NEGLIGENCE

F.Y LL.B, DIV:B

SUYASH MORE (24)

SAMAR PAL (26)

BHUPENDRA PANDEY (28)

PRACHI PARMAR (31)

PRIYANKA PATHAK (34)

ACKNOWLEDGEMENT
 INTRODUCTION

Negligence is derived from the Latin word negligentia, which means ‘failing to
pick up’. A person is negligent when the person fails to take care in a situation
where he/she ought to. In legal terms, ‘Negligence’ is defined as an act of
carelessness which damages the property of a person. The negligence is caused
when a person has acted illegally or carelessly.

Negligence as per Winfield is defined as, “Negligence as a tort is the breach of

legal duty to care by, which results in damage, undesired by the defendant to the
plaintiff.” In other words, it is a breach of duty caused by the omission to do
something which a reasonable man with ordinary prudence will have taken care of,
and the resultant damage.

A person failing to act as expected by him or her either carelessly or intentionally

constitutes the act of negligence. Whereas according to the apex court in Jacob
Mathew v. State of Punjab [2005 (6) SCC 1],

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

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

Negligence can be of both civil and criminal wrong. To be a criminal wrong mens
rea must exist. The breach of duty should cause death (not amounting to culpable
homicide) to amount to criminal negligence. Also, the proof should be beyond
reasonable doubt. From beyond a reasonable doubt the next question that comes to
our mind is that who has to prove it i.e who has the burden of proof. The burden of
proof is on the plaintiff. In other words, the plaintiff has to prove that the defendant
has caused the negligence. To prove the act as negligent the evidence provided by
the plaintiff against the tort-feasor(s) should be of cogent and not vague.
 ESSENTIAL ELEMENTS OF NEGLIGENCE

1. Duty to take care. [Neighbor’s Rule]

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.

2. Breach of Duty. [Absence of due 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 death of a number of
persons. The structure was 80 years old whereas its normal life was 40-45 years. The
Municipal Corporation of Delhi having the control of the structure failed to take care and
was therefore liable.

3. Damage suffered by plaintiff. [Actual Damage]

The last essential requisite for the tort of Negligence is that the damage caused to the
plaintiff was the result of the breach of duty. The harm may follow 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.

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.
 DEFENSES TO NEGLIGENCE CLAIMS

1. Contributory negligence

It is 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 by law to be the author of his wrong.

2. Act of God (Vis major)

If there is injury or death of a person caused due to any natural disaster, then the person
will not be liable if he or she proofs the same in the court. This particular defense was
talked in Nichols v. Marsland [ (1875) LR 10 Ex. 255]: where the defendant had series
of artificial lakes on his land in the construction or maintenance of which there had been
no negligence. Due to the heavy rain, some of the reservoirs burst and carried away four
country bridges. The court held that the defendant was not liable as the water escaped by
the act of God.

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 plaintiff’s and defendant’s dogs were
fighting, while the defendant was trying to separate them, he accidentally hit the plaintiff
in the eye who was standing nearby. The injury to the plaintiff was held to be result of
inevitable accident and the defendant was not liable.

4. Comparative negligence

Comparative Negligence is a principle of tort law that applies to casualty insurance in

certain states. Comparative negligence states that when an accident occurs, the fault and
or negligence of each party involved is based upon their respective contributions to the
accident. This allows insurers to assign blame and pay claims accordingly.
5. Plaintiff’s own fault ( Assumption of risk)
The doctrine of assumption of risk is an affirmative defense that may be available to
some defendants in personal inkury lawsuits. The law has determined that certain
activities come with an innate risk, and plaintiff’s who voluntarily participate in these
activities and become injured as a result cannot sue based on a negligence theory. In other
words, the defense holds that people who choose to do certain dangerous activities can’t
turn around and hold others liable when they’re injured as a result of those activities.
 TYPES OF NEGLIGENCE

1. Contributory Negligence
‘Contributory negligence’ is an expression which implies that person who has suffered
damage, is also guilty of some negligence and has contributed towards the damage.

Contributory negligence has been defined as “negligence in not avoiding the consequence
arising from the negligence of some other person, when means and opportunity are
afforded to do so.”

The law of contributory negligence was summarized by the House of Lords in Swadling
v. Cooper, [(1931) AC1].

2. Composite Negligence

It is settled law that in a case of composite Negligence, where injuries have been caused
to the claimant by the combined wrongful act of joint tortfeasors, the liability is always
joint several.
In Khenyei v. New India Assurance Company Ltd., [Civil Appeal No. 4244 of 2015]
it has been considered that “the claimant has the right to recover the entire amount of
(potential) compensation from the easiest targets/ solvent defendant.” It is not
appropriate for the court to determine the extent of the Composite Negligence of those
joint tortfeasors who have not been impleaded by the claimant. The impleaded joint
tortfeasor in fact should be left, in case he so desires, to sue the other joint tortfeasor in an
independent proceeding after passing of the decree or award.

3. Comparative Negligence

The first type of comparative negligence is “pure comparative negligence”. The doctrine,
allows a plaintiff to recover damages from the defendant minus his or her percentage of
responsibility.
The second type of comparative negligence is “modified comparative negligence” This
doctrine states that a plaintiff will not recover if the jury determines he or she I equally
responsible (50%) or more for an accident.
The third type of comparative negligence is “slight/gross negligence rule”. In this system,
the plaintiff’s and defendant’s respective degrees of fault are only compared when the
plaintiff’s negligence is considered “gross”. The plaintiff is barred from recovery if his or
her fault is more than “slight”.
4. Gross Negligence

Gross Negligence is an “amplification” of this behavior and it goes beyond carelressness

to include reckless, reasonable or willful misconduct by a person. It is behavior that
shocks this conscience.
In other words, gross negligence is a total disregard for the obligation to exercise due care
and that leads to personal injury or property damage. Proving gross negligence may
ratchet up the damages to be paid and may even include punitive damages.

5. Vicarious Negligence

Generally, a person is liable for his own wrongful acts and one does not incur any
liability for the acts done by others. In certain cases, however, vicarious liability, that is
the liability of one person for the act of another person, may arise.
In order that the liability of A for the act done by B can arise, it is necessary that there
should be certain kind of relationship between A and B, and the wrongful act should be,
in certain way, connected with that relationship.

The common examples of such a liability are:

(1) Liability of the principal for the tort of his agent;

(2) Liablility of partners of each other’s tort;
(3) Liability of the master for the tort of his servant.
 CONCLUSION

Negligence, as is true with all legal claims, is comprised of various “elements”,

identifiable components which draw together a cluster of related issues for analysis
and resolution. Too often, the elements of negligence are merely recited and not
explained. In formulating the elements here, this idea can just scratch the surface of
each one, filling each with only elemental content. But the idea of this is quite
modest to identify and explain, compactly and conjointly, the five elements of
negligence, the most important tort.

Negligence is logically divisible into five elements- duty, breach, cause in fact,
proximate cause, and harm which usefully may be assembled and explained.

Thus, the researcher would like to conclude that essentials of Negligence are of
grave importance to commit the same. The tort cannot be caused even when, only
one essential is missing. All the three conditions must be fulfilled and that to in the
same order to commit the tort of negligence. Also, the rudiments of each essential
that are namely, existence of duty of care, breach of duty of care and resultant
damage, are of vital importance. They check whether the conditions of these
essentials are fulfilled or not. Also the researcher came to know that there are no
essentials that are there to commit the tort of negligence, be it mandatory or not.
 REFERENCES

Essential elements of negligence (legalserviceindia.com)

Defenses to negligence claims (legalbites.in)

Types of negligence

Comparative negligence (casemine.com)

Gross Negligence (legalmatch.com)

Vicarious liability negligence (legalservicesindia.com)