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TITLE: A DETAILED STUDY ABOUT NEGLIGENCE IN TORT

INTRODUCTION
There is a moral law in this world which has its application both to individuals and
organized bodies of men. You cannot go on violating these laws in the name of your nation,
yet enjoy their advantage as individuals. We may forget truth for our conv
Gilbert Amelio
President and CEO of National Semiconductor Corp.

Conduct that falls below the standards of behavior established by law for the protection of
others against unreasonable risk of harm. A person has acted negligently if he or she has
departed from the conduct expected of a reasonably prudent person acting under similar
circumstances.
In order to establish negligence as a Cause of Action under the law of TORTS, a plaintiff must
prove that the defendant had a duty to the plaintiff, the defendant breached that duty by
failing to conform to the required standard of conduct, the defendant's negligent conduct was
the cause of the harm to the plaintiff, and the plaintiff was, in fact, harmed or damaged.
The concept of negligence developed under English Law. Although English Common Law
had long imposed liability for the wrongful acts of others, negligence did not emerge as an
independent cause of action until the eighteenth century. Another important concept emerged
at that time: legal liability for a failure to act. Originally liability for failing to act was
imposed on those who undertook to perform some service and breached a promise to exercise
care or skill in performing that service. Gradually the law began to imply a promise to
exercise care or skill in the performance of certain services. This promise to exercise care,
whether express or implied, formed the origins of the modern concept of "duty." For example,
innkeepers were said to have a duty to protect the safety and security of their guests.1
The concept of negligence passed from Great Britain to the United States as each state
(except Louisiana) adopted the common law of Great Britain (Louisiana adopted the Civil
1 http://www.legalservicesindia.com/article/article/negligence-as-a-tort-meaning-essentials-anddefences-1297-1.html
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Law of France). Although there have been important developments in negligence law, the
basic concepts have remained the same since the eighteenth century. Today negligence is by
far the widest-ranging tort, encompassing virtually all unintentional, wrongful conduct that
injures others. One of the most important concepts in negligence law is the "reasonable
person," which provides the standard by which a person's conduct is judged.
The Reasonable Person
A person has acted negligently if she has departed from the conduct expected of a reasonably
prudent person acting under similar circumstances. The hypothetical reasonable person
provides an objective by which the conduct of others is judged. In law, the reasonable person
is not an average person or a typical person but a composite of the community's judgment as
to how the typical community member should behave in situations that might pose a threat of
harm to the public. Even though the majority of people in the community may behave in a
certain way, that does not establish the standard of conduct of the reasonable person. For
example, a majority of people in a community may jay-walk, but jaywalking might still fall
below the community's standards of safe conduct.2
The concept of the reasonable person distinguishes negligence from intentional torts such as
Assault and Battery. To prove an intentional tort, the plaintiff seeks to establish that the
defendant deliberately acted to injure the plaintiff. In a negligence suit, however, the plaintiff
seeks to establish that the failure of the defendant to act as a reasonable person caused the
plaintiff's injury. An intoxicated driver who accidentally injures a pedestrian may not have
intended to cause the pedestrian's injury. But because a reasonable person would not drive
while intoxicated because it creates an unreasonable risk of harm to pedestrians and other
drivers, an intoxicated driver may be held liable to an injured plaintiff for negligence despite
his lack of intent to injure the plaintiff.
The law considers a variety of factors in determining whether a person has acted as the
hypothetical reasonable person would have acted in a similar situation. These factors include
the knowledge, experience, and perception of the person, the activity the person is engaging
in, the physical characteristics of the person, and the circumstances surrounding the person's
actions .Knowledge, Experience, and Perception The law takes into account a person's
knowledge, experience, and perceptions in determining whether the individual has acted as a
reasonable person would have acted in the same circumstances. Conduct must be judged in
2 http://legal-dictionary.thefreedictionary.com/negligence
2

light of a person's actual knowledge and observations, because the reasonable person always
takes this into account. Thus, if a driver sees another car approaching at night without lights,
the driver must act reasonably to avoid an accident, even though the driver would not have
been negligent in failing to see the other car.
OBJECTIVES

To analyse the unintentional torts in negligence.


To find out elements of negligence case.

HYPOTHESIS
Negligence in tort is an essential element in unintentional injury to someone in a situation
where you should have known your action could cause harm.
REVIEW OF LITERATURE:
WINFIELD AND JOLOWICZ: According to Winfield and Jolowicz- Negligence is the
breach of a legal duty to take care which results in damage, undesired by the defendant to the
plaintiff [Ref. Winfield and Jolowicz on Tort, Ninth Edition, 1971, p. 45].
In Blyth v. Birmingham Water Works Co., (1856) LR 11 Exch. 781; ALDERSON, B.
defined negligence as, negligence is the omission to do something which a reasonable man
would do, or doing something which a prudent or reasonable man would not do.
In Lochgelly Iron & Coal Co. v. Mc Mullan, 1934 AC 1; LORD WRIGHT said, negligence
means more than headless or careless conduct, whether in commission or omission; it
properly connotes the complex concept of duty, breach and damage thereby suffered by the
person to whom the duty was owing.
DR. S. R. KAPPOR (Law of Torts): While the importance of on-the-job training is
recognized by everyone, it is a phenomenon that is very difficult to study. Most training is
informal and hard to measure and its effects on productivity are even more difficult to
quantify. An elegant theory explaining how the quantity of training is determined and who
pays for and benefits from it has been available for more than a third of a century (Becker
1962). However, the absence of data on the key theoretical constructs of the theory--general
training, specific training, informal training and productivity growth--means that the only
3

predictions of the theory that have been tested relate to the effects of formal training and
tenure (interpreted as a proxy for informal training) on wage growth and turnover. Until
recently, definitive tests of the OJT theory were infeasible because the large number of
unobservables meant that any given phenomena had many alternative explanations (Garen,
1988). New data sets with improved measures of OJT are at last becoming available and
consequently there has been a good deal of progress recently in testing OJT theory. This
paper provides a review of this work.
SOURCES OF STUDY
Only secondary sources are available. The secondary sources include books which is
available in English, E-sources. Primary source of interview cant be conducted which
researcher unable to refer due to shortage of time
LIMITATIONS OF THE STUDY
Primary sources, compared to the secondary sources, are limited. Researcher had to rely more
on secondary sources available in books, E-Sources to gather information about the study.
The researcher was unable to visit and interviewed the personnel who are closely associated
with that information about ensuring human rights in education.

CHAPTERISATION

Introduction
CHAPTER 1: ELEMENTS OF A NEGLIGENCE CASE
CHAPTER 2: ESSENTIALS OF NEGLIGENCE IN TORTS
CHAPTER 3: THE TORT OF NEGLIGENCE
Conclusion
Bibliography

CHAPTER 1
5

ELEMENTS OF A NEGLIGENCE CASE


I want to live perfectly above the law, and make it my servant. instead of my master.
L. B. Belker

DUTY
The outcomes of some negligence cases depend on whether the defendant owed a duty to the
plaintiff. Such a duty arises when the law recognizes a relationship between the defendant
and the plaintiff, and due to this relationship, the defendant is obligated to act in a certain
manner toward the plaintiff. A judge, rather than a jury, ordinarily determines whether a
defendant owed a duty of care to a plaintiff. Where a reasonable person would nd that a duty
exists under a particular set of circumstances, the court will generally nd that such a duty
exists. In the example involving the defendant loading bags of grain onto a truck, and striking
a child with one of the bags, the rst question that must be resolved is whether the defendant
owed a duty to the child. 3In other words, a court would need to decide whether the defendant
and the child had a relationship such that the defendant was required to exercise reasonable
care in handling the bags of grain near the child. If the loading dock were near a public place,
such a public sidewalk, and the child was merely passing by, then the court may be more
likely to nd that the defendant owed a duty to the child. On the other hand, if the child were
trespassing on private property and the defendant did not know that the child was present at
the time of the accident, and then the court would be less likely to nd that the defendant
owed a duty.
BREACH OF DUTY
A defendant is liable for negligence when the defendant breaches the duty that the defendant
owes to the plaintiff. A defendant breaches such a duty by failing to exercise reasonable care
in full lling the duty. Unlike the question of whether a duty exists, the issue of whether a
defendant breached a duty of care is decided by a jury as a question of fact. Thus, in the

3 http://www.accaglobal.com/ca/en/student/exam-support-resources/fundamentals-exams-studyresources/f4/technical-articles/tort-negligence.html
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example above, a jury would decide whether the defendant exercised reasonable care in
handling the bags of grain near the child.
CAUSE IN FACT
Under the traditional rules in negligence cases, a plaintiff must prove that the defendants
actions actually caused the plaintiffs in jury. This is often referred to as "but-for" causation.
In other words, but for the defendants actions, the plaintiffs in jury would not have
occurred. The child injured by the defendant who tossed a bag of grain onto a truck could
prove this element by showing that but for the defendants negligent act of tossing the grain,
the child would not have suffered harm.4
PROXIMATE CAUSE
Proximate cause relates to the scope of a defendants responsibility in a negligence case. A
defendant in a negligence case is only responsible for those harms that the defendant could
have foreseen through his or her actions. If a defendant has caused damages that are outside
of the scope of the risks that the defendant could have foreseen, then the plaintiff cannot
prove that the defendant sanctions were the proximate cause of the plaintiffs damages. In
the example described above, the child injured by the bag of grain would prove proximate
cause by showing that the defendant could have foreseen the harm that would have resulted
from the bag striking the child. Conversely, if the harm is something more remote to the
defendants act, then the plaintiff will be less likely to prove this element. Assume that when
the child is struck with the bag of grain, the childs bicycle on which he was riding is
damaged. 5Three days later, the child and his father drive to a shop to have the bicycle xed.
On their way to the shop, the father and son are struck by another car. Although the harm to
the child and the damage to the bicycle may be within the scope of the harm that the
defendant risked by his actions, the defendant probably could not have foreseen that the
father and son would be injured three days later on their way to having the bicycle repaired.
Hence, the father and son could not prove proximate causation.

4 http://obiterj.blogspot.in/2015/01/the-tort-of-negligence-few-thoughts-on.html
5 http://wps.prenhall.com/ca_ph_blair_law_1/2/538/137983.cw/index.html
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DAMAGES
A plaintiff in a negligence case must prove a legally recognized harm, usually in the form of
physical injury to a person or to property. It is not enough that the defendant failed to exercise
reasonable care. The failure to exercise reasonable care must result in actual damages to a
person to whom the defendant owed a duty of care.

CHAPTER 2
ESSENTIALS OF NEGLIGENCE IN TORTS

The juries are our judges of all fact and of law when they choose it.
Steve Burnett
the Burnett Group

MEANING:
In everyday usage, the word negligence denotes mere carelessness. In legal sense it signifies
failure to exercise standard of care which the doer as a reasonable man should have exercised
in the circumstances. In general, there is a legal duty to take care when it was reasonably
foreseeable that failure to do so was likely to cause injury. Negligence is a mode in which
many kinds of harms may be caused by not taking such adequate precautions.

ESSENTIALS OF NEGLIGENCE: - In an action for negligence, the plaintiff has to prove


the following essentials: 7
DUTY TO TAKE CARE: One of the essential conditions of liability for negligence is that the
defendant owed a legal duty towards the plaintiff. The following case laws will throw some
light upon this essential element. In Grant v. Australian Knitting Mills Ltd., 1935 AC 85; the
plaintiff purchased two sets of woolen underwear from a retailer and contacted a skin disease
by wearing an under wear. The woolen 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 TO WHOM: Donoghue v. Stevenson, 1932 AC 562 carried the idea further and
expanded the scope of duty saying that the duty so raised extends to your neighbour.
6 Dr. S.K. Kapoor, Law of Torts and Consumer Protection Act, 6th Edition 2003; Published by
Central Law Agency, Allahabad.
7 http://injury.findlaw.com/accident-injury-law/elements-of-a-negligence-case.html
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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.
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. In Bourhill v. Young, 1943 AC 92; 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.

BREACH OF DUTY TO TAKE CARE: Yet another essential condition for the liability in
negligence is that the plaintiff must prove that the defendant committed a breach of duty to
take care or he failed to perform that duty. In Municipal Corporation of Delhi v. Subhagwanti,
AIR 1966 SC 1750; 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 Municipal Corporation of Dellhi having the control of the structure
failed to take care and was therefore, liable. In Municipal Corporation of Delhi v. Sushila
Devi, AIR 1999 SC 1929; a person passing by the road died because of fall of branch of a tree
standing on the road, on his head. The Municipal Corporation was held liable. 8
CONSEQUENT DAMAGE OR CONSEQUENTIAL HARM TO THE PLAINTIFF: The last
essential requisite for the tort of negligence is that the damage caused to the plaintiff was the
result of the breach of the duty. The harm may fall into following classes:-physical harm, i.e.
harm to body; harm to reputation; harm to property, i.e. land and buildings and rights and
interests pertaining thereto, and his goods; economic loss; and mental harm or nervous shock.
8 http://tort.laws.com/tort-law
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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.
DEFENCES FOR NEGLIGENCE:
In an action for negligence following defences are available:1. 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. Butterfield v. Forrester, (1809) 11 East 60; the defendant had put a pole
across a public thoroughfare in Durby, which he had no right to do. The plaintiff was
riding that way at 8O clock in the evening in August, when dusk was coming on, but the
obstruction was still visible from a distance of 100 yards, he was riding violently, came
against the pole and fell with the horse. It was held that the plaintiff could not claim
damages as he was also negligent.
2. 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 Nichols v.
Marsland, (1875) LR 10 Ex.255; the defendant had a series of artificial lakes on his land
in the construction or maintenance of which there had been no negligence. Owing to an
exceptional heavy rain, some of the reservoirs burst and carried away four country
bridges. It was held that, the defendant was not liable as the water escaped by the act of
God.9
3. 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 Brown v. Kendal, (1859) 6 Cussing 292; the plaintiffs and defendants dogs were
fighting, while the defendant was trying to separate them, he accidentally hit the plaintiff
in his eye who was standing nearby. The injury to the plaintiff was held to be result of
9 http://wps.prenhall.com/ca_ph_blair_law_1/2/538/137983.cw/index.html
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inevitable accident and the defendant was not liable. In Holmes v. Mather, (1875) LR 10
Ex.261, 267; a pair of horses were being driven by the groom of the defendant on a public
highway. On account of barking of a dog, the horses started running very fast. The groom
made 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 liable. In Stanley v. Powell, (1891) 1 QB 86; the plaintiff and the
defendant, who were members of a shooting party, went for pheasant shooting. The
defendant fired at a pheasant, but the shot from his gun glanced off an oak tree.

CHAPTER: 3
12

THE TORT OF NEGLIGENCE


Is a sacred realm of privacy for every man and woman where he makes his choices and
decisions-a realm of his own essential rights and liberties into which the law, generally
speaking, must not intrude.
-Bringham

Torts are legal wrongs that one party suffers at the hands of another. Negligence is a form of
tort which evolved because some types of loss or damage occur between parties that have no
contract between them, and therefore there is nothing for one party to sue the other over.
In the 1932 case of Donoghue v Stevenson, the House of Lords decided that a person should
be able to sue another who caused them loss or damage even if there is no contractual
relationship. Donoghue was given a bottle of ginger beer by a friend, who had purchased it
for her. After drinking half the contents, she noticed that the bottle contained a decomposing
snail and suffered nervous shock as a result. Under contract law, Donoghue was unable to sue
the manufacturer because her friend was party to the contract, not her. However, the House of
Lords decided to create a new principle of law that stated everyone has a duty of care to their
neighbour, and this enabled Donoghue to successfully sue the manufacturer for damages.
Lets consider a hypothetical case and use it to demonstrate how the tort of negligence works.
10

Harry is involved in an accident in which his car is hit by one driven by Alex. As a

consequence of the accident Harry breaks a leg and is unable to work for two months. Can
Harry sue Alex for damages? On the face of things the answer seems obvious. Harry was
injured as a result of Alex driving into his car and so it seems fair that he should be able to
sue him. However, think of the situation from Alexs point of view, is it fair that Harry should
be able to sue him just like that? People have accidents everyday should they all be able to
sue each other for every little incident? If they are then the courts would be overwhelmed
10 http://study.com/academy/lesson/negligence-torts-definition-and-cases.html
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with cases. Thankfully, in order to prove negligence and claim damages, a claimant has to
prove a number of elements to the court.

ELEMENT 1 THE DUTY OF CARE


As we saw earlier, the concept of a duty of care was created in the Donoghue case. The
House of Lords stated that every person owes a duty of care to their neighbour. The Lords
went on to explain that neighbour actually means persons so closely and directly affected
by my act that I ought reasonably to have them in contemplation as being so affected. This is
a very wide (and complicated) definition that could include almost anyone if still in
operation

today

the

courts

would

most

certainly

be

overrun

with

cases.

The later cases of Anns v Merton London Borough Council (1977) and Caparo Industries plc
v Dickman (1990) restricted the definition a little by introducing proximity and fairness.
Proximity simply means that the parties must be sufficiently close so that it is reasonably
foreseeable that one partys negligence would cause loss or damage to the other. Fairness
means that it is fair, just and reasonable for one party to owe the duty to another.
What does this mean for Harry? I think youll agree that Alex owes him a duty of care. There
is sufficient proximity (ie Alex drove into Harrys car); it is reasonably foreseeable that a
collision between the cars could cause Harry some injury, and it seems fair, just and
reasonable for Alex to owe a duty of care to Harry (and indeed all other road users).

ELEMENT 2 BREACH OF DUTY OF CARE


In many cases brought before the courts it is evident that a duty of care exists between the
defendant and the claimant. The real issue is whether or not the actions of the defendant were
sufficient to meet their duty. To determine this, the court will set the standard of care that they
should have met. This standard consists of the actions which the court considers a reasonable
person would have taken in the circumstances. If the defendant failed to act reasonably given
their

duty

of

care,

then

they

will

be

found

to

have

breached

it.

This reasonable standard may be adjusted given the actual circumstances of the case. For
14

example, if the claimant is vulnerable, such as being disabled or frail, it is reasonable to


expect the defendant to have paid them special attention or taken extra care over them as
compared to someone who is fit and healthy.
Other circumstances which may be taken into account include whether:

The actions the defendant took are in line with common practice or industry
recommendations. If they were, then it is likely that the defendant will be found to
have met their duty unless the common practice itself is found to be negligent.

There was some social benefit to the defendants actions. If there was, then the court
may consider it inappropriate for them to be found to have breached their duty.

The defendants actions had a high probability of risk attached to them. If they did,
then the court will expect them to show they took extra precautions to prevent loss or
damage.11

There were practical issues that prevented reasonable precautions being taken, or
unreasonable cost would have been involved in taking them. If there were, then the
court is unlikely to expect the defendant to have taken them in order to meet their duty
of care.

The defendant is a professional carrying on their profession. If they were, then the
court will judge their actions against a reasonable professional in their line of work,
rather than just any ordinary person. If professional guidelines are in place then the
court will judge the defendants actions against these rather than its own expectations.

Back to the case of Harry and Alex. In determining whether or not Alex broke his
duty of care, a court will consider whether or not, given the circumstances, he drove
as a reasonable person would have. For example, if it was foggy or wet at the time,
he would be expected to show that he drove cautiously. In determining whether
Alexs actions were reasonable, evidence may have to be taken from witnesses and
11 M.N. Shukla, The Law of Torts and Consumer Protection Act, 18th Edition 2010; Published by
Central Law Agency, Allahabad.
15

expert analysis of the crash may be required. For now, lets assume Alex was not
driving reasonably.

Res ipsa loquitur


In extraordinary cases, the facts may be so overwhelmingly in favour of the claimant that the
court decides the defendant should prove that they were not negligent. The legal term for this
is res ipsa loquitur (meaning the facts speak for themselves). It applies in circumstances
where the cause of the injury was under the control of the defendant and that the incident
would not have occurred if they had taken proper care. It is often applied in medical cases,
for example in Mahon v Osborne (1939), a surgeon had to prove it was not negligent to leave
a swab inside a patient.12

ELEMENT 3 LOSS OR DAMAGE AS A RESULT OF THE BREACH


In this element the claimant simply has to prove that the loss or damage was a direct
consequence of the defendants breach of duty of care. In other words that there is a chain of
causality from the defendants actions to the claimants loss or damage. A simple test, called
the but for test is applied. All the claimant has to prove is that if it were not but for the
actions of the defendant then they would not have suffered the loss or damage.
Where there is more than one possible cause of the loss or damage, the defendant will only be
liable

if

it

can

be

proved

that

their

actions

are

the

most

likely

cause.

A good case which illustrates how the but for test operates is Barnett v Chelsea and
Kensington HMC (1969) another medical case. A casualty department doctor negligently
sent a patient home the patient died. However, the doctor was not found liable for damages
because the patient was suffering from arsenic poisoning and would have died no matter what
the negligent doctor could have done. The loss itself must not be too remote. It is an
important principle that people should only be liable for losses which they should have
reasonably foreseen as a potential outcome of their actions. The Wagon Mound (1961) is a
case often cited in explanation of this principle. Oil leaked out of the defendants boat within
Sydney harbour and came into contact with some cotton waste which had fallen into the
12 R.K. Bangia, Law of Torts , 19th Edition, 2008, Publisher: Allahabad Law
16

water. The oil was of a particular type which would not foreseeably catch fire on water.
However, the cotton ignited and this in turn set the oil ablaze causing damage to the
claimants wharf. The defendants were not found liable for fire damage as the actual cause of
the fire was held too remote.

Novus actus intervieniens


Other events, which are outside the control of the defendant, may intervene in the chain of
causality adding some confusion to the outcome of a case. The good news is that there are
some simple rules to remember that deal with them. At all times you should bear in mind that
the defendant will only be liable if their actions are the most probable cause of the loss or
damage. They will not be liable if an intervening act becomes the real cause. Examples of
intervening acts which remove liability from the defendant include:13

Actions of the claimant which are unreasonable, or outside what the defendant could
have foreseen in the circumstances.

Actions of a third party which become the real cause of the loss or damage. The
defendant is only liable for damages up until the point when the third party
intervened.

Unforeseeable natural events natural events which the defendant could have
reasonably foreseen do not affect things.

Lets return to Harry and Alex. It is entirely possible for the accident to be caused by a
third party driving into Alex, forcing him into Harry. It is also possible that Harry
himself was an intervening factor maybe he was driving erratically. Either of these
factors could mean that Alexs breach of duty is not the real cause of Harrys injuries.
For now, lets assume that no third party is involved and that any actions Harry took

13 http://www.legalservicesindia.com/article/article/negligence-as-a-tort-meaning-essentials-anddefences-1297-1.html
17

are not enough to take the blame for the cause of the accident away from Alex. The
court will therefore find Alex liable for negligence to Harry.

DEFENCES
There are two defences a defendant can use where they are found liable for negligence. One
will exonerate them completely; the other reduces the level of damages they are liable for.
Volenti non fit injuria simply means the voluntary acceptance of the risk of injury. If a
defendant can prove the claimant accepted the risk of loss or damage, they will not be
liable. Acceptance can be express (usually by a consent form being signed) or implied
through the claimants conduct.14
Contributory negligence takes part of the blame away from the defendant if it can be
proved the claimant contributed in some way to their loss or damage. The defendant is still
liable, but will face a reduced damages payout.
In Harry and Alexs case, volenti is not an issue in no way did Harry consent to the
accident. However, if his actions contributed in some way to his injuries, maybe by not
wearing a seatbelt, then he may find the amount of damages he receives is reduced.

14 www.searchquotes.com/search/Tort_Law
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CONCLUSION
The present paper makes an attempt to recognize and conclude In order for a defendant to be
found negligent; the plaintiff must prove three factors. First, the plaintiff must prove that the
defendant owed the plaintiff a duty of care. A duty of care is the obligation to avoid careless
actions that could cause harm to one or more persons. Second, the plaintiff must prove that
the defendant failed to provide the proper standard of care that a reasonable person would
have provided in a similar situation. The standard of care is a way of measuring how much
care one persons owes another. For some people the standard of care is higher than others.
Doctors, for example, have a higher standard of care toward others than the reasonable
person. Third, the plaintiff must prove that the actions of the defendant were the cause of the
plaintiffs injuries. Determining the cause, known as cause-in-fact, is often done by applying
the but for test. An injury would not have happened but for the defendants actions. If a
teacher takes a group of students on a canoe trip and fails to provide life jackets and one
student falls in and drowns, a court would likely say that the student would not have downed
but for the teachers failure to provide a life jacket. Therefore, this negligence was the
cause-in-fact of the injury. Children can be held responsible for damage they cause, but the
court recognizes that children may not have the experience and wisdom to foresee how
something they do could cause injury. Therefore the courts place a different standard of care
on a child. If a child does something that injures someone, the courts will consider the childs
age, life experience, and what a child of a similar age would have done under similar
circumstances. Children under the age of six are rarely found liable for their actions. Parents
are not automatically liable for damages caused by their children, but they can be held liable
if they fail to train their children or properly supervise their activities. A child who is injured
because of a parents negligence can sue that parent. Children usually sue because parents
often have liability insurance that would cover some or all of the medical expenses that
would have to be paid due to the childs injuries. See also, Caparo Industries plc v Dickman
[1990] 2 AC 605 where Lord Bridge stated: "What emerges is that, in addition to the
foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care
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are that there should exist between the party owing the duty and the party to whom it is owed
a relationship characterised by the law as one of "proximity" or "neighbourhood" and that the
situation should be one in which the court considers it fair, just and reasonable that the law
should impose a duty of a given scope upon the one party for the benefit of the other. But it is
implicit in the passages referred to that the concepts of proximity and fairness embodied in
these additional ingredients are not susceptible of any such precise definition as would be
necessary to give them utility as practical tests, but amount in effect to little more than
convenient labels to attach to the features of different specific situations which, on a detailed
examination of all the circumstances, the law recognises pragmatically as giving rise to a
duty of care of a given scope. Whilst recognising, of course, the importance of the underlying
general principles common to the whole field of negligence, I think the law has now moved
in the direction of attaching greater significance to the more traditional categorisation of
distinct and recognisable situations as guides to the existence, the scope and the limits of the
varied duties of care which the law imposes." In an article "Viewpoint: Supreme Court
preserves police immunity from negligence liability", the author, by Dr John Fanning - Law
Lecturer University of Liverpool - comments: "Court-watchers may feel that Michaels case
bucks a recent trend. During the last decade, the Court has restricted the scope of the armed
forces combat immunity (Smith v MOD) and abolished the immunity of expert witnesses
(Jones v Kaney) and barristers (Hall v Simons) from negligence claims. The Courts
reasoning in those cases may have raised doubts about the future of similar immunities
enjoyed by the likes of the police and fire brigade. Michaels case dispels any hopes "

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BIBILIOGRAPHY
SECONDARY SOURCES
BOOKS:

1. Dr. S.K. Kapoor, Law of Torts and Consumer Protection Act, 6th Edition 2003; Published
by Central Law Agency, Allahabad.
2. M.N. Shukla, The Law of Torts and Consumer Protection Act, 18th Edition 2010;
Published by Central Law Agency, Allahabad.
3. R.K. Bangia, Law of Torts , 19th Edition, 2008, Publisher: Allahabad Law Agency.
4. Ratanlal and Dhirajlal, The Law of Torts, 24th Edition 1997 Reprint 2002; Published by
Wadhwa and Company, Nagpur, India.
5. B.M. Gandhi, Law of Torts, Third Edition 2006 Reprint 2010; Published by Eastern Book
Company, Lucknow, India.
E- SOURCES:
http://study.com/academy/lesson/negligence-torts-definition-and-cases.html
http://www.accaglobal.com/ca/en/student/exam-support-resources/fundamentals-examsstudy-resources/f4/technical-articles/tort-negligence.html
http://wps.prenhall.com/ca_ph_blair_law_1/2/538/137983.cw/index.html
http://obiterj.blogspot.in/2015/01/the-tort-of-negligence-few-thoughts-on.html

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https://en.wikipedia.org/wiki/Negligence
www.legalservicesindia.com/.../negligence-as-a-tort-meaning-essentials-a...
https://law.wustl.edu/sba/firstyearoutlines/torts/.../TORTS_OUTLINE.pdf

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