1.
When there is no intention of causing harm to the person complained of - it is called as negligence. Carelessness on the part of defendant constitutes negligence.
If, there is an unreasonable conduct followed by harm to another-it gives rise to liability for negligence. There are two theories pertaining to negligence have been given in the law of tort-
Subjective Theory-
As per this theory, negligence denotes 'state of mind'. It treats negligence as a specific tort and sets at rest all the controversy over this point. It has got support from Austin, Salmond and Winfield.
Objective Theory-
Negligence is a type of conduct and not a particular state of mind. It has been recognised by the House of Lords in Donoghue v. Stevenson, 1932 AC 562, where negligence has been treated as a specific tort.
2.
Swayne, J.-
'Negligence is the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation.'
Winfield-
'Negligence as a tort is the breach of a legal duty to the care which results in damage, undesired by the defendant, to the plaintiff.'
3.
(a) it was a legal duty of defendant to take reasonable care towards the plaintiff to avoid the damage complained of,
(b) the defendant committed a breach of that duty; and
(c) due to breach of duty plaintiff suffered damage.
Duty to take care-
A person is supposed to behave in a reasonable manner but if he deviates from acting as a reasonable person then he is said to be careless. But, for every careless act a man cannot be held responsible in law.
Criterion of duty-
To determine whether duty to take care was there or not is upto Judge. It becomes easier to decide where there is already earlier decision which have established the duty. Brett MR in Heaven v. Pender, (1883) 11 QBD 509, attempted to formulate a principle for the first time. It was established in this case that under certain circumstances, one man may owe a duty to another, even though there is no contract between them.
"One man is near to another, or is near to the property of another, a duty lies upon him not to do that which may cause a personal injury to that other, or may injure his property."
After this case, in Le Liever v. Gould, (1893) 1 QB 491, too it was held that a duty to take care did arise when the person or property of one was in such proximity to the person or property of another that, if due care was not taken, damage might be done by the one to the other.
In the case of Donoghue v. Stevenson, 1932 AC 562, Lord Atkin laid down a very important principle of determining a duty.
In this case, the defendant was a manufacturer of ginger-beer who sold the beer in a sealed and opaque bottle. A person bought it and presented it to his friend Miss Donoghue. She drank the ginger-beer. In the bottle, she found decomposed body of a snail. She fell ill and sued the manufacturer for negligence.
It may be noted here that there was no contract between the plaintiff and the defendant. Delivering the majority judgment Lord Atkin laid down the rule of determining the duty-
"The liability for negligence is no doubt based upon a general public sentiment of moral wrong doing for which the offender must pay. But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbour becomes, in law, you must not injure your neighbour; and the lawyer's question, 'who is my neighbour?' receives a restricted reply. You must take reasonable care to avoid acts or omission which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be 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."
Lord Atkin after laying down the principle of notional duty, stated that under what circumstances a manufacturer owes a duty of care towards the consumer in following words:
"........ a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer's life or property, owes a duty to the consumer to take that reasonable care."
It was held that although there was no contractual duty on the part of the defendant, but the defendant owed her a duty to take care that the bottle did not contain noxious matter and that he would be liable if that duty was broken.
Lord Atkin's principle has generally been accepted broadly but it can't be accepted as a universal rule.
4.
In the case of negligence, the onus is on plaintiff to prove the action of defendant due to which he has sustained injuries. He must prove the act or omission of the defendant so that the defendant could be held liable for damages. The act or omission must also be the proximate cause of damage to the plaintiff. Where the balance is even as to which part is in fault, the one who relies on the negligence of other is bound to turn the scale. In the case K.C. Kumaran v. Vallabh Das Vasanji, MANU/KE/0003/1969 : AIR 1969 Ker 9, it was held that the initial burden of making out a prima facie case of negligence against the defendant lies heavily on the plaintiff and once this onus is discharged, it will be for the defendant to prove contributory negligence or that the incident was the result of inevitable accident.
Defences depend upon the conditions which in general are negative tortuous liability viz., volenti non fit injuria, private defence, statutory authority act of state, remoteness of damage etc. Some of them have been explained as follows:-
(a) Contributory Negligence,
(b) Vis Major or Act of God, and
(c) Inevitable Accident
If someone has committed a negligent act and the other person is not avoiding the consequence arising out of that negligent act even when means and opportunity were afforded to do so it is called contributory negligence. It is difficult for plaintiff to claim the damages from the defendant's negligence if the plaintiff fails in exercising ordinary care, diligence and skill to avoid the consequences of defendant's negligence. It is based on the maxims - volenti non fit injuria and in jure non remota causa sed proxima spectatur.
Negligence ordinarily means breach of a legal duty to care, but when used in the expression "contributory negligence" it does not mean breach of any duty. It only means the failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes blameworthy in part as an "author of his own wrong". The question of contributory negligence arises when there has been same act or omission on the claimant's part, which has materially contributed to the damage caused, and is of such a nature that it may properly be described as negligence. Thus, to hold that the conduct of the claimant amounted to contributory negligence, there has to be some causal connection with the damage suffered by the claimant.
In the Chapter 5, we have already discussed, the Act of God or Vis Major. Any natural phenomenon like earthquake, volcano, tornado, hurricane, flood which is so straight, violent, direct, sudden and irresistible act which could not by any amount of human care and skill could have been resisted. Nugent v. Smith, (1876) 1 CPD 19, came under Vis Major or Act of God. Its defence must be the cause causans and not merely cause sine qua non of the damage complained of. It should be that extraordinary which could not reasonably be anticipated. To say that vis-major co-existed or followed on negligence is no adequate defence. In Nichols v. Marsland, 1875 LR 10 Ex 255, the defendant had various artificial lakes on his land being maintained with care and caution, a long spell of rain was witnessed and the reservoirs bursted and carried away some country barges. The action was filed but it was held that this much rain was not anticipated and the escape of water was an Act of God.
It is also a type of defence in an action for negligence. A was lying drunk on a road. B was moving in a car round a bend. Before reaching to A, B could have seen him in ordinary circumstances but a sheet of newspaper blown by wind landed on the windscreen of B's car and he could not see A and crossed over him. A got injured. But here A could not succeed as it was a case of inevitable accident.
6.
To prove the negligence of the defendant by the plaintiff may sometimes cause hardship to the plaintiff if he could not know what precise acts or omissions led to his injury or damage and that the cause of damage was known only to the defendant. In such situation, the maxim res ipsa loquitur may be applied. It is a rule of evidence. It meant that the things speak for itself i.e., that facts and circumstances which the plaintiff has proved establish a prima facie case of negligence against the defendant. The crux of the matter is that the accident should tell its own story and make a picture of negligence on the part of defendant.
Example-
(i) A person was going along a highway and he got injured by the fall of a barrel from out of the window of the defendant's ware house; Byrne v. Boadle, (1863) 2 H&C 732.
(ii) The plaintiff was injured from a cinema banner which fell from the defendant's premises when he was walking on the road; Mahindra Nath v. Mathura Das, AIR 1946 Cal 175.
(iii) Where an employee was killed by an explosion of the gas apparatus in the defendant's factory; Moore v. Fox & Sons, (1956) 1 All ER 182 CA.
(iv) Where a surgeon left a towel inside the stomach of a patient after an operation; Mohan v. Osborne, (1939) 2 KB 14.
Winfield has stated that there are two requirements for applying the maxim res ipsa loquitur:-
Evidence of Negligence on the part of defendant is necessary which caused the accident. The control is actual or not, not necessary, mere right to control is sufficient to hold the person responsible for the accident. But it is always not necessary, that all the circumstances which led to the accident be under the control of defendant, (Moore v. R. Fox & Sons) and if, there are other persons besides the defendant under whom the control was existed then mere happening of the accident is insufficient evidence against the defendant; Gee v. Metropolitan Rly., 1873 LR 8 QB 161.
If, the fact of the accident itself justifies the inference of negligence then all the circumstances may be considered with experience and wisdom. The judge also takes notice of the common experience of mankind.
Example-
(i) it is common experience which shows that a barrel of flour will not fall from an upstairs window on to a passerby in the street if those in charge take proper care; Byrne v. Boadle, (1863) 2 H&C 732.
(ii) a clock tower will not fall onto a passer by in the street if those in charge take proper care; Municipal Corporation of Delhi v. Subhagwanti, MANU/SC/0010/1966 : AIR 1966 SC 1750: (1966) 3 SCR 649.
(iii) two railway trains belonging to the same company will not collide without negligence on the part of the company or its servants; Skinner v. L.B. & S.C. Rly., (1850) 5 Ex 787.
Municipal Corporation of Delhi v. Subhagwanti, MANU/SC/0010/1966 : AIR 1966 SC 1750: (1966) 3 SCR 649.
Three persons died due to collapse of the Clock Tower which was situated opposite the Town Hall in the Chandni Chowk, Delhi. It belonged to the plaintiff i.e., under the control of the Municipal Corporation of Delhi. Three suits for damages were filed by the heirs of three deceased persons-Ramaswami, J., observed:
"It is true that the normal rule is that it is for the plaintiff to prove negligence and not for the defendant to disprove it. But there is an exception to this rule which applies where the circumstances surrounding the thing which causes the damage are at the material time exclusively under the control or management of the defendant or his servant and the happening is such as does not occur in the ordinary course of things without negligence on the part of the defendant. The doctrine of res ipsa loquitur applies in the circumstances of the present case. It has been found that the Clock Tower was exclusively under the ownership and control of the appellant or its servants. It has also been found by the High Court that the Clock Tower was 80 years old and the normal life of the structure of the top storey of the building, having regard to the kind of mortar used, should be only 40 or 45 years. There is also evidence of the Chief Engineer that the collapse was due to thrust of the arches of the top portion and the mortar was deteriorated to such an extent that it was reduced to powder without any cementing properties. It was also not the case of the appellant that there was any earthquake or storm or any other natural event which was unforeseen and which could have been the cause of the fall of the Clock Tower. In these circumstances the mere fact that there was fall of Clock Tower tells its own story in raising an inference of negligence so as to establish a prima facie case against the appellant."
In such cases, where the maxim res ipsa loquitur applies what the defendant can do to discharge his burden. In the case State of Punjab v. Modern Cultivators, MANU/SC/0011/1964 : AIR 1965 SC 17: (1965) 67 PLR 117: (1964) 8 SCR 273, the defendant, in order to discharge his burden, "can show that the breach was due to act of God or due to act of third party or any other thing, which would show that he had not been negligent".
Explanation.-
If A enters the house of B with the intention of theft. B, somehow grapples with him and during scuffle B picks a metallic block and wanted to hit A but it slips from the hand of B and falls upon a passerby who was going under the window of B's house. Here, in this case the maxim res ipsa loquitur applies but when the defendant shows as to how the accident actually occurred and there is no mistake on his part or he has taken due diligence on his part as in the present case, he will not be liable.
In P. Ramudu v. Superintendent Engineer, A.P.S.E.B., the victim and her two she buffaloes were came in contact with the G.1 wire and as a result, they were electrocated. The said wire had fallen on the ground from one end and has not been removed for continuous period of 8 days. There was no explanation by the department as to why the said wire has not been removed for continuous period of 8 days. There was negligence on the part of officials of the electricity department. Therefore, the court directed to pay Rs. 94,000 as compensation. (Writ Appeal No. 54/1999, decide on dated 4-11-2008).
In U.P. Power Corporation v. Bijendra Singh, AIR 2009 All 56, the respondent instituted a suit for damages on account of death of his elephant due to electrocution. The court held that if the enterprise is permitted to carry on a hazardous or inherently dangerous activity for its profit or for earning revenue, the law must presume that such permission is conditional on enterprise absorbing cost of any accent arising on account of such activity as an appropriate items of its overheads. Since electrocution caused such death, no differentiation can be made in respect of such liability of the authority. The question of strict liability is in built under law to avoid any accident, if not, by other measures. The death of the elephant was caused by coming in contact with high voltage open wire of electricity hanging on road, the corporation cannot avoid the liability to pay compensation to the owner of the elephant.
Plaintiff's damage must be caused by the defendant's breach of duty and not due to any other cause. Even if the damage is caused by the defendant's breach of duty, the defendant will not be liable if the damage is too remote a consequence of it, or it may be case of contributory negligence.
(a)
(b)
(c)
Grant v. Australian Knitting Mills, 1936 AC 85.
The plaintiff purchased a woollen garment from a retailer which was manufactured by the defendant. After wearing the cloth, plaintiff suffered from dermatitis due to presence of sulphites, which was negligently left in the cloth during the manufacture. Sulphites was hidden and could not be detected easily. The rule of Donoghue v. Stevenson was followed by the Privy Council and held that under prevailing circumstances, the defendants owed a duty of care towards the plaintiff even though there was no contractual relationship between plaintiff and defendant.
Privy Council rejected this argument that Donoghue's case related to food or drink where the parts were to be worn externally on the ground that 'no distinction however, can be logically drawn for this purpose between noxious thing taken internally and a noxious thing applied externally.'
Malfroot v. Noxal Ltd., 1936 AC 85.
The defendants were employed to fit a side car to plaintiff's motorcycle. The husband was driving the motorcycle with his wife; and the side car broke away from the motorcycle and both husband and wife got injured.
It was held by the court that both husband and wife could recover damages on the ground that a contractor knows that his work requires extra care as if it is not done cautiously and carefully it may expose others besides his contracting party to danger and that it will be used without intermediate examination, he is under a duty to those persons.
P.V.C. Tharakan v. K. Narayanan, MANU/KE/0045/1972 : AIR 1972 Ker 159.
In this case, a 5-year old boy was hit by a car being driven by the second defendant. The car belonged to the first defendant. The road, where the accident took place was surrounded by shops and residences. The vehicular traffic was also more.
Justice Krishna Iyer while holding the defendants liable said-
"I agree that accidents without negligence are not uncommon and every automobile casualty does not call for a rash driver as scapegoat of the law. The plaintiff must prove the defendant's negligence. It happens sometimes that children, not properly taken care of by their parents, frisk about thoughtlessly and get run over by the most careful drivers. They are cases of damnum sine injuria. Let us examine the situation more closely. A pedestrian or a cyclist may sometimes be negligent and may cause damage, but a motorist causing damage by negligent driving causes casualties when life is lost. Naturally, the very severity of the consequences must lead to greater diligence. I would therefore expect an automobile driver as a prudent person to take far more care than a pedestrian or a car driver. Similarly, driving on a city road or along a residential street which is crowded and there being shops by the road, calls for greater care on the part of the speedy motorist. Again a road which is narrow, puts the driver under a more serious obligation of circumspection. In this case, there is evidence to show that somewhere near the point of accident there was a stationary bus, thus narrowing the street available for driving. The various factors that produce accidents in an overcrowded city with narrow streets must register in the motorist's mind. Negligence is not a legal abstraction. First, there must be a duty to take care; and next the act which caused the damage must have been done without that degree of care that the law enjoins. Love thy neighbour is a moral injunction do not harm the neighbour is a legal obligation. Who is neighbour in the eyes of law has been explained by Lord Atkin in Donoghue v. Stevenson. The rule regarding the prudent man and his perspective about neighbours and the initial presumption against the motorist now spelt out by me may be viewed as too demanding but those who use vehicles in high risk circumstances must bring to bear in equally high degree of care as a safety obligation."
8.
For more than a century, in England it was held that barristers cannot be sued for breach of professional duty. It was the notion earlier that there is no contractual obligation towards their clients and the fees received by them are considered in the nature of honorarium. In Swinfen v. Chelmsford (Lord), (1860) 5 H&N 890, Pollock C.B. said-
"We are all of the opinion that an advocate in the English Bar, accepting a brief in the usual way, undertakes a duty, but does not enter into any contract or promise, express or implied. Cases may indeed, occur where, on an express promise (if he made one) he would be liable in assuming it; but we think a barrister is to be considered not making a contract with his client, but as taking upon himself an office or duty, in the professional discharge of which not merely the client but the court in which the duty is to be performed, and the public at large, have an interest."
Halsbury's Laws of England states the law as follows:
"If a barrister acts honestly in the discharge of his duty, he is not liable in action by his client for negligence or for want of skill, discretion or diligence in respect of any act done in the conduct of a cause or in setting drafts or in advising. No action is maintainable against a barrister for un-skillfully drawing pleadings. The law requires of counsel nothing but the honest discharge of his duty to the best of his judgment and he means what he does to be for the benefit of his client, he is not responsible to his client for anything he does. The immunity from action is not confined to litigation, but extends to all cases where the relation of counsel and client exists."
In our country, section 5 of the Legal Practitioners (Fees) Act, 1926 provides that no legal practitioner i.e., advocate, vakil, pleader, mukhtar or revenue agent, who has acted or agreed to act shall, by reason only of being a legal practitioner, be exempt from liability to be sued in respect of any loss or injury due to any negligence in the conduct of his professional duties.
In Manjit Kaur v. Deol Bus Service, AIR 1989 P&H 183, plaintiff's husband died in a road accident, filed an appeal through her counsel for enhanced compensation. The case remained on the daily list for two weeks and then it was dismissed in default because the counsel failed to appear on behalf of the client. The application for re-hearing of the appeal also became
time-barred, because the counsel did not communicate with the party anything about the appeal for years. The High Court found the behaviour of the counsel as incompetent and warned him for such lapses in future. He was also directed to return the fees to client and to compensate the party for costs of Rs. 1000, for re-hearing of the appeal.
9.
Every person has got a duty to behave in a responsible manner and also perform his work as a prudent person with reasonable care. Medical people are also expected to show the care and skill not as a layman but as a member of his class. Such a person when consulted by a patient owes him certain duties - viz.,
(i) first of all he has got a duty of care in deciding whether he can take up that case;
(ii) a duty of care in deciding what treatment to give; and
(iii) a duty of care in the administration of treatment.
If a breach of any of these duties are committed by the doctor, then patient has a right to sue against the doctor for the act of negligence.
The doctor must carryout his task with reasonable degree of skill and knowledge and must also exercise a reasonable degree of care. In context of medical treatment, negligence calls for treatment with difference. A doctor can be held liable for his negligence on either of two findings - one, he did not possess the skill which was prerequisite for the treatment or second, he did not exercise with reasonable competence the skill which he possessed.
Some cases regarding negligence of doctors:
Gian Chand v. Vinod Kumar Sharma, MANU/HP/0140/2008 : AIR 2008 HP 97. the victim-child had suffered minor burns and though she was admitted to the surgical ward she was shifted to the children medical ward. Due to burn injuries she could not be clothed. Therefore, she should not have been exposed to the vagaries of whether. She should have been kept in the warmest place available and probably for this reason on the first night she was sifted to the children medical ward. It appears that the doctor took umbrage to the fact that the child had been kept in his ward without his permission and forced her leave the ward. The doctor has not given any explanation as to why he shifted her out. It is held that the doctor was not only negligent but he was callous in his approach when he forced the parents to shift the child from the children medical ward to the veranda outside in the cold rainy weather especially keeping in consideration the injuries suffered by her and the fact that she could not even wear clothes. Thus, the doctor is liable for the death of the child.
Dr. Lakhman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole, MANU/SC/0362/1968 : AIR 1969 SC 128: (1969) 71 Bom LR 236: (1969) 1 SCR 206.
Defendant's son, aged 20 met with an accident on a sea beach and his left leg got fractured. He was brought to the hospital for treatment. To reduce the fracture, the doctor did not give an anaesthesia and resorted for a single dose morphin injection. He used excessive force in treating the patient as three attendants pulled the leg of the patient to adjust the bone of fractured leg. The patient suffered the shock and ultimately he died. The Supreme Court held the doctor guilty of negligence.
Achutrao Haribhau Khodwa v. State of Maharashtra, MANU/SC/0600/1996 : AIR 1996 SC 2377: 1996 ACJ 505: 1996 (II) AD (SC) 261: (1996) CPJ 8 (SC): JT 1996 (2) SC 624: 1996 (2) MLJ 105 (SC): 1996 (I) OLR (SC) 424: 1996 (2) SCALE 328: MANU/SC/0600/1996 : (1996) 2 SCC 634: (1996) 2 SCR 881.
A woman was operated for sterilisation in a Government Hospital and during operation, a mop (towel) was left inside which caused peritonitis to the woman and due to which she died. The action was filed on presumption of negligence against doctors with the application of the principle of res ipsa loquitur. The Supreme Court explained the nature of duty of care in the medical profession as follows-
"The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be admissible for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the Court finds that he has attended on the patient with due care, skill and diligence and if the patient still does not survive, or suffers a permanent ailment, it would be difficult to hold the doctor guilty of negligence. In the instant case, however, the conclusion of negligence was drawn against the doctors by applying the principle of res ipsa loquitur, and the Government was vicariously held liable."
Dr. T.T. Thomas v. Elissar, MANU/KE/0014/1987 : AIR 1987 Ker 52.
In this case the plaintiff's husband got admitted with severe abdominal pains in a hospital on 11th March, 1974. It was diagnosed as a case of acute appendicitis which required immediate operation to save the life of the patient. But, the doctor did not perform the operation and the patient died two days later i.e., on 13th March, 1974. It was held by the Kerala High Court that the doctor was negligent in performing his duty and the patient could have been saved by performing emergency operation. The doctor's plea that the patient had not consented to the operation was also rejected by the court on the ground that the burden of proof was on the defendant to show that the patient had refused to undergo the operation and in this case, the doctor had failed to prove the same.
State of Haryana v. Santra, 2000 ACJ 1188: (2000) 3 GLR 2309: JT 2000 (5) SC 34: (2000) 3 MLJ 98 (SC): 2000 (3) MPHT 150: 2000 (II) OLR (SC) 234: (2000) 125 PLR 790: 2000 (3) SCALE 417: MANU/SC/0295/2000 : (2000) 5 SCC 182. In this case Santra was having seven children and she came to CMO, Gurgaon for sterilisation which was done in a family planning programme being sponsored by the State Government. She developed pregnancy even after the sterilization operation, she gave birth to a female child increasing extra economical burden on her. The Court held that the doctor was negligent in performing his duty and he as well as State are liable for this negligence and therefore both State and doctor were liable to pay the damages to the plaintiff.
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