Group TWO

MEMBERS

 OYEET ERIDAD
 ALELE PHILLIPS
 RWOTHOMIO MALCOM SPENCER
 PABIRE DERRICK GANDHI
 SSEMUJJU ALLAN
 RWABWERA MARVIN
NEGLIGENCE

GROUP TWO
Introduction

 It is already known that the law of torts is based on the English common law. Thus, the law
relating to negligence is adopted and modified by the courts on the principles of justice,
equity and good conscience. The term Negligence is derived from the Latin word
negligentia, which means ‘failing to pick up’. In the general sense, the term negligence
means the act of being careless and in the legal sense, it signifies the failure to exercise a
standard of care which the doer as a reasonable man should have exercised in a particular
situation.
Definition of Negligence

 According to Winfield and Jolowicz, Negligence is the breach of a legal duty of care by
the defendant which results in undesired damage to the plaintiff.
 In Blyth v. Birmingham Water Works Co, 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
MEANING

 Negligence is a legal wrong that is suffered by someone at the hands of another who fails
to take proper care to avoid what a reasonable person would regard as a foreseeable risk.
 It consists doing something which an ordinary, reasonable and prudent person would not
have done or not doing something such a person would do considering the circumstance,
situation and knowledge of the parties involved.
 Law of negligence requires that a person conduct themselves in a manner that conforms
with certain standards of conduct.
It can be characterized in three forms-

 Nonfeasance: It means the act of failure to do something which a person should have
done.
 Misfeasance: It means the act of not doing an action properly when it should have been
done properly.
 Malfeasance: It means the act of doing something which should not have been done in the
first place itself.
Differences between criminal and civil negligence
Criminal Civil

 Extreme departure from what a  Not seen as radical departure from what
reasonable person would do a reasonable person would do
 Act that is so rash/ extreme  Occurs when a person fails to exercise
 ordinary care
Proof beyond reasonable doubt is
required  Less burden of proof required
torts of negligence examples

 Motor negligence
 Medical negligence
 Professional negligence
 Commercial negligence
 Trespassing
NEGLIGENCE
CASE :DONOGHUE V STEVENSON
Where: Paisley Scotland
When; 1932
Court; Scotland’s highest court  The case of Donoghue v Stevenson is used as the
House of lords( appellate court by then) basis for the legal decisions regarding the law of
Judge; lord Atkins
tort of negligence.
Issues; whether there was a duty of care
towards the plaintiff
In Donoghue v Stevenson the following
elements where proved
 The defendant was under a recognized legal duty
 That the legal duty extended to cover the plaintiff in the particular circumstances
 That the defendant breached the legal duty
 That as a result of the breach of duty by the defendant, a plaintiff suffered loss, damage or
injury
 And the loss or injury was the approximate result of the breach of duty by the defendant
ELEMENTS OF NEGLIGENCE

 Show that the defendant owed the plaintiff duty of care

 The defendant breached the standard of care (reasonable standard of care)
 The defendant’s breach caused the plaintiff injury/ loss
 The injury/ loss was foreseeable( direct connection/foreseeability)
 Did the plaintiff actually suffer the loss/harm
DUTY OF CARE

 This is an obligation not to harm other people or property

 It means that every person owes, a duty of care, to another person while performing an act.
Although this duty exists in all acts, but in negligence, the duty is legal in nature and
cannot be illegal or unlawful and also cannot be of moral, ethical or religious nature.
 Could be specific or to the general public
 In the case of Stansbele vs Troman(1948)
Standard of care

 Here have to prove that the defendant breached the standard of acre
 What a reasonable person would have done in such circumstances
 For example professional standards for example doctors. Surgeons, lawyers
In the case of Ramesh Kumar Nayak vs Union of India(1994)
Causation of Damage

 Here we have to prove that defendant’s breach actually caused the plaintiff injury or loss
 Did the defendant’s breach cause harm or loss?
 For example in a motor accident
foreseeability

 Could a reasonable person foresee anticipate the injury or harm’

 When a reasonable person is in the shoes of the defendant, could that reasonable person
anticipate that if the conduct was wrong , then the harm that has occurred could have
happened.
 For example driving after alcohol consumption
 Buying defective products
 In the case of Palsgraf vs Long Island Railroad Co(1928), 
 Proving damages

 Here the plaintiff has to prove loss/harm

 Plaintiff has to prove loss/harm
 The harm may fall into the following classes:-
a.) Bodily harm
b.) Harm to the reputation
c.) Harm to property
d.) Financial Loss
e.) Mental Harm.
 What was the harm or loss for example motor accidents, there can be loss in earning and loss in earning
capacity
 In the case of Joseph vs Dr. George Moonjely(1994) 
RES IPSA LOQUITUR

 Res ipsa loquitur is a Latin phrase that means “the thing speaks for itself.”
 This doctrine arose out of the case of Byrne vs Boadle(1863)

 Thus the following are the three essential requirements for the application of this maxim-
 1)The thing causing the damage must be under the control of the defendant or his servants

2)The accident must be such as would not have happened in the ordinary course of things
without negligence.

3)There must be no evidence of the actual cause of the accident
Defenses to tort of negligence

Contributory negligence
Act of God
Inevitable accident
Voluntary Assumption of risk
Illegality
Contributory negligence

 It means that the immediate cause of damage is the negligence of the plaintiff himself. In
such a cause the plaintiff is considered to be the author of his wrong.
 The plaintiff cannot sue the defendant for damages
 The defendant can use it as a defense
 For example in the case of “ Shelton Vs L & W Railway (1946)”
Act of God

 Is a direct, violent, and sudden act of nature which by any amount of human foresight
could have been foreseen.
 And if foreseen could not by any amount of human care have been resisted.
 If the cause of injury or death of a person is due to a natural disaster then the defendant
will not be not be liable provided he proves in courts of law.
 For example in the case “ Nichols Vs Marsland (1876)”
Inevitable accident

 It refers to an accident that had no chance of being prevented by exercise of ordinary care
and caution.
 It means a physically unavoidable accident.
 For example in the case of “ Brown Vs Kendal (1850)”
Voluntary assumption of risk

 It’s a defense specifically an affirmative defense which reduces a plaintiff’s right to

recovery against a negligent tortfeasor if the defendant can demonstrate that the plaintiff
voluntarily and knowingly assumed the risks at issue inherent to the dangerous activity in
which the plaintiff was participating at the time of his or her injury.
Categories of voluntary assumption of risks

 Primary assumption. occurs when the plaintiff know about a particular risk, and through
words or conduct accept that risk, thereby relieving the defendant of risk of defense
operates as a complete bar recovery.

 Secondary assumption of risk. Where the defendant has a continuing duty of reasonable
care to the plaintiff knows about the risk caused by the defendant’s negligence and
proceeded despite that knowledge.
continuation

 Expressed assumption. Occurs when the plaintiff explicitly accepts the risk, whether by
oral or written agreement.

 Implied assumption of risk. When the plaintiff’s conduct demonstrate the plaintiff’s
demonstrate that the plaintiff knew the risk and proceeded anyway.
Illegality

 Where the claimant’s case is connected with the fact that they have committed a criminal
act, the defense of illegality may apply.
 Public policy: many people would find it offensive that a person committing a crime could
sue for damages if they were injured as a result of doing so.
 Ashton v tunner(1981)