NEGLIGENCE
Negligence.
Negligence is the breach of legal duty to take care which results in damage,
undesired by the defendant to the plaintiff (Winfield). Negligence is an
independent tort. Its essentials are:
1. Duty to take care.
2. Breach of duty.
3. Consequent damage.
1. Duty to take care.
The leading case is Donoghue V. Stevenson, M, the manufacturer had sold ginger-beer
in an opaque bottle to a retail seller R. R sold it to A who gave a treat with it to a young
woman P. P consumed the ginger-beer, but found in the bottle a dead snail. This
seriously affected her and she became ill. She sued M, the manufacturer. In fact there
was no contractual duty of M to P, but the House of Lords, held that M was liable? Lord
Atkin's judgment is a classic. He held 'You must take reasonable care to avoid acts or
omissions which you can reasonably foresee would be likely to injure your neighbor,
who then in law is my neighbor? the answer seems to be, Persons who are so closely
and directly affected by my act that ought reasonably to have them in contemplation
as being so affected by my acts or omissions".
It was the duty of the manufacturer to take care that the opaque bottle did not contain
noxious matter. It was held that the manufacturer was liable.
This case is a milestone and the above principle is regarded as the statement of law.
The courts follow this, unless there are strong reasons to deviate from it. The "standard
of care" as applied by the courts, is the standard of a reasonable man. The care, the
skill and the diligence n Bolton V. Stone, D, a person who was on the roadside, was
injured by a cricket-ball hit by the player from the field which was about 100 yards
away from the road. There were one or two such rare occasions in the past. The court
held that the defendants (the members of the club) were not liable. The hit was so
exceptional that no prudent man would have foreseen. Further, it was too remote and
no reasonable man would have anticipated.
2. There must be a breach of duty.
The second essential condition is that there must be a breach of duty. This
is judged with reference to a “reasonable man". According to Alderson J,
"Negligence is (i) the omission to do something which a reasonable
man would do, (guided by the circumstances on hand) or (ii) doing
something which a prudent man would not do".
This is the objective standard of a reasonable man. It is the application of
“foresee-ability test” i.e. Whether a reasonable man would have foreseen.
Roe V. Minister of Health: In 1947. Dr. G. gave to R a spinal anesthetic to
conduct an operation. The anesthetic which was in a ampoule, had been
stored in phenol as usual. But due to an "invisible crack" in the
ampoule, phenol had entered and in consequence, the patient R became
paralyzed. Dr. G had taken all care as a prudent surgeon would have taken
and he was not aware of the crack in the ampoule. Held, Dr. G was not
liable. The medical literature on the subject was consulted as the set
standard and Dr. G was held not negligent.
3. Consequent damage.
There must be the injury to the plaintiff as a direct consequence of
the negligence of the defendant. It must not be too remote. The leading
cases are (i) Donoughue V. Stevenson (ii) Bolton V. Stone (iii) The wagon
Mound case etc.
Contributory Negligence: Meaning
This is a defence open to the defendant, in an action for negligence. This is
based on the principle that no doubt, the defendant is, in fact negligent
but the plaintiff also has contributed his negligence, and hence the
plaintiff should not be allowed to take advantage of his own tort of
negligence. The maxim is "in pari delicto potior est conditio defendatis"
(If both parties are equally to blame, the condition of defendant is to be
preferred). Both are authors responsible for the injury. Of course, the
burden of proof lies on the defendant to establish contributory negligence
of the plaintiff. The question in each case is: who caused the accident?
(Winfield)
i) If it were the defendant, the plaintiff can recover damages in spite of
negligence (Rule of last opportunity: Davis V. Mann)
ii) If it were the plaintiff, he cannot recover damages in spite of defendant's
negligence (Butterfield V. Forrestor).
iii) If it were both the plaintiff and defendant, the plaintiff cannot recover.
Da vies V. Mann: P had tied the forefeet of his donkey and had let loose on
the highway. D who was going at a smartish pace in his wagon (horse
driven), ran over and killed the donkey. P sued D. It was held that D had
the last opportunity to avoid the accident. Hence, D was liable.
Butterfieid V. Forrester: D wrongfully obstructed the highway by putting a
pole across the road. P who was riding violently saw the pole from a
distance of about 100 ft. away, but came against the pole and was thrown
over by the pole and was injured. It was held that D was not liable. The
reason: If P had exercised due care, he could have avoided the accident,
this decision has been modified later in Davies V. Mann.
Rule of last opportunity: This is the rule now in operation.
In British India Electric Co. V. Loach: The rule was applied to constructive
last opportunity. In this case, P, a wagon driver was driving negligently on
the level crossing. D's driver who was driving a tram came at a fast speed,
saw the wagon on the tramline, and applied the brakes. But, as the brakes
failed, he dashed against P and P was killed. P's representative sued D.
It was found that the brakes were defective and. hence D had the last
opportunity. If the brakes were in order, he could have averted the accident.
He has failed to do so and hence, D was held liable.
As this rule was also not free from doubt, the Parliament enacted in England
the Law Reforms Act 1945. It provides that when both P and D are at fault
the claim of P will not be defeated, but would be reduced to such extent as
the court thinks just and equitable.
Alternate Danger doctrine: Jones V. Boyce
This is also called as the dilemma principle. Such a situation arises, when
the plaintiff, P is put in a position of imminent personal danger by the
wrong doing of the defendant. In order to avoid the danger, P suffers injury.
In such cases, D is liable.
Jones V. Boyce: D, a Coach-driver was driving with P, so negligently and
with so much speed that P was alarmed. Going down the hill, the coach's
coupling gave way; It struck a post and was about to be turned down. P, to
save himself jumped out and was injured. He sued D. Held D liable.
If P had not jumped out, he would not have been injured, as the coach came
to rest later without any trouble. Even then D was held liable as he had
created a dilemma to P.
Res ipsa loquitur. (The thing itself speaks)
This is part of the rule of evidence. In cases of negligence, the burden of
proving negligence is on the plaintiff, but Res ipsa loquitur is an exception.
This is a case where the event "tells its own story" clearly and speaks to the
defendant to disprove. Eg. The presence of a pair of scissors in the stomach
of a patient P, 2 days after the operation is over, or the presence of a stone
in a loaf of bread, tells its own story. The court presumes the negligence of
the Defendant.
Byrne V. Boadle: A barrel of flour rolled out of an open doorway of the
upper floor of the go down of D, and fell on P who was going on the street.
The burden was on D to prove that he was not negligent. Held, D liable.
In State of Punjab V. M/s Modern Cultivators, a canal was under the care
of the State. Due to its negligence there was a breach and water flooded the
fields of P. P suffered losses and sued the State. Held, the State was liable.
Res ipsa loquitur was applied
