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Concept of Negligence in The Sphere of Civil Law | Overview
- Evolution of the tort of negligence
- Proof of negligence
- Difference between civil negligence and criminal negligence
- Defenses to an action of negligence in civil law
- Remedies in actions of negligence in civil law
This article deals with the concept of negligence in the sphere of civil law. Negligence is a large and amorphous subject. Almost seventy-five years after the seminal decision of the House of Lords in Donoghue v. Stevenson, the boundaries of negligence are still as blurred as ever. Some of the obscurity surrounding this tort is inescapable. However, this article tries to give an overview of the tort of negligence.
I. Evolution of the tort of negligence
The Courts did not recognize the existence of a general duty in tort imposing liability for careless behaviour until the 1930s. The major landmark in the history and growth of the negligence is the House of Lords landmark decision in the famous case of Donoghue v. Stevenson. Prior to this decision, legal liability for carelessness lacked a unifying principle.
The House of Lords held that a manufacturer of ginger beer who had allowed a snail to get into a bottle, where it had died and decomposed, would be liable to the ultimate consumer who became ill as a result of drinking the ginger beer. This reversed the trend of the previous century.
Other restrictive rules of the nineteenth century were similarly reversed: in 1963 was held that liability might arise from a negligent statement when this was relied on by someone who consequently suffered loss, and in 1971 it was held that a duty was owed to trespassers to take reasonable care that they should not be injured.
The court took the earlier approach. This was the result of the courts’ more plaintiff-oriented approach. Thus the present-day law state that liability will be imposed on people who were at fault, without giving any greater definition to the concept of fault.
The Indian law of negligence had its origins in English Law. When India was a colony of the British Government the legal system started its origins in our country; there have been developments in both the countries. Legal Systems of both countries have developed the law in the twin branches of the Law of Torts and the Law of Crimes. These developments have been with regard to the constituent elements; the essential conditions to constitute the wrong, the defences that may be pleaded by the wrong-doer in both the branches and remedies for the wrongs in both the cases. The law in either county at present is not the same as it was earlier though it has the same elements as they were there in the origin of the two branches of law.
The tort of negligence forms one of the most dynamic and rapidly changing areas of liability in the modem common law. Its expansion since the nineteenth century reflects the pressures which the rise of industrial and urban society has brought to bear upon the traditional categories of legal redress for interference with protected interests. The growth and increasing sophistication of insurance has also contributed to this expansion.
Torts can be primarily classified into three types:
- Intentional torts;
- Negligence; and
- Strict liability.
An intentional civil wrong could be wrongdoing that happens once the bad person engages in intentional conduct that ends up in damages to a different. Hitting someone accidentally wouldn’t be an intentional civil wrong since there wasn’t intent to strike the person. This may, however, be a negligent act. Thus in some areas, liability will arise even once there’s no intention to cause hurt or negligence.
Negligence is derived from the Latin word negligentia, which means ‘failing to pick up’.
Negligence, in general, means omission to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate the conduct of human affairs, would do or the doing of something which a reasonable and prudent man would not do. Winfield defines ‘negligence’ as a breach of a legal duty to take care, which results in damage, undesired by the defendant to the plaintiff.
In other words, negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. Further negligence in its legal acceptance includes acts of omissions as well as commission. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.
According to BLACK’s law dictionary, negligence means,
“The failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly, willfully disregardful of others rights”
WILLES. J opines,
“Negligence is a negative word. It is the absence of such care, skill and diligence as it was the duty of the person to bring to the performance of work, which he is said not to have performed”.
In Blyth v. Birmingham Waterworks Co., it was held that
“Negligence is omitting to do something which a reasonable man would do or the doing of something which a reasonable man would not do”.
Negligence as a tort is a breach of a legal duty to take care which results in damage. It has many manifestations – it may be active negligence, collateral negligence, comparative negligence, concurrent negligence, continued negligence, criminal negligence, gross negligence, hazardous negligence, active and passive negligence, willful or reckless negligence, or negligence per se.
In essence, actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered an injury to his person or property.
The essential components of negligence are,
- Existence of a legal duty
- Breach of duty
- Resulting damage
1. Duty of care
The existence of a duty to take care, which is owed by the defendant to the complainant. The word ‘duty’ connotes the relationship between one person and another imposing on the one an obligation, for the benefit of another, to take reasonable care in all circumstances.
Whenever a person approaches another trusting him to possess the certain skill or special knowledge on a given problem and depends on him for service and dispensation of that skill, the second party is under an implied legal duty to exercise due diligence as is expected to act at least in such a manner as is expected in the ordinary course from his contemporaries. So it is not that the legal duty can only be contractual and not otherwise.
Basis of duty of care:
The general principle forming the basis of the duty to take care is enunciated by Lord Atkin in Donoghue v. Stevenson as follows,
“You must take reasonable care to avoid acts or omissions, which you can reasonably foresee, would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question“.
Parameters for evaluating the standard of care
- Importance of Object to be attached- which means if an object is of great importance, then there shall be a difference in standard care when compared to an object which of comparatively less importance. E.g. Public’s welfare is the prime most importance.
- Magnitude of Risk– where a person takes highly due care during some situation and comparatively less care under some circumstances. E.g. A owns a gun which is authorised by law. A shall pay highly due care when the gun is fully loaded. likewise, he shall comparatively pay less care when the gun is not loaded with any bullets.
- Degree of consideration spent for services- The degree of care depends upon the kind of service which is offered by the defendant and the consideration paid by the plaintiff for the same.
Foreseeability, proximity and fairness as a parameter to evaluate the standard of care:
To determine whether an act would be or would not be negligent, it is relevant to determine if any reasonable man would foresee that the act would cause damage or not.
Foreseeability of an act is to be considered by the court not only for the imposition of duty to take care but also for limiting the liability of the persons to whom the duty is owed. Charlesworth states that the reasonable man is only bound to foresee the probable consequences of his act and not the possible consequences. Therefore, if a particular consequence is foreseeable due to breach of duty then such acts constitute negligence. If it is unforeseeable then no cause of action arises.
Proximity means the nearest cause which is responsible for the injury i.e. It involves the notion of nearness or closeness, a nexus or relationship. In other words, it means that if the person who has suffered an injury is directly or rather proximately suffered the loss. Then only the defendant will be liable. An example of proximity (or, rather, a lack of proximity) can be seen in, Alcock v. Chief Constable of South Yorkshire Police– members of the general public coming across the aftermath of the Hillsborough disaster and suffering nervous shock as a result were held to not be owed a duty of care, because the link between the defendants and claimants was held to be too distant.
It should be fair, just and reasonable for the courts to find that the defendant owed a duty of care to the claimant. Owing to the vague nature of this criteria, this stage can be thought of as somewhat of a ‘safety valve’, allowing judicial discretion in cases where public policy might dictate that it would be unreasonable for a duty of care to be held to exist.
So, if all the above three, the case can be said duty of care can be said to exist.
2. Breach of duty
The failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty. There is certainly a breach of legal duty if the person exercising the skill does something which an ordinary prudent man would not have done or fails to do that which an ordinary prudent man would have done in a similar situation. The standards are not supposed to be of very high degree, but just of a relative kind, that is expected from an ordinarily prudent man in the ordinary course of treatment.
Glasgow Corporation v. Muir
Facts: Sunday School children were going to have a picnic. A large tea urn was carried along the corridor got overturned and scalded a girl. The parents of the girl sued Glasgow Corporation, claiming they owed the girl a duty of care and they had breached this.
Held: It was held that the corporation owed a duty of care generally to the people, but, in this case, it did not owe an additional duty of care to the Sunday School since they were not expecting them. Lord Macmillan said the reasonable person test is a bit of an “impersonal test” as “some persons are by nature unduly timorous” and others “fail to foresee or nonchalantly disregard even the most obvious danger” → “The reasonable man is presumed to be free both from over-apprehension and from over-confidence”
Achutrao Haribhau Khodwa v. State of Maharashtra
Facts: The deceased Chandrikabai was admitted in the Civil Hospital, Aurangabad for delivery of a child. As she had got herself admitted to this hospital with a view to undergo a sterilization operation after the delivery, the said operation was performed by Respondent. Soon thereafter Chandrikabai developed high fever and also had acute pain which was abnormal after such a simple operation. The wound of earlier operation was re-opened in order to ascertain the true cause of the seriousness of the ailment and to find out the cause of the worsening condition of Chandrikabai. It was found that a mop (towel) had been left inside the body of Chandrikabai when sterilization operation was performed on her.
Held: In the present case facts speak for themselves. In a case like this, the doctrine of res ipso loquitur clearly applies. Chandrikabai had a minor operation on and due to the negligence of Respondent no.2 a mop (towel) was left inside her peritoneal cavity. There is a breach of duty in the part of the doctor.
3. Resulting damage
Damage, which is both causally connected with such breach and recognized by the law, has been suffered by the complainant. The cause of action only arises when actual or real damage is suffered.
V. Proof of negligence
To prove that whether there was an injury or nor lies upon the plaintiff i.e. the onus of proof is on the plaintiff. Since it is the rule of evidence that a person who alleges negligence must affirmatively prove negligence. However, there is the exception to this such as the doctrine of Res Ipsa Loquitor, which means things speak for itself. In such cases, the onus of proof can be shifted from the plaintiff to the defendant.
Res Ipsa Loquitur
In the common law of torts, res ipsa loquitur (Latin for “the thing speaks for itself”) could be a belief that infers negligence from the very nature of an accident or injury, in the absence of evidence on how any defendant behaved. Although modern formulations have a different jurisdiction, common law originally expressed that the accident should satisfy the required components of negligence, that are duty, breach of duty, causation, and injury. In res ipsa loquitur, the elements of duty of care, breach and causation are inferred from an injury that doesn’t normally occur in absence of negligence.
Elements of res ipsa loquitur
- The injury is of the type that doesn’t normally occur in absence of negligence.
- The injury is caused by an agency or instrumentality inside the exclusive management of the defendant.
- The injury-causing accident isn’t the result of any voluntary action or contribution on the part of the plaintiff.
- Defendant’s non-negligent clarification doesn’t utterly justify plaintiff’s injury.
The Supreme Court of India in the Krishna Bus Service Ltd. v Smt. Mangli & Ors. held:
“It would be for the driver who has special knowledge ofthe relevant facts to explain why the vehicle overturned. A presumption about the negligence will arise. In the absence of any explanation by the driver the maxim res ipsa loquitur would be attracted.”
National Small Industries v. Bishambhar Nath
Facts: The defendant had been storing combustible material in the rooms which were in his exclusive control and supervision. Only the workers of the defendant had access to these rooms. The workers were in the habit of smoking cigarettes and bidis inside the storeroom during working hours. No circumstances could be located which would suggest an extraneous source of fire. The explosives were also not such as would ignite by themselves. The cause of the fire was thus attributed to negligence of the employees of the defendants on the basis of the probability of their having a lighted cigarette and in the storeroom.
The court held that,
“Where the circumstances are not equivocal and in all probability the fire would not take place, but for some negligence on the part of the defendant or his employees, there is no reason not to apply the doctrine res ipsa loquitur “.
The Court also relied on section 114 of the Evidence Act and held:
“The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case.”
Municipal Corporation of Delhi v. Subhagwati 
Facts: Suits for damages were filed by the plaintiff as a heir of three persons who dies as a result of collapse of the clock belonging to the defendant corporation.
Decision: The court held that doctrine of res ipsa loquiter was rightly applied as in the circumstances of the case the mere fact that there was a fall of the clock tower, which was exclusively under the ownership and control of the defendant, would justify raising an inference of negligence so as to establish a prima facie case against the defendant.
In State of Punjab v Mt. Champa, the High Court considered that principle laid down in Rylands v. Fletcher, Municipal Corporation of Delhi v. Subhagwanti and Mangilal v. Parasram drew the following inference on negligence and res ipsa loquitor:
- The standard to determine whether a person has been guilty of negligence is the standard of care which, in the given circumstances, a reasonable man could have foreseen.
- The test is foreseeability, not probability.
- The more serious the consequences if care is not taken, the greater is the degree of care which must be exercised.
- While the initial burden of proof of negligence is on the claimant, barring exceptional cases, the principle, ‘res ipsa loquitur’ comes into play. It is a rule of evidence and does more than cast a provisional burden on the defendant.
- Having regard to the local conditions prevailing in this country, when the res ipsa loquitur is attracted, it should be given wide as amplitude and as long a rope as possible in its application to the case of a motor accident.
- The defendant cannot escape liability merely by preferring hypothetical explanations, however plausible, of the accident.”
No cause of action arises unless all three components exist. If the claimant satisfies the court on the evidence that above mentioned three ingredients are made out, the defendant should be held liable in negligence. The damage caused may be physical to the person or property, mental or financial, which is recognized by law and caused by breach of duty which was reasonably foreseeable.
VI. Difference between civil negligence and criminal negligence
Negligence can be of both civil and criminal wrong.
To be a criminal negligence,
- Mens rea (guilty mind) must exist.
- The breach of duty should amount to death (not amounting to culpable homicide) to amount to criminal negligence.
- The proof should be beyond a 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 produced by the plaintiff against the tortfeasors should be of cogent and clear.
Extent of liability:
The extent of liability in tort depends on the amount of damages done, but the extent of liability in criminal law depends on the amount and degree of negligence. The unliquidated damages awarded in tortious action is distinguishable from the mode of punishment imposed in criminal liability. This distinction between tort and crime has been reduced in England by giving power to the criminal courts to pay compensation to the victim. In India by way of interpretation of Section 357 of the Code of Criminal Procedure 1973, the Supreme Court has observed that the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of the accused.
In M. C. Mehta v. Union of India, the Supreme Court of India held that the criminal liability of a doctor was subject to Latin maxim, actus nonfacit reum, nisi mens sit rea, i.e., the act itself does not make a man guilty unless his intention was so.
Distinction between civil and criminal liability
Lord Atkin in his speech in Andrews v. Director of Public Prosecutions, stated that,
for purposes of the criminal law there are degrees of negligence and a very high degree of negligence is required to be proved before the felony is established. Thus, a clear distinction exists between “simple lack of care” incurring civil liability and “very high degree of negligence” which is required in criminal cases.
Lord Porter said in his speech in the same case that a higher degree of negligence has always been demanded in order to establish criminal offence than is sufficient to create civil liability.
The Supreme Court in Syed Akbar v. State of Karnataka has dealt with and pointed out with reasons the distinction between negligence in civil law and in criminal law. Their Lordships have opined that there is a marked difference as to the effect of evidence, viz., the proof, in civil and criminal proceedings. In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the Court, as a reasonable man, beyond all reasonable doubt. Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
VII. Defenses to an action of negligence in civil law
There are two kinds of defences in Law of Torts, one known as the General Defenses and the other known as the Special Defenses. The General Defenses are applicable to all Torts, the Special Defenses like the ones described herein deal with such defences which are especially applicable to the Tort of Negligence and if proved the plaintiff would be non-suited.
In the case of the Tort of Negligence, there are certain defenses of the general type and there are certain special defenses as well. The general defenses are those which from good old days have been invoked by the defendants to defend the claim put forward against them for the torts committed against them. These defenses have origin in the principles of Common Law and there are certain defenses which are the gift of the statutory enactments.
This part highlights the important defenses by which the defendant may defeat the action of Negligence against him.
1. Contributory negligence
Contributory negligence in common-law jurisdictions is mostly a defense to a claim based on negligence. When the plaintiff by his own want of care contributes to the damage caused by the negligence or wrongful conduct of the defendant, he is considered to be guilty of contributory negligence. This is a defense in which the defendant has to prove that the plaintiff failed to take reasonable care of his own safety and that was a contributing factor to the harm ultimately suffered by the plaintiff.
This principle has relevancy to the determination of liability and is applicable once plaintiffs/claimants have, through their own negligence, contributed to the hurt they suffered. Here, plaintiffs negligence does not mean a breach of duty towards the other party but it means the absence of due care on his part about his own safety. It can even be applied by the court in a tort matter no matter whether or not it absolutely was pleaded as a defense.
There is no contributory negligence if the plaintiff has taken as much care as a prudent man in a similar situation.
In Sushma Mitra v. Madhya Pradesh State Road Transport Corporation the plaintiff was travelling in a bus resting her elbow on a window sill. Thus bus at that time was moving on a highway. She was injured when hit by a truck which was coming from the opposite direction. When sued for the injury, the defendant took the plea that the act of resting the elbow on a window sill was an act of contributory negligence. The Madhya Pradesh High Court did not allow this defence. It was held that as she acted like a reasonable passenger while the bus was moving on the highway she was entitled to claim compensation.
In some jurisdictions, the belief states that if a victim, who is guilty to any degree, even if he is guilty for only one per cent, is also denied compensation entirely. This can be referred to as pure contributory negligence.
In Butterfield v. Forrester  the defendant wrongfully obstructed a highway by putting a pole across it. The plaintiff who was riding violently in the twilight on the road collided against the pole and was thrown from his horse and injured. If the plaintiff had been reasonably careful he could have observed the obstruction from a distance of 100 yards and thus avoided that accident.
It was held that the plaintiff had no cause of action as he himself could have avoided the action by exercising due care.
Lord Ellenborough, CJ said,
“One person being in fault will not dispense with another’s using ordinary care for himself. Two things must occur in support of this action, an obstruction in the road by the fault of the defendant and no want of ordinary care to avoid it on the part of the plaintiff.”
This rule worked a great hardship particularly for the plaintiff because for a slight negligence on his part he may lose his action against a defendant whose negligence may have been the main cause of damage to the plaintiff. The courts modified the law relating to contributory negligence by introducing the so-called rule of ‘Last Opportunity’ or ‘Last Chance’.
Last opportunity rule:
According to this rule, when two persons are negligent that one of them who had the later opportunity of avoiding the accident by taking ordinary care should be liable for the loss It means that if the defendant is negligent, and the plaintiff having a later opportunity to avoid the consequences of the negligence of the defendant does not observe ordinary care, he cannot make the defendant liable for that. Similarly, if the last opportunity to avoid the accident is with the defendant he will be liable for the whole of the loss to the plaintiff.
Till the passing of Law Reform (Contributory Negligence) Act 1945, contributory negligence was a complete defense in England. This legislation has regulated the application of this defense. It provided for reduction of damages recoverable in case of contributory negligence. The legislation gives the most important directions that the reduction of damage shall not be unfair, unjust, capricious and arbitrary, but it shall be based on equitable principles of justice.
Law in India
Contributory negligence was never accepted as a complete defense in India. High Courts in India dealt this matter in the initial independence years.
In Jang Bahadur Singh v. Sunder Lal Mandal And Ors., the court observed that, “Contributory negligence implies negligence on both sides. It is a question of fact in each case whether the conduct of the plaintiff amounts to contributory negligence. Thus, where a party’s negligence, even though it continued to the end but did not contribute to the accident, or the collision, which was entirely due to the negligence of the other party, the latter is liable to the former in damages”
In Rehana Rahimbhai Kasambhai v. The Transport Manager, Ahmedabad, the court held that,
“This rule of “last opportunity” obviously failed to give equitable treatment to the parties concerned because it was based on an illogical postulate that in every case the person whose negligence came last in time was solely responsible for the damage. It took no account of the partial contribution to the unfortunate accident by the other party”.
In the instant case, the Court observed that “The question is to what extent she has made this contribution. Answer to this question is necessary because the damages which would eventually be awarded to the petitioner would stand reduced in proportion to her contribution to the accident” Thus not a complete bar of recovery but the only apportionment was set as a practice in such cases.
Liability can even be imputed to an owner of an automobile who lends it to a friend. Here, the driver of the automobile is acting in the capacity of an agent of the owner. If the owner is harmed by the driver’s negligence and sues the driver, the owner will lose the case as a result of the negligence of the driver is imputed to the owner, thereby rendering him contributory negligent. This concept is understood as imputed contributory negligence
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, earthquake etc.
In Nichols v. Marsland, 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 exceptionally 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.
3. Inevitable accident
Inevitable accident also works as a defence of negligence. An inevitable accident is beyond the control of a reasonable prudent man. It could not possibly, be prevented by the exercise of ordinary care, caution and skill.
In Stanley v. Powell, 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 and injured the plaintiff. It was held that the accident was an inevitable accident and the defendant was not liable.
VIII. Remedies in actions of negligence in civil law
The remedy for the action of negligence in civil law is unliquidated damages (i.e. the amount of damages depends on the facts of the case and the nature of the injury sustained by the claimant), injunction or remuneration.
What to do in case of civil negligence?
- A suit or a plaint need to be filed in a court of judicature stating the things happened to you.
- The person filing the suit needs to authorise an advocate to represent on his/her behalf by filing a vakalatnama. This is not a compulsion.
- Then comes the hearing stage where the parties to the suit are heard and the documents are verified by the judge.
- Written statements needs to be filed by the respondents proving himself to be free of whatever charge the plaintiff has put against him.
- The plaintiff has to reply to the recorded written statement of the defendant substantiating himself in the court of law.
- The other documents required to substantiate the arguments by each of the parties has to be filed.
- Then the judges frame the issues and the parties will have to fight their case upon the issues so framed according to the substantiated documents and evidence.
- The documents that substantiated by the parties, need also to be accomplished by a witness who will prove in the court that he saw or witnessed the event or so.
- Once the witnesses, documents and issues are looked into, the judge decides as to in whose favour the judgement should be and acts as an empire in the adversary system of the Indian Courts. The judgement is either given in the form of paying damages, compensation, injunction or remuneration for the losses suffered.
- M.N. Shukla, The Law of Torts and Consumer Protection Act, 18th Edition 2010; Published by Central Law Agency, Allahabad.
- Ratanlal and Dhirajlal, The Law of Torts, 24th Edition 1997 Reprint 2002; Published by Wadhwa and Company, Nagpur, India.
  AC 562.
  AC 562.
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 Charlesworth & Percy on Negligence, (9th ed.), p. 23
  UKHL 5
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