Negligence implies absence of intention to cause the harm complained of. It means careless or unreasonable conduct. But merely unreasonable conduct without damage is not actionable though it may be a punishable offence. Such conduct when followed can cause harm to another gives rise to liability for negligence. It may be pointed out that negligence may mean a mental element in tortuous liability or it may mean an independent tort. Negligence has been viewed in three ways firstly involving a careless state of mind, secondly, a careless conduct, and thirdly done due to negligence injury and damage may be found due to breach of conduct or tort.

Definition of Negligence:

• According the Winfield and Jolowicz, Negligence is the beach of a legal duty of care by the plaintiff which results in undesired damage to the plaintiff.
• In Blyth v. Birmingham Water Works Co, (1856) 11 EX CH 781 case, negligence was defined as the omission to do something which a reasonable man would do or doing something which a prudent or reasonable man would not do.
• In Law of Torts Negligence may be defined as breach of duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would, do or doing something which a Prudent reasonable man would not do, actionable negligence consists in the neglect of the use of ordinary care or observing ordinary care and skill toward a person to whom the defendant owes a duty of observing ordinary care and skill.

In Donoghue v. Stevenson (1932) A.C. 562 case, the appellant plaintiff drank a bottle of ginger beer which was brought from a retailer by her friend. The bottle in fact contained the decomposed body of snail, which was found out by her when she had already consumed a part of the contents of the bottle. The bottle was dark opaque glass sealed with a metal cap so that its contents could not be ascertained by inspection. Court held that the manufacturer of the bottle was responsible for his negligence towards the plaintiff.

In Rural Transport Service v. Bezlum Bibi, AIR 1980 Cal 165 case, the conductor of an overloaded bus invited passengers to travel on the roof of the bus. On the way the bus swerved on the right side to overtake a cart. One of the passengers on the roof of the bus was struck by an overhanging branch of a tree. He fell down and died because of injuries. Held that there was negligence on the part of both the driver and the conductor of the bus.

Essential Ingredients of Negligence:

To establish a claim of negligence, certain essential elements must be present. These elements may vary to some extent depending on the jurisdiction, but generally include:

Duty to Care:

The standard of care is the level of caution and prudence that a reasonable person would exercise in similar circumstances. A breach of this standard is a key element in establishing negligence. The defendant owed a duty of care to the plaintiff. This duty is often based on the relationship between the parties or the foreseeability of harm. Foreseeability is often considered in determining the duty of care and proximate cause. The harm that occurred must have been reasonably foreseeable at the time of the defendant’s actions.

In Grant v. Australian Knitting Mills Ltd., 1935 AC 85 case, the plaintiff purchased two sets of woollen underwear from a retailer and contacted a skin disease by wearing an underwear. The woollen underwear contained an excess of sulphates which the manufacturers negligently failed to remove while washing them. The manufacturers were held liable as they failed to perform their duty to take care.

Duty must be Towards the Plaintiff:

It is not sufficient that the defendant owed a duty to take care. It must also be established that the defendant owed a duty of care towards the plaintiff.

Donoghue v. Stevenson, 1932 AC 562 case, carried the idea further and expanded the scope of duty saying that the duty so raised extends to your neighbour. Explaining so as to who is my neighbour LORD ATKIN said that the answer must be “the 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”.

In Bourhill v. Young, 1943 AC 92 case, the plaintiff, a fishwife, alighted from a tram car. While she was being helped in putting her basket on her back, a motor-cyclist after passing the tram collided with a motor car at the distance of 15 yards on the other side of the tram and died instantly. The plaintiff could see neither the deceased nor the accident as the tram was standing between her and the place of accident. She had simply heard about the collision and after the dead body had been removed she went to the place and saw blood left on the road. Consequently, she suffered a nervous shock and gave birth to a still-born child of 8 months. She sued the representatives of the deceased motor-cyclist. It was held that the deceased had no duty of care towards the plaintiff and hence she could not claim damages.

Breach of Duty:

The defendant had breached the duty of care. This means the defendant failed to act as a reasonably prudent person would have under the circumstances.

In Municipal Corporation of Delhi v. Subhagwanti, AIR 1966 SC 1750 case, a clock-tower in the heart of the Chandni Chowk, Delhi collapsed causing the death of a number of persons. The structure was 80 years old whereas its normal life was 40-45 years. The Court held that the Municipal Corporation of Delhi having the control of the structure failed to take care and was therefore, liable.

Causation:

There are two components of causation:

Cause in Fact (Actual Cause): Factual causation, often referred to as “cause in fact,” is one of the elements that must be established in a negligence claim. It addresses the question of whether the defendant’s conduct was a factual cause of the plaintiff’s injury. In other words, it examines whether the injury would have occurred “but for” the defendant’s actions. Thus, for a defendant to be held liable, it must be shown that the particular acts or omissions were the cause of the loss or damage sustained. Although the notion sounds simple, the causation between one’s breach of duty and the harm that results to another can at times be very complicated. The basic test is to ask whether the injury would have occurred before, or without, the accused party’s breach of the duty owed to the injured party. Even more precisely, if a breaching party materially increases the risk of harm to another, then the breaching party can be sued to the value of harm that he caused.

Proximate Cause (Legal Cause):

It is important to note that factual causation is just one part of the causation analysis. The second aspect, known as legal or proximate causation, involves determining whether it is fair and just to hold the defendant legally responsible for the consequences of their actions. Proximate cause is concerned with foreseeability and the scope of the defendant’s liability. Thus, even if the defendant’s actions were a cause in fact, the plaintiff must show that it is legally appropriate to hold the defendant responsible for the consequences. Proximate cause examines whether the harm was a foreseeable result of the defendant’s actions.

In Palsgraf v. Long Island Rail Road Co. (1928) 162 N.E. 99 case, where the plaintiff, Palsgraf, was hit by scales that fell on her as she waited on a train platform. The scales fell because of a far-away commotion. A train conductor had run to help a man into a departing train. The man was carrying a package as he jogged to jump in the train door. The package had fireworks in it. The conductor mishandled the passenger or his package, causing the package to fall. The fireworks slipped and exploded on the ground causing shockwaves to travel through the platform. As a consequence, the scales fell. Because Palsgraf was hurt by the falling scales, she sued the train company who employed the conductor for negligence. The judge decided that the defendant, a railway, was not liable for an injury suffered by a distant bystander.

In Achutrao Haribhau Khodwa v. State of Maharashtra (1996) 2 SCC 634; a cotton mop was left inside the body by the negligence of the doctor. The doctor was held liable.

Damages:

The plaintiff must have suffered actual harm or damages. Without measurable damages, there is generally no basis for a negligence claim.

Res Ipsa Loquitur (in some cases):

“Res ipsa loquitur” is a Latin phrase that translates to “the thing speaks for itself.” It is a legal doctrine often used in negligence cases to establish a presumption of negligence based on the circumstances of an accident or injury. This doctrine allows a plaintiff to shift the burden of proof to the defendant in certain situations where direct evidence of negligence may be unavailable or difficult to obtain. It is also worth mentioning that even if the doctrine is successfully invoked, the plaintiff still has the burden of proving the other elements of negligence, such as duty, breach of duty, causation, and damages. Res ipsa loquitur is a tool that aids in establishing a prima facie case but does not relieve the plaintiff of the overall burden of proving negligence.

In Municipal Corporation of Delhi v. Subhagwanti, AIR 1966 SC 1750 case, a clock-tower in the heart of the Chandni Chowk, Delhi collapsed causing the death of a number of persons. The structure was 80 years old whereas its normal life was 40-45 years. The Court held that the Municipal Corporation of Delhi having the control of the structure failed to take care and was therefore, liable. In these circumstances, the Supreme Court said that the fall of Clock Tower tells its own story in raising an inference of negligence on the part of the defendant. Since the defendants could not prove the absence of negligence on their part, they were held liable. And also, a Clock tower in the heart of the city will need extra care and if it falls and causes injury to several people, the defendants will but obviously be held liable for the same under this principle. In such cases, direct evidence of proving negligence is not important, but the plaintiff has to establish a prima facie case, either by direct or circumstantial evidence of the defendant’s negligence.

Defences for Negligence:

Contributory Negligence:

It was the Common law rule that anyone who by his own negligence contributed to the injury of which he complains cannot maintain an action against another in respect of it. Because, he will be considered in law to be author of his wrong.

In Shelton Vs L & W Railway (1946) case, while the plaintiff was crossing a railway line, a servant of the railway company who was in charge of crossing shouted a warning to him. Due to the plaintiff being deaf, he was unable to hear the warning and was consequently injured. The court held that this amounted to contributory negligence by him.

In Rural Transport Service v. Bezlum Bibi, AIR 1980 Cal 165 case, 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 he swerved the bus on the right for the purpose and went on the kutcha road, a passenger sitting on the roof was hit by a branch of a tree, he fell down, received severe injuries, and then died. It was held that both the driver and conductor were negligent towards the passengers, who were invited to sit on the roof. 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.

Act of God or Vis Major:

It is such a direct, violent, sudden and irresistible act of nature as could not, by any amount of human foresight have been foreseen or if foreseen, could not by any amount of human care and skill, have been resisted. Such as, storm, extraordinary fall of rain, extraordinary high tide, earth quake etc.

In Nicholas v. Marsland, (1875) L.R. ex. 225 case, the defendant, Marsland, constructed a dam on his land to create ornamental lakes. The dams were properly constructed and safe for all ordinary occasion. The reservoir was designed to hold a vast amount of water. However, during an unusually heavy rainfall and storm, the embankment of the reservoir collapsed, leading to the escape of a large volume of water. The rushing water caused considerable damage downstream, including the destruction of a bridge owned by the plaintiff, Nicholas. The court held that Marsland was not strictly liable for the damages caused by the escape of water because, Marsland had taken reasonable care in the construction and maintenance of the reservoir, and the collapse was an unforeseeable result of an extraordinary natural event (the heavy rainfall).

In Manindra Nath v. Mathuradas, AIR 1946 Cal 175 Case, where the defendants had erected a large hoarding on the top of a cinema theatre. A wooden-framed banner on the hoarding crumbled and fell on the plaintiff’s head during a strong storm, inflicting serious injuries. The plaintiff filed a lawsuit for damages, while the defendants claimed that the incident was caused by an act of God. It was discovered that there was no device in the hoarding frame by which the banners could be kept firmly and securely in place. It was determined that the hoarding was placed improperly due to gross carelessness and a breach of duty. During rainy conditions, proper care was not taken to attach the banner in such a way that it would not be blown into the street. The defendants should have been able to see the severity of the rains and storms and taken adequate precautions to avoid such tragedies.

In Slater v. Worthington (1941) 1 K. B. 488 case, where snow and ice had collected on the roof of the defendant’s premises due to unusually severe snowstorms. There were no efforts made to clear the snow or alert the public about its presence. The plaintiff was wounded by a fall of snow that had piled on the roof while standing on the pavement outside the premises and gazing through the defendant’s shop window. It was possible to clear the snow, but this was not done. The defendants were found to be responsible for carelessness and nuisance, and the claim that the storms were an act of God was rejected since the harm was caused directly by the snow, not the storms.

Inevitable Accident:

Inevitable accident also works as a defence of negligence. An inevitable accident is that which could not possibly, be prevented by the exercise of ordinary care, caution and skill. it means accident physically unavoidable.

In Stanley v Powell, 7 L.T.R 25 case, where, the defendant and plaintiff went for a pheasant shooting. The defendant fired a shot at a pheasant, but the bullet ricocheted into an oak tree and struck the plaintiff, causing significant injuries. The defendant was not held liable, as the event was deemed as an ‘Inevitable Accident’.

In Holmes v Mathur, (1875) LR 10 EX. 261, 267 case, where a Pair of horses were being driven by the groom of the defendant on a public highway. On account of the barking of a dog, the horses started running very fast. The groom made the best possible efforts to control them but failed. The horses knocked down the plaintiff who was seriously injured. It was held to be an ‘Inevitable Accident’ and the defendant was not held liable.

The defence of the “Act of God” is quite similar to the defence of an “unavoidable accident.” The difference is that in the instance of a divine act, there is no human interference, but this is not the case in the case of an unavoidable accident. The difference between the two may be summarised as follows:

1. While it is beyond human power to avoid an act of God despite all preparations, an accident that occurs despite conventional precautions taken to prevent its occurrence is referred to as an inevitable accident.
2. A genus is an act of God, whereas the species is an Inevitable Accident.
3. Human agency has no power over an act of God, but the human agency does have influence over an avoidable accident.
4. While an act of God is an exemption to the strict responsibility rule, this is not the case in the case of an unavoidable accident.

Conclusion:

Negligence, in the context of tort law, refers to the failure to exercise reasonable care that a prudent person would take under similar circumstances. It is the breach of a duty owed by one person to another, resulting in harm or loss. Negligence is an unintentional tort, meaning that the responsible party did not purposely cause harm, but their lack of reasonable care led to the injury or damage. The harm or loss includes, physical harm, the harm of reputation, the harm to property, money or economic loss, and mental harm or nervous shock.