Negligence can be defined as failure to take reasonable care to avoid injury or harm to any other person. In everyday usage, negligence denotes mere carelessness but when defined in legal terms, negligence is when a person does something which a reasonable man would not do and omit to do something which a reasonable man would do in certain circumstances.
According to Winfield and Jolowicz: Negligence is a breach of legal duty to take care which results in damages, undesired by the defendant to the plaintiff.
Few examples of negligence are:
- An owner of a dog leaving his/her dog in the street, knowing the fact that the dog is ferocious and may bite someone is negligence.
- A person getting injured due to falling in a manhole which was not closed.
- Medical negligence like wrong diagnosis by a doctor or surgery of a wrong body organ.
- Over speeding or diving on the wrong side of the road.
These are a few examples of negligence.
ELEMENTS TO DETERMINE NEGLIGENCE
There are three elements that help in determining the tort of negligence. These elements are:
- Duty of care.
- Breach of that duty.
Explanation of the above elements:
- DUTY OF CARE: Before claiming any damages, the plaintiff has to prove that the defendant owed a duty of care towards him or he did not do something which he was supposed to do. There is no general rule of law defining such duty. Duty is seen in each and every case. During determination of this element a lot of factors are taken into consideration like:
- The kind of harm suffered by the plaintiff like is it physical or mental or economic harm.
- Relationship of the plaintiff and the defendant.
- The defendant’s control over the situation that gave rise to the harm and plaintiff’s vulnerability to that harm (Reasonable foresee ability of injury). In this whether the defendant owes a duty to the plaintiff or not depends on reasonable foresee ability of the injury to the plaintiff. If at the time of the act the defendant did something or omitted to do something which he could reasonably foresee may cause injury to the plaintiff makes him liable for negligence.
- CASE LAW: BOOKER VS. WENBORN (1962): In this case the defendant boarded a moving train and left the carriage door open. The door being open outside, created danger for the people standing on the platform. The plaintiff, a porter was standing on the edge of the platform, got hit by the door and got injured and hence it was held that the defendant was liable for the injury as he owed a duty of care to the people standing on the platform.
But if the injury is not foreseeable then the defendant cannot be held liable.
- CASE LAW: CATES VS. MONGINI BROS. (1917):
In this case the plaintiff a lady visitor to a restaurant got injured due to falling of a ceiling fan. The reason of falling of the fan was due to some hidden defect in the metal of the suspension rod of the fan. In an action against the defendants who were running the business it was held that they were not liable because the accident caused could not be reasonably foreseen and they were not negligent.
Reasonable foresee ability does not mean remote possibilities.
- CASE LAW: FARDON VS. HARCOURT-RIVIGTON (1932):
It means that even if it is proved that the injury was foreseeable it is not enough, a reasonable likelihood of the injury has to be proved. In this case the defendant parked his car by the roadside and left a dog inside. Meanwhile the dog jumped and smashed the glass panel and a splinter from the glass injured the plaintiff while he was walking past the car. It was held that the accident was unlikely, and there was no negligence and hence defendant was not liable.
- BREACH OF THAT DUTY: A breach of duty occurs when one fails to fulfil his or her duty of care to act reasonably in any aspect. If a party does not act in a reasonable manner to prevent any foreseeable injury, then duty of care is breached and if the person has acted like any other reasonable or prudent man would act then, there is no negligence.
In breach of duty standard of care is also seen. Now what is standard of care? It is that of a reasonable man or of an ordinary prudent man. If a defendant acted like a reasonable man, then there is no negligence.
STANDARD OF CARE REQUIRED: Few factors are taken into consideration while determining if standard care was taken or not and they are:
- The importance of the object attained: It means the standard of care differs from object to object according to their importance. Example: taking care of gold requires more standard of care as compared to steal because value of the objects differs from each other and this is how importance of the object may be determined. The law says even if it is not of the highest degree but the care should be reasonable. The risk taken is higher if the object taken into consideration is of higher importance especially in the cases of public importance. This can be explained with the help of a case law.
- The magnitude of risk: The degree of risk which a person can take varies from situation to situation that is a person can take high risks in certain situation and low risk in others. What maybe a careful act in one situation maybe a negligent act in another. To determine the standard of care magnitude of risk must be taken into account so that the necessary precautions can be taken into due consideration. E.g. A person carrying a loaded gun should take more precautions than a person walking with an ordinary stick. Also, if the magnitude of risk is high, then the precautions that are taken become high as well.
- Amount of consideration for which services are offered: The degree of care depends upon the kind of service which is offered by the defendant and the consideration charged there for from the plaintiff. In other words, it means that if consideration paid is more, then service that is offered should be better and more degree of care should be shown. It can also be inferred that the consideration is directly proportional to the standard of care offered. Example: A person eating food at a roadside food stall and a person eating food at a five-star hotel demand different degree of care as the consideration paid varies in both the situation.
- DAMAGES: This is the final element which needs to be fulfilled in order to put a tortuous act under the ambit of negligence. It is necessary that the defendant’s breach of duty must cause damage to the plaintiff. The cause of action only arises when actual or real damage is suffered. However, if the damage is minimal no compensation is required. That is, until and unless a real damage is caused no act can constitute to be tort, not even the occurrence of risk. The damages awarded should be sufficient to put the plaintiff back in the position he or she was before defendant’s negligent act. The plaintiff also has to prove that the damages are not too remote and are the consequence of the defendant’s negligence. The initial burden to prove that the defendant is liable heavily lies upon the plaintiff, but once it is discharged then it becomes the duty of the defendant to prove that the incident was the result of inevitable accident or contributory negligence on the part of the plaintiff.
Hence these are the essential elements of a tort and if one of the elements is missing then the tort of negligence cannot be caused.
To conclude negligence is a breach of duty that is when a person does something which he was not supposed to do or omits to do something which he was supposed to do. The essential elements should be fulfilled in order to prove the tort of negligence if one of the elements is not present or fulfilled then the tort is said not to be committed.
Author: Gargi Mishra,
Amity Law School, Student of 3rd Year B.A.LLB(H)