3180
[2] “What is negligence?” (Accessed on 17th October at 3:47 pm)
https://lawhandbook.sa.gov.au/ch29s05s01.php
[3] Kishori Lal v Chairman, ESI Corpn. AIR 2007 SC 819
[4] Rajkot Municipal Corpn. v MJ Nakum (1997) 9 SCC 552
[5] (1932) AC 562.
[6] (1936) AC 360
[7] (1867) 2 QB 442
[8] (1809) 103 E.R. 926
[9] “Negligence as A Tort: Meaning Essentials and Defences: An Overview” (Accessed on 18th October at 5:13 pm)
[10] (1875) LR 10 Ex 255
[11] Supra note 9
[12] (1891) 1 QB 86
[13] Supra note 9
