Definition/Theories

• Two Theories: Subjective Theory

It denotes the state of mind. It is a mode of
committing certain torts and not a separate or
specific tort.

Objective Theory: It is a conduct and must be

treated as a specific tort. Donoghue V
Stevenson: It is a specific tort where there is a
duty to take reasonable care. It is a conduct
which involves the risk of causing damage and
not a state of mind
• According to Winfield: Negligence, as a tort, is
a breach of legal duty to take care, which
results in damage, undesired by the
defendant, to the plaintiff.
 ESSENTIALS
• That the defendant was under a legal duty to
take reasonable care towards the plaintiff
• That the defendant has committed the breach
of that duty
• That the plaintiff suffered damage as a
consequence
 Legal Duty
• It must be legal duty
• No place for moral, religious or social duty
• If no duty, no liability

Donoghue V Stevenson & Sons:

• The defendant was a manufacturer of ginger beer
• One bottle was sold to a consumer by a retailor
• The bottle was opaque
• The consumer found a decomposed snail and
suffered gastro-enteritis.
• The issue: Whether defandant owes a duty of care
towards plaintiff or not?
• Lower Court: No duty-Has no contractual
relation
• House of Lords: Liable: This a specific tort
where the defendant owes a duty of
reasonable care. Whether the defendant owes
a duty depends on the reasonable
forseeability of the injury to the plaintiff. If the
defendant could reasonable foresee injury to
the plaintiff, he owes a duty to prevent that
injury and failure to do so makes him liable
 Breach of Duty
Breach of duty means non-observance of due
care which is required in a particular situation
What is standard of care is of a reasonable man
or of any prudent man.

Blyth v Birmingham: The law requires the

caution which a prudent man would observe.
The standard is objective and it means what a
judge considers should have been the
standard of a reasonable man.
 Mysore State Road Transport Coporation V
Albert Disa
What amount to negligent act in a particular
situation or place may not be a negligent act
in another place or situation. In deciding what
care is required, the test is to enquire how
obivous the risk must have been to an
ordinary prudent man. Therefore, the
question depends on the facts and
circumstances of each case.
 Damage
That the negligent act has caused damage
The plaintiff has also to show that the damage
caused is not too remote consequence of the
act.
 Res Ipsa Loquitor
• General Rule: The plaintiff has to prove the
negligence of the defendant
• If the plaintiff is not able to prove the negligence, the
defendant is not liable
• Morgan V Sim: The party seeking to recover
compensation for damage must make out that the
party against whom he complains was in the wrong
or negligent.
• However, in certain cases the plaintiff need not have
to prove negligence and the inference is drawn from
the facts. This is known as presumption of negligence
as per res ipsa loquitor i.e. ‘the thing speaks for itself’.
• Municipal Corporation of Delhi V Subhagwanti
Due to collapse of Clock Tower opposite Town
Hall, a number of persons died
The court held that in these circumstances, the
fall of the Clock Tower tells its own story in
raising an inference of negligence on the part
of the defendant. Since the defendants could
not prove absence of negligence on their part,
they were held liable.