NEGLIGENCE

 INTRODUCTION:

Negligence is the improper performance of any action or duty in which ethical

protocols are not performed or acting with carelessness where needed. The concept of
negligence is that people should exercise reasonable care in their actions.

 NEGLIGENCE IN TORT LAW:

Negligence is the breach of duty caused by the omission to do something which is a

reasonable man, guided by those considerations which ordinarily regulate the conduct of
human affairs, would do, or doing something which a prudent and reasonable man would not
do.1

OR

Negligence is an unintentional tort wherein one party is injured as a result of the

actions of another. There are several elements that must be present to prove this tort.2

OR

A breach of duty or a failure of one party to exercise the standard of care required by
law, resulting in damage to the party to whom the duty was owed.3

 ELEMENTS OF NEGLIGENCE:
Negligence consists of following three elements:

o Duty to take care.

o Breach of duty
o Causation
o Actual damage/ Harm

1 Ratanlal Ranchhoddas (2017) “Law of Torts” Chapter 20

2 Negligence Torts: Definition and Cases : https://study.com/academy/lesson/negligence-torts-definition-and-cases.html
3 Tort of Negligence: https://www.colorado.edu/engineering/civil/db/DBS/glossary.cgi?word=Tort+of+Negligence

Page | 1
 o Duty to Take Care:
Negligence does not occur where duty to take care does not exist. There must be
some ethical rules or responsibilities of performing with care of which the individual is
bound by law.
Example: Doctors and other medical care providers have a duty to treat their
patients in a medically appropriate manner. In some situations, they must warn their
patients of the risks involved with a given course of treatment.4

o Breach of Duty:
Negligence does not occur unless the individual has performed any breach of duty
that is he/she was bound to perform his duty under some rules of conduct or with special
care bound by law.
Example: A surgeon removes the wrong kidney from a patient, leaving the patient
with no functioning kidneys.

o Causation:
The third element of negligence is causation. The breach of the duty of care must be
the legal cause of the harms suffered by the injured person. There are two distinct but
closely related components of legal causation: actual cause and proximate cause.

o Actual Damage/Harm:
If negligence is conducted and in result of which damages occurred to any individual
that is there must be some harm occurred to the plaintiff because of negligence. It should
be compensated by whom the negligence is conducted.

 EXPLANATION:

Negligence is an act of performing in an improper manner, or it is an act of

performing carelessness. Negligence is conducted where there is specific way of perform
prescribed by law and the individual is bound to follow that set of rules and principles for the
performance of certain act and if fail to perform in the boundaries of law then he/she is
convicted for the act of negligence and treated under the Law of Torts.

4 The Elements of Negligence: https://www.mccormickmurphy.com/diy/liability/negligence/

Page | 2
 Negligence happens where the standards of care and performance are described by
law or any statute. If there is no guidance for special care and specific way of performance
with due care than it cannot be treated under an act of negligence.

If any individual found guilty of conducting negligence so he can be sued for the
damages occurred of which he has to compensate.

 EXAMPLES:

o A lawyer who doesn't really know how to prosecute a case but who takes the case
anyway and doesn't adequately represent the client can be considered to be liable for
professional negligence.
o A doctor who operates on the wrong patient or on the wrong body part because he or
she misreads the chart could be considered negligent. 5

 TYPES OF NEGLIGENCE:

Following are the types of negligence observed under law of torts:

o Contributory Negligence
o Comparative Negligence
o Gross Negligence
o Vicarious Negligence

 Contributory Negligence:

In contributory negligence cases, if the plaintiff caused his own injury in any manner,
he cannot collect damages at all. This is one of the common types of negligence observed by
courts.

For Example: A is intoxicated and not in a state of mind that he could control
himself and due to this he fall in front of any car running toward him, here A is responsible
for his injuries.

5 Examples of Negligence: http://examples.yourdictionary.com/examples-of-negligence.html

Page | 3
 Comparative Negligence:

This is where the plaintiff is marginally responsible for the injuries to himself. The
plaintiff may be required to pay a percentage of the damages in a comparative negligence
case.

For Example: A does not takes safety precautions as prescribed by law but got
injured due to the negligence of B and partly due to his own negligence, here he had to
pay some part of the damages and injuries occurred.

 Gross Negligence:

Gross negligence is a much more serious form of negligence that goes a step further
than simple careless action. In these cases the negligence was so careless it showed a
complete lack of concern for the safety of others.

For Example: Hospital staff does not change a surgery patient’s bandages for several
days, resulting in a serious infection.

 Vicarious Negligence:

This form of negligence is where the defendant is held responsible of the actions of
another person. This form of liability is often used in cases where young children or minors
caused serious injury,

For Example: The parent of the child and will be held responsible for the damages
because the child cannot be responsible for it themselves.6

6 Types of Negligence: https://gallagher-law-firm.com/types-of-negligence/

Page | 4
 CHILDREN AND NEGLIGENCE:

A child is generally responsible (liable) for the consequences of his or her wrongful
acts. However, the degree of reasonable care required of a child depends on the age of the
child and the standard of care normally expected of a child of that age.
To some extent the rules applying to children are different from those for adults who
commit wrongful acts, especially where a person's state of mind is an essential consideration.
A young child may be aware of what he or she is doing, and even know that the action is
wrong, but still be incapable of foreseeing its consequences and will therefore not have acted
negligently.7
The capacity of a child must be considered and decided in each case. Obviously, the
closer a child is to adulthood, the more the standard of care will resemble that required of an
adult. A child who engages in an adult activity such as driving a car or handling a gun may be
expected to meet the standard of care applicable to an adult.8
If the children are trespassers the only duty of the landowner is not to injure them
intentionally or to put dangerous traps for them intending to injure them. If in case of
trespassing they injured themselves then no liability lies on the land owner of that injury. 9

o Parental Liability in children negligence:

Normally parents are not liable for wrongs committed by their children. However, they
may be liable for a wrong committed if:

 the child was acting as their agent;

 the child was acting with the parent's authority; or
 Where it is found that a parent has not exercised proper control or supervision over
the child.10

7
Children and Negligence: https://www.lawhandbook.sa.gov.au/ch01s05s01.php
8
Melinda H. South (2015) “Children and Negligence - Contributory Negligence”, Richmond Personal Injury Attorney
9
Ratanlal Ranchhoddas (2017) “Law of Torts” Chapter 20
10
Children and Negligence: https://www.lawhandbook.sa.gov.au/ch01s05s01.php

Page | 5
 NEGLIGENCE AND BREACH OF STATUTORY DUTY:

Breach of statutory duty occurs where the things authorized to be done by a statute are
carelessly or negligently done, an action is maintainable. Such a breach is known as
“Statutory Negligence”. Neglect is an omission to perform, a statutory duty, as distinguished
from negligence in the performance of it does not give rise to a right of action in favor of a
person suffering from damage by reason of such omission unless such a right is expressly or
impliedly given by statute. An action in respect of injuries caused by breach of statutory duty
does not differ from an action in respect of injuries caused by any other wrong.11

The three conditions in which a liability may be established founded upon a statute:

 When the liability depends on the common law and is affirmed by the statute who is
giving different form of remedy from the solutions given in the common law and the
party suing can pursue either the common law remedy or the statute one.
 The party can proceed by action on common law only when the statute gave the right
to sue with no other form of solution.
 If the liability does not exist at common law but contains a necessary and a unique
form of remedy than it must be followed.

 DAMAGES:

Damages are awarded to place the plaintiff in the same position as that in which he
would have been but for the injury or wrong sustained, the amount of damages will depend
upon the character of the negligence as for instance, if it would be of reckless character.12

Following points are covered to compensate the person injured:

 The loss of time, expenses, injured pain and sufferings,

 Permanent injury causing pecuniary loss as to which amount must be some
reasonable sum of loss.
 Damages for the loss of his expectations of life.

11
Ratanlal Ranchhoddas (2017) “Law of Torts” Chapter 20
12
Ratanlal Ranchhoddas (2017) “Law of Torts” Chapter 20

Page | 6
 The right for the recovery of the damages passes to the personal representatives of the
person in case of his death.

 TYPES OF DAMAGES:

There are three types of damages which are rewarded in the cases of negligence which
are as follows:

 Special Damages (Pecuniary Damages)

 General Damages (Non- pecuniary Damages)
 Punitive Damages

o Special Damages (Pecuniary Damages):

Damages that can be exactly measured in money. Damages intended to compensate

a plaintiff for a quantifiable monetary loss. Special damages mean the particular damage
(beyond the general damage) that result from the particular circumstances of the case. These
damages refer to actual monetary losses. It also known as economical damage.

o General Damages (Non- pecuniary Damages):

Damages for non-monetary losses suffered by a plaintiff. These damages are called
“general” because they cannot be assessed exactly. These damages are more difficult to
calculate because they are typically subjective. In a personal injury action, for instance,
examples of such losses suffered include pain, suffering, disfigurement, loss of enjoyment of
life.13

o Punitive Damages:

Punitive damages are ordered as a means of punishing a negligent party. They are
reserved for cases where the at-fault party knowingly put people in danger and at risk of
getting hurt. In asbestos claims, these damages might be ordered if the liable party knew they
were exposing people to asbestos but did nothing to warn or protect them.14

13
Types of Damages in Civil Litigation: http://www.hosseinilaw.com/types-of-damages-in-civil-litigation/
14
Types of Damages in Negligence Claim: https://www.siebenpolklaw.com/blog/2017/01/3-types-of-damages-that-can-be-awarded-in-a-
negligence-claim.shtml

Page | 7
 BURDEN OF PROOF IN ACTIONS OF NEGLIGENCE:

The onus of proving negligence lies upon the plaintiff. He must show that he was
injured by an act or omission for which the defendant in law responsible. There must be proof
of some duty owed by the defendant to the plaintiff, some breach of that duty and an injury to
the plaintiff. Further it must be shown that the negligence is the proximate cause of the
damage.15

o Composite Negligence:

In composite negligence injury is caused by the wrongful act of two parties , the
plaintiff is not bound to a strict analysis of the proximate cause of the event to find out whom
he can sue. The plaintiff is entitled to sue every negligent person and can recover full amount
of damage from any of the defendants.

o Res Ipsa Loquitor:

A plaintiff in some instances may rely on the doctrine of res ipsa loquitur, which is
Latin for "the thing speaks for itself." This type of theory allows a jury in a negligence case to
infer that a defendant acted negligently, even without other proof of misconduct. In order for
this doctrine to apply, the plaintiff must prove that the event that occurred usually does not
happen in the absence of negligence and that the defendant had exclusive control of the
instrument that caused injury.

o Example:

A child who was injured by the bag of grain on a public sidewalk in front of a grain
producer may not have any direct or circumstantial proof that the producer was negligent in
handling the bag. However, a bag of grain typically does not fly onto a public sidewalk in the
absence of negligence, and the producer presumably had exclusive control over the bag at the
time of the accident. In this instance, the jury may be able to infer negligence on the part of
the defendant under res ipsa loquitur.16

15
Ratanlal Ranchhoddas (2017) “Law of Torts” Chapter 20
16
Proof in a Negligence Case: https://injury.findlaw.com/accident-injury-law/proof-in-a-negligence-case.html

Page | 8
PERSONS PROFESSING TO HAVE GREATER SKILL:

When a person has some greater skills they are bound to exercise skills as it gets
obvious. The practice of a profession demands some special skill, ability and experience.
They are bound to perform or conduct themselves in a skillful manner.

Following are some position on which persons are bound to perform in skillful
manner:

 Director of companies
 Carriers
 Inn-keepers
 Physician and surgeons
 Solicitors
 Counsel
 Bankers
 Manufacturers

o Director of companies:

Director of companies are bound with some basic duties which includes the act of
performing within powers and promote the success of the company. He should also work
with reasonable care, skill and avoid conflicts of interest. These are some professional
liabilities and duties of any director of company and breach of these duties can lead to
negligence.

o Carriers:

There are two types of carries worldwide:

 Carriers of goods
 Carriers of passengers

Carriers of goods are the one who undertakes to carry the good of all persons
indifferently by means carrier of land, water or air. A common carrier is bound to carry all
goods offered for transportation by any person. He must take the utmost care of goods from

Page | 9
 the moment of receiving them. A common carrier is liable and responsible for the safe
transport of goods.

Carriers of passengers are responsible for carrying passengers with due care
(including in that the term use if skill and foresight) to carry passenger safely. Carrier of
passengers is carried out through land, water and air. Passenger carriers undertake to provide
of safe conveyance however they are not responsible for accidents.

o Innkeepers:

An inn is defined as a place where lodgings are made available to the public for a
charge, such as a hotel, motel, hostel, or guest house. An innkeeper must accept all
unobjectionable individuals offering themselves as guests, provided the innkeeper has
available accommodations and the guests are willing to pay the reasonable charges.

An innkeeper has an obligation to reasonably protect guests from injury while at the i
nn. This duty of reasonable caremandates vigilance in protection of the guests from foreseeab
le risks.Reasonable care must be exercised by an innkeeper in the operation and maintenance.
Failure to have protective windowgrills or to guard air shafts located on a roof does not, howe
ver, necessarily constitute Negligence.17

o Physician and surgeons:

A physician and surgeon undertakes to bring a fair, reasonable, and competent

degree of skill and in an action against him by a patient, the question is whether the injury
complained of must be referred to the want of proper degree of skill and care to patient.

A doctor when consulted by a patient owes him certain duties that is a duty of care in
deciding whether to undertake the case, a duty of care in deciding whether the treatment to
give or a duty of care in administration of the treatment. Breach of any of these duties
constitutes a medical negligence which can be actionable by the patient.18

17
Innkeeper: https://legal-dictionary.thefreedictionary.com/Innkeeper
18
Ratanlal Ranchhoddas (2017) “Law of Torts” Chapter 20

Page | 10
 o Solicitors:

Solicitors are persons of skills and knowledge, and like physicians undertake
matters of the very highest difficulty and importance. A solicitor is liable for the
consequences of ignorance or non observance of the rules of practice of the court. A solicitor
is liable if his client proves negligence operating to produce the loss of the cause.

Where a solicitor is guilty of negligence or misconduct, the court may order him to
make good of any loss occasioned by such negligence or misconduct.19

o Councel:

The immunity of counsel from being sued for professional negligence in the conduct
of cause, criminal or civil is based on public police not on his contractual incapacity to sue
for fees and it is in the public interest that the immunity should be retained.

o Bankers:

One who conducts the business of banking, one who individually, or as a member of
a company, keeps an establishment for the deposit or loan of money, or for traffic in money,
bills of exchange, etc.

Bankers are liable for negligence in paying forced cheques. They are bound to
exhibit skills in detecting such forgeries.

o Manufacturers:

A manufacturer of an article of food, medicine or the like sold by him to a distributor

in circumstances which prevent the distributor or the ultimate purchaser or consumer from
discovering by inspection any defect is under a legal duty to the ultimate purchaser or
consumer to take reasonable care that the article is free from detect likely to cause injury to
health.20

19
Ratanlal Ranchhoddas (2017) “Law of Torts” Chapter 20
20
Ratanlal Ranchhoddas (2017) “Law of Torts” Chapter 20

Page | 11
CONCLUSION:

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. The negligent action found in this particular tort leads to a personal injury or monetary
damages. he elements which constitute a negligent tort are the following: a person must owe
a duty or service to the victim in question; the individual who owes the duty must violate the
promise or obligation; an injury then must arise because of that specific violation; and the
injury causes must have been reasonably foreseeable as a result of the person's negligent
actions.

Page | 12