Negligence

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Negligence

When there is some task allotted to someone, and he is under legal authority to complete that task with due care and safety. Then under those circumstances, if some accident happens due to which any common man gets injured then the legally authorized person will be held liable under wrong of Negligence. That is, where a person is held liable for performing an act, or non-performing an act due to which some accident happens can be termed under legal prospect wrong of Negligence.

Therefore, negligence as stated in Jacob Mathew vs. State of Punjab[1] can be defined as a breach of duty caused by the omission to do or not to do some act which a normal prudent man would have either done or ought not to have either done under the authority which has been assigned to him.Therefore where A was a government servant under the legal duty to check the sewage system and roads before the rainy season, which he omitted to follow resultant was that during rain there was water clogging on the roads. In this situation, if any incident happens then A would be held liable for he has omitted to perform his legal duty. 

Negligence can be or civil or criminal wrong, depending upon nature of the act done and the injury being suffered. That is, criminal negligence is one in which the act and injury suffered is of such a gross nature that the punishment is only imprisonment or any other in criminal liability, whereas in civil liability act done is not of such a gross nature. Like for example, if a driver under duty obligation has to drive a car with certain precaution. But if while driving he hits another vehicle and stops afterward he can be therefore liable for civil negligence, as negligence done is not such gross, but if he hits another vehicle and ran away as was in intoxication then he can be held liable for criminal negligence.

Essentials

1. Defendant owns duty of care towards the plaintiff

In order to perform certain act i.e. enjoy ones right the person owns certain duty of care to be taken so that it did not interfere with the right of other. The duty of care in this situation doesn’t mean any social or religious duty. But it refers to the certain risk that a person takes while doing a certain act, it is his duty that risk factor doesn’tinterfere with the right of other. That is, in simple words the duty of care is a specific legal duty to take care of which he has made a breach. In law, there is no any such particular duty defined in law, such duty depends upon the case, whether any duty involves in it or not.

Like in the case of, Donoghue vs. Stevenson[2] A purchased a bottle of ginger beer from a retailer. He went there with her female friend who was the appellant. Half portion was drunk from that bottle and when half was poured into the glass where it was found decomposing of a snail. The bottle was opaque and therefore the plaintiff was not able to note that. Resultant was that the lady claimed to suffer serious health injuries. It was held that it was not retailers rather it was manufacturer’s wrong of negligence as he owns duty of care towards all his customers and therefore he was held liable under wrong of negligence.

Moreover, whether the defendant owns duty over plaintiff or not, depends upon the reasonable foreseeability of the injury so caused to the plaintiff. Therefore, if any time during the act the defendant could reasonably foresee injury to the plaintiff, he from that time own duty to take care and if he fails he would be held liable for the same.

In case of, Dr. M. Mayi Gowda vs. the State of Karnataka, here the complainant and his family were to Mysore Dasara Exhibition ground. There they purchased elephant riding tickets. After a number of rounds of visits over the elephant, when they were about to come down during that period the elephant got panic and ran forward. Therefore, because of which who was medical practitioner suffered injuries and claimed rs.  9,90,000 for compensation. It was found that the elephant was not of unsound mind, the incident happens because of rush hours in the exhibition, and therefore the opposite party who organized the joy-ride was not held liable, as such event has happened accidentally and hence the complaint was dismissed.

2. Breach of duty

Breach of duty refers to the reasonable care that a person owns towards another in a particular situation. A duty of care depends differently on different persons. The standard of care that a person owns towards another is that of a reasonable man or of an ordinarily prudent man. If the defendant has taken reasonable care but even after taking reasonable precaution accident occurs then it can’t be constituted as negligence.

Standard of care usually depends upon the aim or the objective which is to be obtained i.e. if a chance of taking the risk involved in the certain act but that act is necessary for public welfare then it can be permitted under law. Moreover, it also depends upon the amount of risk involved, i.e. the more the amount of risk the more will be the duty of care towards the defendant. And also the standard of care also depends upon the consideration amount for which the act or service is being done, i.e. if for example, the same amount of precaution and hygienic food can’t be demanded from a street vendor as that from a hotel or restaurant as the amount of consideration varies in both.

3. Damage suffered

For holding any person liable for the act of negligence, it is also necessary that the plaintiff must prove that there has been some loss or injury being suffered. Usually where there is a claim for damages being asked by plaintiff, onus of prove will lie over the plaintiff to prove before the court of law that there has been damage suffered by him due to the act of the defendant. 

Therefore generally, the plaintiff has to prove that he has suffered some loss or damage due to the negligent act of the defendant. But many a time, it so happens that the inference of the defendant’s negligence can be drawn from the facts. The presumption that the wrongful act can’t happen unless the defendant is negligent, is based on the maxim ‘res ipsa loquitur’ which means ‘the thing speaks for itself’. However, it is also necessary to apply this maxim that plaintiff has to prove that during the time the accident occurred, the defendant was having control over it, and in such situation the burden of proof shifts from plaintiff to defendant, where he has to disapprove it.

Example, in Chief Executive Officer, CESCO vs. Prabhati Sahoo[3] the case, there was a death happened because of the electrocution of live wire conductor hanging at the lower height. The deceased person came in contact with it and hence died. There was nothing to show that the supply of electricity was totally cut off. Moreover, it was also revealed that the supply of electricity was supplied only to one of the consumer. It was held that the accident could have happened without negligence of the defendant, and hence the maxim of res ipsa loquitur was successfully applied and compensation was granted to the deceased representative.

Types of Negligence

1. Contributory Negligence

Contributory negligence refers to the type where the plaintiff by his own want of care agrees to suffer damage caused by the wrongful or negligent conduct of the defendant. Therefore, contributory negligence can be said when there is the proximate cause of damage caused due to the act or omission amounting to want of care that a prudent man would have done or in defiance of duty on the part of the plaintiff have joined with defendant[4].

In the case of Davies vs. Swan Motor Co. Ltd[5] the employee of Swansea Corporation, by not obeying the orders, riding on steps attached to dust lorry. A speedy driven omnibus colludes with the lorry, as a result, the employee died. It was held that even though the omnibus driver was responsible for negligence the employee was contributing to the fault of negligence and therefore defendant can’t be held liable, as there was contributory negligence.

2. Composite Negligence

It is a type of negligence where the act of negligence is the result of two or more persons which results in the same damage. And the persons involved in such negligent act can be termed as ‘Composite Tortfeasors’. Therefore the person liable for the wrongful act can’t plead before the court that he is liable only to the act of negligence. It only depends upon the discretion of the family.

3. Gross Negligence

Gross negligence is that type of negligence where the person is found extremely at fault. That is in such cases the defendant was so careless that it shows a complete lack of concern for others safety. Like for example, where the person voluntarily took the duty of care of another’s property, but has failed to take care even as an owner of that property then he will be liable for gross negligence.

Cases

1. Municipal Corporation of Delhi vs. Sushila Devi[6]

In this case, there was a person passing by from the road died because of the fall of a branch of the tree on the road on his head. According to the expert the tree branch had dried and hence was dangerous to the passerby. It was held that the Horticulture department of a corporation, was having the legally bound duty to take reasonable care and have regular checkups of trees and therefore the Corporation was held liable.

2. Mata Prasad vs. Union of India[7]

In this case, the gate of the railway crossing was open. The truck driver coming thereby tried to cross the lane but was hit by the train. It was held that the as the gates were not locked the truck driver could have assumed and therefore the railway authorities were held liable for negligence.

3. Booker vs. Wenborn[8]

In this case, the defendant was the border of the train. After he boarded he forgets to close the door, which was opened from the outside. As a result, it hit the porter who was standing just near the platform. It was held that the defendant was to be held liable as he was the certain duty of care to the person standing near the platform.

4. M/S Soni Hospital vs. Arun Balakrishnan[9]

In this case, there was a surgery done, after which the patient suffered from pain and mental agony. Because of which the plaintiff has to undergo another surgery where it was found abdominal pad having the label of the defendant’s hospital inside her body. It was held that the defendant was liable for negligence and was held to pay compensation to the plaintiff of rs. 3,35,000.

5. State of Gujarat vs. Laxmiben Jayantilal Sikligar[10]

In this case, the plaintiff was suffering from discomfort and pain in swallowing. And therefore went to Civil Hospital Godhra for treatment. Their doctor negligently performing surgery on her Thyroid gland, the lady suffered permanent partial paralysis of the larynx as a consequence of cutting the laryngeal nerve. The surgeon admitted that he was negligent in identifying that nerve while operating. It was held that the damage was caused due to the negligent act of the surgeon, as he was under the duty of care to take appropriate precaution during and after the operation. And therefore the plaintiff was entitled to claim of Rs. 1,20,000 plus interest @12% p.a. from the date of suit till its realization.

Frequently asked questions

  • Can negligence be a crime?

Yes, negligence can be the crime. As negligence is the breach of care which a person owns towards another for some legally bounded act. It can be punishable under civil or criminal both. It depends upon the nature of the act being done to determine whether the action is civil or criminal.

  • How can negligence be proven?

For proving negligence, the burden of proof is on the plaintiff to prove that he has suffered some damage due to the negligent act was done by the defendant. However, it may also be possible that the act of the defendant was negligent can be proven only through the facts of the case. The maxim on which it depends is res ispa loquitur meaning thereby ‘that the thing speaks for itself’.  

  • What is negligence in tort law?

Negligence in tort law refers to the negligence under civil law. That is, where due to the person negligent act plaintiff suffered some damage or injury, and for which he demands compensation then it can come under tort law negligence. Under civil law negligence, the negligent act so committed is not of so gross nature like that in case of criminal liability. Like where X a driver owns a duty of care towards the pedestrian on a road while driving, so by his negligent act if he hits other then he can be liable for the act of negligence under civil liability.

  • What is negligence duty of care?

Negligence duty of care refers to the act of defendant for which he owns certain standard legally bounded duty to take care that by his act nobody should get injured, and on failing for the same he will be liable for the breach of the duty of care under negligence.

[References]

[1] A.I.R. 2005 S.C. 3180.

[2] (1932) A.C.  562.

[3] A.I.R. 2012 (NOC) 83 (Ori.).

[4] Municipal Corpn. Of Greater Bombay vs. Laxman Iyer, A.I.R. 2003 SC 4182.

[5] (1949) 1 All. E.R. 620.

[6] A.I.R. 1999 S.C. 1929.

[7] A.I.R. 1978 All 303.

[8] (1962) 1 All. E.R. 431; (1962) 1 W.L.R. 162.

[9] A.I.R. 2011 Mad. 208.

[10] A.I.R. 2000 Guj. 180.