Module V: Negligence

Meaning

1. No precise definition
2. Jacob Mathew v. State of Punjab  Definition has 3 constituents of negligence:
 Legal duty to exercise due care
 Breach of duty
 Consequential damage
3. 3 meanings:
 State of mind opposed to intention
 Careless conduct
 Breach of duty of care  imposed by common or statute law

Essentials

1. Duty of Care
2. Breach of Duty of Care (breach duty owed to plaintiff)
3. Damages

1. Duty of Care
 Legal duty not social or religious etc.
 Specific duty exists and breached.
 No specific meaning of duty  depends on case to case.
 No meaning of relationship of parties for duty to arise  based on relation of parties in
litigation before the judges.

Donoghue v. Stevenson
A purchased bottle of ginger beer for friend. Friend consumed it then emptied rest of contents
into tumbler  decomposed body of snail found. Friend alleged she fell sick and sued
manufacturer.
Defences: (1) owe no duty of care to plaintiff  court held they owe duty to take care bottle
did not contain noxious matter + manufacturer owes duty of care to anyone expected to

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consume their products. (2) Privity of contract  if A & B have contract and damage to C then
C can’t sue even in tort. This was held in Winterbottom v. Wright  overturned in present
case Action for tort = independent of contract.

Duty depends on reasonable foreseeability of injury

 If injury reasonably foreseeable, by act or omission  defendant liable.

 Duty of care = avoid act or omission causing reasonable, probable injury if duty not
observed.
 To decide culpability – what would reasonable man do?
 How would reasonable man behave in certain circumstances?
 Test  would what ordinary prudent man do?
 Standard of foresight should be reasonable  not someone who has nonchalant disregard
even in the most obvious dangers.
 Someone who is free from over apprehension and over confidence = reasonable person.

Booker v. Wenborn
The defendant boarded a train and left the door open which opened on the outside. The plaintiff,
a porter got hit by the door when the train started moving and was injured. The defendant was
held liable because a person who boards the train owes a duty of care to the person standing
outside.

Ishwar Devi v. UoI

A man was about to board a DTU bus, his leg was only on the foot board when the conductor,
in a hassle rang the bell signalling the driver to start the bus. The driver overtook another
stationary bus in a haste and the man was squashed between the 2 busses and sustained serious
injuries and died. Action brought by widow of deceased. Defendant held liable. (elaborate on
conduct of driver and conductor)

No liability when no Foreseeability

Ryan v. Youngs

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The servant of the defendant suddenly died while driving a lorry and caused injury to the
plaintiff as a result. The driver appeared to be quite healthy and so his death could not have
been foreseen by the defendant. The court held it to be an Act of God and defendant was not
liable.

Reasonable Foreseeability does not mean Remote Possibility

Bolton v. Stone
Batsman hit a ball really high and it crossed the cricket fence and went onto the highway and
injured the plaintiff. The defendants, the committee and members of the cricket club were not
held liable for negligence as this had happened before as well only a few times and nobody had
ever been injured. Thus, there was a very remote possibility of anyone getting injured.

2. Breach of Duty of Care

Standard of Care
(a) Importance of object of the act
(b) Magnitude of Risk
(c) Consideration for the services etc offered

(a) Importance of the Object of the Act

 Greatest possible degree of care not required  only as much as reasonable person would
do
 Taking risks to a certain extent permitted  in public interest various activities need to go
on
 Trains could be run at 5 km/hr but nation would slow down
 Balance b/w importance or usefulness of act vs. risk created
 Certain speed non-negligent for ambulances but negligent for other vehicles

K. Nagireddi v. State of Andhra Pradesh

Plaintiff had orchards with number of fruit trees. Gov. built canal without cementing walls and
floors. Excess water from the canal was drawn by roots of trees which died. Plaintiff brought
action of negligence. Defendant not held liable

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 (b) Magnitude of Risk involved
 What is negligence in one situation may = not negligence in another.
 Same amount of care not required in all situations.
 Degree of care depends on the amount of risk involved.
 Magnitude of risk determines the amount of care.
 Amount of care is usually determined on the basis of what a reasonable man would apply.
E.g.s:
1. Driver has to apply more care will driving when it is drizzling
2. Transporter of petrol more careful compared to transporter of milk/ water
3. Gun keeper more careful compared to person armed with stick
4. Transporting inflammable goods more care compared to transporting ordinary goods.
5. People doing hazardous jobs more care compared to ordinary job doers.
 There is no absolute standard of care  differs from case to case

Veeran v. Krishnamoorthy
6-year-old boy knocked down by a lorry while waiting to cross the road. A group of boys was
waiting to cross and some of them had already crossed. The driver could see them 75-100 yards
away. He was held liable for negligence because he should have anticipated something to
happen when kids were crossing.
It was held in this case that the standard of care is to be different when it comes to children
because of their mental development. Thus, when it comes to children, the standard of care
should be more.

Glasgow Corp. v. Taylor

A public garden had poisonous berries on bushes which looked like cherries and enticing to
kids. One kid ate the berried and died. There was no proper fencing or any sign warning about
the poisonous berries. The defendants were held liable.

(c) Amount of Compensation paid for the services, etc. provided

The degree of care depends upon the amount of compensation paid by the defendant for the
services provided to him. E.g.
1) If a person buys water from a roadside trolley for 10-15 p. can expect clean drinking
water but a person  mineral water  10 rs.  higher expectation of degree of care.

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 2) If a person pays 3000 – 5000 rs. in a luxury hospital per day  expects comfort,
convenience, treatment of disease and not just sterilization of the disease.
3) If you pay 25 p for a tea at a dhaba, you can’t expect the chair you are sitting on to not
give away. However, if you are paying Rs 50 at 5 star hotel, you expect better quality
and a safer chair. There should be no difference b/w hotel owner and the guest.

Klaus Mittelbachert v. East India Hotels Ltd.

Plaintiff got paralysed after jumping into the swimming pool of a 5 star hotel. Defendants were
held liable as quality of service expected is high because it is charging the premium rate to its
customers. It was observed that there was no difference between the owner of the hotel and the
guests and so the safety of the guests was of prime concern.

3. Damage

 Damage must be caused.

 Not too remote.
 Onus of proof of damage on plaintiff.
 Facts necessary to decide the quantum of damages are relevant.
 Duty to assess damage on courts.
 Courts resorts to own rules to decide the quantum of damages.
 Every question which helps plaintiff in obtaining final judgement must be decided and
determined by the courts such as  proper measure of damages, remoteness of damages,
how much damages is the plaintiff actually entitled to.

Proof of Negligence: Res Ipsa Loquitur

 Gentle rule  plaintiff has to prove that the defendant was negligent.
 Initial burden of proof on plaintiff.
 He has to at least prima facie show that negligence on part of defendant.
 If the onus of proving this is discharged, the burden of proof shifts to the defendant and he
has to then proof that it was an inevitable accident or contributory negligence, etc.
 If the plaintiff is unable to prove negligence, defendant not held liable.

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In Morgan v. Sim it was held that - The party seeking compensation must show that the party
against whom he is complaining is in the wrong. The burden of proof clearly lies upon him. If
he then leaves the case on even scales and does not satisfy the court that it was occasioned by
negligence or a default of the other party, the action cannot succeed.

Res Ipsa Loquitur

 Direct evidence of negligence not necessary  presumptions can be drawn from

circumstances.
 If plaintiff can’t, prima facie, through direct or circumstantial evidence establish negligence
 defendant not liable
 General rule  plaintiff to discharge burden of proof on defendant.
 In some cases plaintiff doesn’t need to prove negligence when inference of negligence
drawn from facts of case
 There is a presumption from the facts of the case according to maxim  res ipsa loquitor
 thing speaks for itself.
 In such cases  facts show that accident couldn’t have occurred unless negligence on part
of defendant  presumption of negligence raised by law.
 Plaintiff to prove only accident occurred.
 Defendant can absolve liability by disproving negligence

Application of maxim

 For maxim to apply  at the time of accident

i. Circumstances in exclusive control and management of defendant or his servant
ii. Accident not occurred duty to ordinary circumstances
iii. Occurred due to negligence of defendant
 If maxim proved  burden of proof from plaintiff to defendant
 Plaintiff to prove accident  defendant to disprove negligence
 Sometimes, mere proof that accident occurred + unknown cause + no evidence of
negligence + peculiar circumstances claim in clear voice that someone’s negligence =
maxim may apply.
 Maxim  not rule of law  rule of fact benefitting plaintiff  not required to prove
negligence

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 If accident consistent with negligence of defendant rather than with any other cause  facts
not known to plaintiff but ought to be known to defendant  maxim applies.

Byrne v. Boadle

A barrel of flour rolled down the top floor of plaintiff’s warehouse  fell on plaintiff walking
down the street below. It was held that there was sufficient proof of negligence + no evidence
on how accident happened but, not ordinary circumstance and thus, couldn’t have happened
without someone’s negligence. Maxim Res Ipsa Loquitur applied.

Similarly,

Scott v. London Docks

Merchandise lowered in a crane slipped out of its fastenings and fell upon plaintiff. Held that
maxim applied. Couldn’t have happened without someone’s negligence.

Chief Executive Officer, CESCO v. Prabhati Sahoo

Deceased died by electrocution from live wire hanging at lower height. No evidence to show
power had been completely cut off. Supply was on to one house. Court held maxim true and
compensation given to representatives of the deceased.

Foreign matter left inside after surgery

A.H. Khodwa v. State of Maharashtra

Woman got sterilization operation done after childbirth  mop left inside her  she died. Res
ipsa loquitur applied. State running hospital held liable.

Maxim not applicable if not proven that negligence of defendant was the cause

R.S.R.T.C. v. Smt. Sagar Bai

Accident of bus due to mechanical failure. No evidence of negligence on part of bus driver.
Res ipsa loquitur not applicable.