NEGLIGENCE

INTRODUCTION

It is already known that the Indian law of torts is based on the English common law.
Thus, the law relating to negligence is adopted and modified by the courts of India on
the principles of justice, equity and good conscience. The term Negligence is derived
from the Latin word negligentia, which means ‘failing to pick up’. 

In day to day life, the word ‘negligence’ means nothing else but carelessness. Under
the legal sense, it highlights the failure to perform the basic of care which the
performer as a reasonable man should perform have in all the situations. In general,
there is a legal duty to consider when it can be foreseen that failure to do so can cause
harm. Negligence is a mode in which many types of injuries may occur by not
considering such suitable precautions

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.

DEFINITION OF NEGLICEGENCE

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.”

Lord Wright states that “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
owed.”

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In Blyth v. Birmingham Water Works Co., Alderson 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”.

ESSENTIALS OF NEGLIGENCE TORT

1. A LEGAL DUTE TO TAKE CARE

There is an important condition under the liability for negligence that the defendant
owes a legal duty towards the plaintiff.

It is one of the essential conditions of negligence in order to make the person liable. It
means that every person owes, a duty of care, to another person while performing an
act. Although this duty exists in all acts, but in negligence, the duty is legal in nature
and cannot be illegal or unlawful and also cannot be of moral, ethical or religious
nature.

CASE LAW: DONOGHUE V. STEVENSON

The case of Donoghue v. Stevenson, adds further to this idea and expands the scope
of duty by stating that the duty so raises extends to our neighbor. While explaining
who is my neighbor Lord Atkin states 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”.

In the case, ‘A’ purchased a bottle of ginger beer from a retailer for the appellant, a
lady friend- after ½ consumption she found a decomposed body of a snail in her glass.
She seriously suffered in her health. The bottle was dark opaque glass and closed with
a metal cap so its content was not visible. She brought an action against the
manufacturer for damages. The defendant pleaded that He did not owe any duty of
care towards the plaintiff. He also pleaded that the plaintiff was a stranger to the

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contract and her action was, therefore, not maintainable (Privity of contract). But all
these defenses were denied and defendant was held liable for negligence.

2. DUTY OF CARE MUST BE OWED TO THE PLAINTIFF

It is not ample that the defendant owes a duty to take care of. A duty should be there,
according to which, the defendant should owe a duty of care towards the plaintiff. The
defendant must owe duty of care to the plaintiff. If the defendant does not owe duty of
care to the plaintiff, the plaintiff cannot take any action against the defendant.

3. BREACH OF DUTY

One very important condition for the liability in negligence is that the plaintiff must
prove that due to the negligence the defendant had not been able to perform his duties.
It must be proved by the plaintiff that the defendant had committed a breach of duty.

CASE LAW: MUNICIPAL CORPORATION OF DELHI vs

SHUBHAGWANTI

In the above case, a number of persons died due the collapsing of a clock-tower in the
heart of the Chandni Chowk, Delhi.

The normal life of such structures are normally 40-45 years but the tower was around
80 years old. The Municipal Corporation of Delhi is held liable as it is under their
hands and they are not able to take care and perform their duties efficiently.

4. DAMAGE TO THE PLAINTIFF

It is also necessary that the defendant’s breach of duty must cause damage to the
plaintiff. Onus is on the plaintiff to prove damage and it should not be too remote.
Proving that the defendant failed to exercise reasonable care is not enough. It should
also be proved that the failure of the defendant to exercise reasonable care resulted in
damages to the plaintiff to whom the defendant owed a duty of care.
There must be link between wrongdoing ad the damage caused.

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The harm may fall into the following classes:-

 Bodily harm
 Harm to the reputation
 Harm to property
 Financial Loss
 Mental Harm

When such damage is proved, the defendant is bound to compensate the plaintiff for
the damages occurred.

DOCTRINE OF RES IPSA LOQUITUR

In the common law of torts, res ipsa loquitur (Latin for "the thing speaks for itself") is
a doctrine that infers negligence from the very nature of an accident or injury in the
absence of direct evidence on how any defendant behaved.

It is a doctrine or rule of evidence in tort law that permits an inference or

presumption that a defendant was negligent in an accident injuring the plaintiff on
the basis of circumstantial evidence if the accident was of a kind that does not
ordinarily occur in the absence of negligence.

Thus the following are the three essential requirements for the application of this
maxim-

1)The thing causing the damage must be under the control of the defendant or his
servants
2)The accident must be such as would not have happened in the ordinary course of
things without negligence.
3)There must be no evidence of the actual cause of the accident

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CASE LAW: BYRNE vs BOADLE

This doctrine arose out of the case of  Byrne vs Boadle. The plaintiff was walking by
a warehouse on the road and suffered injuries from a falling barrel of flour which
rolled out of a window from the second floor. At the trial, the plaintiff’s attorney
argued that the facts spoke for themselves and demonstrated the warehouse’s
negligence since no other explanation could account for the cause of the plaintiff’s
injuries.

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 STRICT LIABILITY

MEANING

Strict liability is a legal doctrine that holds a party responsible for their actions or
products, without the plaintiff having to prove negligence or fault. When someone
partakes in ultrahazardous activities such as keeping wild animals, using explosives,
or making defective products, then they may be held liable if someone else is injured.

Even if the defendant took necessary precautions and followed safety requirements,
strict liability crimes are unique in that they would still hold the defendant
responsible. Due to the nature of the activity, the defendant should be able to foresee
that a person could be harmed by it.

Strict liability differs from ordinary negligence because strict liability establishes
liability without fault. In other words, when a defendant is held strictly liable for harm
caused to the plaintiff, he is held liable simply because the injury happened. The fact
that the harm the plaintiff suffered is not the defendant’s fault makes no difference.

Generally in legal action the plaintiff has to prove that the defendant is liable either by
negligence or fault. However, in Strict Liability the plaintiff only needs to prove that
the tort occurred and the defendant was responsible. Strict Liability is a kind of Tort
that makes a person or entity responsible for their acts even when the consequences
were unintentional. Law also imposes liability only on those actions which it feels are
naturally dangerous. Strict Liability is also known as ‘no fault liability’. It is due to
the immateriality of intention and negligence.

Strict liability was initially introduced in the case of Rylands v. Fletcher  in 1868. The
case was treated as an aspect of nuisance or a special rule of strict liability. The
defendant, in order to improve his water supply, constructed a reservoir by employing
reputed engineers. There was negligence on the part of contractors that they didn’t
seal the mine shafts which they came across while constructing the reservoir due to
which water flooded into plaintiff’s coal mine resulting into damage to the mines of
the plaintiff.

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ESSENTIAL ELEMENTS OF STRICT LIABILITY

There are there essential elements under strict liability:

1. DANGEROUS SUBSTANCE

For the applicability of Strict Liability it is essential that the substance that escapes
must be dangerous in nature. The substance must be harmful to cause damage to
other’s land on escaping, whether or not this involves personal danger is quite
irrelevant, nor its extra hazardous quality of the thing in the sense that it might be
likely to harm persons who are on the premises where it is kept. Things which have
been held to be within the rule include electricity, gas, things likely to pollute water
supplies, explosives, fire and things likely to cause fire and so on.

2. ESCAPE

Escape means an escape from a place which is in the occupation and control of the
defendant. It is essential for the strict liability that the material escapes the premises
and also out of the reach of the defendant.

3.NON- NATURAL USE OF LAND

The defendant is only answerable if, bringing the thing; he is making a non- natural
use of his land. The word ‘non- natural’ must be focused upon. There was a special
use of land which caused or increased the danger for people. In the case Richards v.
Lothian. It was said “it must be special use bringing with it increased danger to others
and must not merely be the ordinary use of land.”

Also this rule applies only when the defendant brings or accumulates on his land for
his own purpose something which is likely to escape and to do mischief. He will not
be liable for the escape of things which are naturally present on the land.

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TYPES OF STRICT LIABILITY

1. Animals

2. Abnormally dangerous activities

3. Product liability

ANIMALS

The injuries caused to the plaintiff by animals owned by the defendant are also
recognised by law as a subject matter for strict liability. These are divided into three
main categories

LIVESTOCK

These are the animals which are kept by people most likely as assets and not pets.
These animals may include horses, cows, buffalos, goats, sheep etc. The instances
where these animals break away from there barns and cause rampage or any kind of
damage to the neighbouring people then it will be cause strict liability to its owner.

DANGEROUS ANIMALS

This category contains pet animals or others that have dangerous tendencies and also
the owner has the knowledge about it. Such as if a cat or a fierce breed dog that are
not friendly and attack the people around them. This category does not contain any
specific breed of animal. Any animal which has a dangerous temperament can be
considered as dangerous animal.

WILD ANIMALS

Generally the harm done by wild animals in possession of some people is considered
as absolute liability on the owner. But it can also be covered under Strict Liability. It
does not matter how much due care and diligence have been applied by the owner of
that wild animal, if it causes harm to any other person or property the owner will be
faced with strict liability.

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ABNORMALLY DANGEROUS ACTIVITIES

A person who carries on abnormally dangerous activity is subjected to liability for

any person around even though they exercised due care while performing such
activity. It is considered while adjudicating that whether these activities actually pose
any dangerous risk to people, and whether or not such activities could be performed
without the risk f causing harm to people even with due care. Such activities include
storing of explosives, harmful gases, demolition activities, disposing of hazardous
waste etc.

PRODUCT LIABILITY

Here, for the liability to arise, the plaintiff has to prove that the product involved in
causing the harm had a certain defect while it left the possession of the defendant. The
defect can be ‘manufacturing defect’, ‘defect in its design’ or ‘defective because of
lack of adequate instructions’.

EXCEPTIONS TO THE RULE OF STRICT LIABILITY

The rule of strict liability since it is not absolute, hence, the defendant has some
defences available to him to get exemption from the liability.

The rule of strict liability does not apply in the following circumstances:

 Natural use of a thing

 Act of God
 Act of stranger
 Common Benefit
 Consent of Plaintiff
 Mistake of plaintiff
 Statutory authority

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NATURAL USE OF A THING

The rule of Ryland v. Fletcher does not apply in the cases where the things
are present on a person’s land in the natural form or arises on the land, even
though they are dangerous. This rule applies to the things artificially brought
to the land. Even in case of the things brought artificially, the question arises
whether the defendant is liable to his neighbours if he had kept those things
for naturals use?

CASE LAW: HELLO V. LANKASHIRE AND YORKSHIRE RLY CO

In Hello v. Lankashire and Yorkshire Rly Co.  It was held that the owner of a
land is not liable for things which arise naturally.

ACT OF GOD

It is a mere short way of expressing the scenario that the defendant is not liable for
any accident as to which he can show that it is due to the natural causes directly and
exclusively without human intervention and that it could not have been prevented by
any amount of foresight plans and care reasonably to be expected from him. This term
signifies such as, operations of natural forces as extra- ordinary rainfall and flood or
earthquake. The defendant can put forth the excuse that the escape of the thing was
due to the act of God.

ACT OF STRANGER

The defendant is not held liable for the escape of a thing if the escape is caused by a
third person without the knowledge or authority of the defendant provided he
(defendant) is not negligent and has not committed a breach of duty to take the
necessary precaution against the interference of strangers.

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CASE LAW: BOX V. JUBB

In Box v. Jubb, the defendant was not held liable due to the act of third person who
without the defendant’s authority or knowledge emptied the water of his own
reservoir into the defendant’s.

COMMON BENEFIT

If the dangerous thing that is most likely to cause harm is bought to the land for the
common benefit of both, the defendant and the plaintiff, that only the defendant
cannot be made liable for the harm it caused by the escape, provided that there was no
negligence on the part of the defendant.

CONSENT OF THE PLAINTIFF

Where the things that escapes were brought or kept upon defendant’s land with the
consent of the plaintiff, in such case this rule does not apply. It cannot be used as a
defence when the plaintiff’s were the one allowing the presence of the dangerous
substance.

MISTAKE OF PLAINTIFF

This defense was recognised long ago in the case of cattle-trespass where it was due
to the plaintiff’s breach of duty to fence his land. Similarly, a person cannot complain
of injury due to his meddling with a dangerous thing, or his trespassing in another’s
premises or to some neglect on his part.

STATUTORY AUTHORITY

Statutory authority means powers or authority given by the law or legislature to do an

act. If the defendant commits a tort in discharge of a duty under statutory authority, he
is not subject to liability in tort.

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CASE LAW - IN MADRAS RLY CO. V. THE ZAMINDAR OF
KARVETNAGAR THE PRIVY COUNCIL

In Madras Rly Co. v. The Zamindar of Karvetnagar the Privy Council held that a tank
maintained by a zamindar under statutory authority breached by excessive rainfall.
The defendant must take out that the particular act causing damage was authorised by
statute expressly or by necessary implication.

ILLUSTRATIONS FOR STRICT LIABILITY

1. Where ‘A’ has a wild animal in his possession, that animal escapes and injured the
neighbours of ‘A’. Here A is strictly liable for the harm caused by the dangerous
animal.

2. In a case where an E possess harmful substance and has employed certain workers
to work in his facility. He has applied due diligence that his workers do not get
injured by such substance. If an injury is caused to W due to an escape of the
dangerous substance, caused by his own negligent actions, here E, i.e., the actual
possessor of the harmful substance will not be made liable for the escape of such
substance.

3. ‘A’ bought a product due to which harm is caused to the surroundings. It was
concluded that the product was defected before it came into ‘A’s possession, here
either the manufacturer or the seller will undergo the penalty of strict liability.

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 ABSOLUTE LIABILITY

DEFINITION
If an industry or enterprise is engaged in some inherently dangerous activity from
which it is deriving commercial gain and that activity is capable of causing
catastrophic damage then the industry officials are absolutely liable to pay
compensation to the aggrieved parties. The industry cannot plead that all safety
measures were taken care of by them and that there was negligence on their part. They
will not be allowed any exceptions neither can they take up any defence like that of
‘Act of God’ or ‘Act of Stranger’.

The rule of absolute liability can be defined same as the rule of Strict Liability minus
the defences. Due to the case of Ryland v. Fletcher it was scene that strict liability can
also be escaped. There were many exception/defences for wrongdoers to use and try
to save themselves. Absolute Liability imposes liability direct on the wrongdoer
leaving no way of avoiding liability.

INCEPTION IN INDIA

The following modifications in the existing Doctrine of Rylands vs. Fletcher led to the
following Doctrine of Absolute Liability that prevented the defendants from taking up
any defence against payment of compensation:

 If an industry or enterprise is involved in any inherently dangerous activity,

then for any damage arising out of the conduction of that activity, the
defendants (the owners of the industry) will have no access to any defence or
exception and will be absolutely liable to pay compensation to the aggrieved
parties.
 The enterprise will be held responsible for all possible damages or
consequences resulting from the activity. This will make such industries
provide safety equipments to its workers to prevent any mishap. Therefore,

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 this will safeguard the interests of the workers and will give them a refined,
safe working atmosphere.
 The element of escape which is an essential in strict liability may be ignored
here as this restricts the application of this Doctrine of Absolute Liability as
often incidents may arise where escape of the dangerous thing like poisonous
fumes may not take place outside the industry premises but may damage the
workers inside. In this case, the workers’ right to compensation will not be
ignored. Therefore, the extent of this principle is to be applied in a wider
context ruling out the element of escape.
 In cases where strict liability applies, compensation paid is according to the
nature and quantum of damages caused but in cases of absolute liability,
compensation or damage to be paid is exemplary in nature. The amount
decided upon should be more than the damage caused as industrial hazardous
accidents generally causes mass death and destruction of property and
environment.

A FEW CASES WHERE ABSOLUTE LIABILITY WAS UPHELD

1. M.C. MEHTA VS. UNION OF INDIA (A.I.R. 1987 S.C. 1086)

The S.C. of India was dealing with claims of leakage of oleum gas on the 4th and 6th
December,1985 from one of the units of Shriram Foods and Fertilizers Industries,
Delhi. Due to this leakage, one advocate and several others had died. An action was
brought against the industry through a writ petition under Article 32 of the Indian
Constitution by way of a Public Interest Litigation (PIL). The judges in this case
refused to follow the Strict Liability Principle set by the English Laws and came up
with the Doctrine of Absolute Liability. The court then directed the organizations who
had filed the petitions to file suits against the industry in appropriate courts within a
span of 2 months to demand compensation on behalf of the aggrieved victims.

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2. BHOPAL GAS TRAGEDY / UNION CARBIDE CORPORATION V. UNION
OF INDIA

This doctrine was upheld in the infamous Bhopal Gas Tragedy which took place
between the intervening night of 2nd and 3rd December, 1984. Leakage of methyl-
iso-cyanide (MIC) poisonous gas from the Union Carbide Company in Bhopal,
Madhya Pradesh led to a major disaster and over three thousand people lost their
lives. There was heavy loss to property, flora and fauna. The effects were so grave
that children in those areas are born with deformities even today. A case was filed in
the American New York District Court as the Union Carbide Company in Bhopal was
a branch of the U.S. based Union Carbide Company. The case was dismissed there
owing to no jurisdiction. The Government of India enacted the Bhopal Gas Disaster
(Processing of Claims) Act, 1985 and sued the company for damages on behalf of the
victims. The Court applying the principle of ‘Absolute Liability’ held the company
liable and ordered it to pay compensation to the victims.

3. INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION VS. UNION OF

INDIA, AIR 1996 SC 1446

A PIL filed under Article 32 of the Indian Constitution voiced protests of the
petitioners over the presence of industries that was causing large scale environmental
pollution and endangering the lives of the villagers who resided in the vicinity of the
industries. It violated their right to life and liberty given under Article 21of the Indian
Constitution as they were unable to live in a healthy environment. The Supreme Court
initiated instant action and ordered the Central Government and the Pollution Control
Board to constitute strict measures against the said industries. The court upheld the
Doctrine of Absolute Liability here stating that the polluted environment must be
restored to a pollution free one conducive for healthy living by utilizing anti-pollution
scientific appliances. The expenditure so incurred in this process must be paid by the
industries even if their properties need to be attached for this purpose. The industries
were made absolutely liable for paying monetary damages for restoration of the
environment.

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DIFFERENCE BETWEEN STRICT LIABLITY AND ABSOLUTE
LIABILITY.

Strict Liability Absolute Liability

1. The nature and quantum of 1. The nature and quantum of damages that
damages that are payable to the are payable to the plaintiffs are exemplary, the
plaintiffs are compensatory in nature compensation provided to each aggrieved
i.e. in accordance to the amount of party is much greater in amount that is the
loss suffered by the plaintiff, damages paid are more as in such cases people
damages will be paid equivalent to lose their lives and environmental conditions
the amount lost. become life threatening.
2. The defendants can take the help
of several defences like the
following:-
· Damage caused due to natural use
of land
· Consent of the Plaintiff
2. In this case, it is an absolute liability put
· Plaintiff’s Own Default
upon the defendants where the scope of any
· Act of Stranger
defence being taken is not allowed. They are
· Act of God or Vis Major
held liable for payment of damages under all
· Common Benefit of Plaintiff and
circumstances.
the Defendant
 
· Statutory Authority

If any of the defences apply to a

particular case correctly as decided
by the presiding Judge, then the
defendant will not be held liable.

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CONCLUSION

Negligence as a tort has evolved from the English law and accepted by the Indian law
as a substantially important tort. As discussed negligence is of two types, civil and
criminal and each has various repercussions. In order to prove that an act was
negligent, it is necessary to prove all the essentials namely duty, breach of duty,
damages and actual and proximate cause. An important maxim regarding negligence
i.e Res Ipsa Loquitur is used by the courts when a negligent act cannot be explained.
Also, the defences in a suit for negligence can be used by the defendant to defend
himself from a suit issued by the plaintiff.

The rule of strict liability and absolute liability can be seen as exceptions. A person is
made liable only when he is at fault. But the principle governing these two rules is
that a person can be made liable even without his fault. This is known as the principle
of “no fault liability.” Under these rules, the liable person may not have done the act,
but he’ll still be responsible for the damage caused due to the acts. In the case of strict
liability, there are some exceptions where the defendant wouldn’t be made liable. But
in the case of absolute liability, no exceptions are provided to the defendant. The
defendant will be made liable under the strict liability rule no matter what

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SUGGESTIONS

The concepts of negligence, the rule of strict liability and absolute liability are apt. No
changes in law are required to be made as the introduction of strict and absolute
liability have filled the earlier loopholes where liability could be escaped with
defences that were available. According to me, no alterations are required in the
already established rules of strict and absolute negligence.

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REFERENCE

A) BIBLIOGRAPHY

 ‘Law of Torts with Consumer Protection Act and Motor Vehicles Act’
textbook by Dr.J.N. Pandey ( Ninth Edition, 2014, Central Law Publications)

 The Law of Torts’ textbook by Ratanlal and Dhirajlal (updated 26th edition,
publisher- LexisNexis).

B) WEBIOGRAPHY

 https://www.toppr.com/guides/legal-aptitude/law-of-torts/negligence-tort-law/

 https://www.merriam-webster.com/legal/res%20ipsa%20loquitur

 https://blog.ipleaders.in/negligence-in-the-law-of-torts/

 https://www.legalmatch.com/law-library/article/what-is-a-strict-liability-
tort.html

 http://www.legalservicesindia.com/article/2155/Strict-and-Absolute-
Liability.html

 https://blog.ipleaders.in/concept-strict-liability-absolute-liability/

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