NEGLIGENCE

Winfield

Negligence –> a breach of duty which results in damages

Alderson

An omission to do something which a reasonable man guided upon those

considerations would do or doing something which a prudent and
reasonable man wouldn’t do.

Jacob Mathew Vs State of Punjab – AIR 2005 SC 3180

Apex Court upheld Alderson’s dictation of negligence and added that –

“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 injury to his person or
property”

Characteristics of negligence

 not intentional
 not planned
  some type of injury is caused.

Heaven V Pender (1883)

 Held – ‘one man may owe duty to another, even though there is no
contract’.
 By virtue of proximity to persons or property, there is a duty
conferred upon a person in near proximity to avoid doing acts that
may injure the persons or property of others close to them.
 a duty to care will arise if due care is not taken towards the person
or property of another resulting in damage done by one to
another.

Advertent Negligence

aka wilful negligence or recklessness. harm is unintended but predictable.

Inadvertent Negligence

harm is neither intended nor predictable.

Theories of Negligence

Subjective theory of negligence – holds that negligent act is the opposite of

an intentional act and relies heavily on the state of mind or a mental
attitude of undue differences. It holds that negligence arises due to the
inability to respond prudently in demanding circumstances.

Objective theory of negligence – it places emphasis heavily on the conduct

and reasonable precaution. It is not due to inability or certain failure to
apply one’s mind that negligence occurs but due to the omission to take
adequate or the requisite amount of care. However, by the application of
this theory you cannot ascertain if the conduct is enough to ascertain if the
care exercised is enough to be amounting to negligence as it is ambiguous
whether the conduct is negligent, accidental or intentional.

ESSENTIALS OF DAMAGE

duty of care -> breach -> damage

Duty of care

duty of care = legal not moral, religious or social duty. it establishes a

relationship with regard to such duty wherein there is an obligation to
maintain proper care to avoid injuring the claimant in any circumstance.

negligence does not exist in a vacuum and such duty is not universal or
owed to the whole world.

duty of care is an instrument that helps establishing who can bring a suit
for negligence and in what circumstances.
demands for protection are virtually limitless in such cases.
two ways to establish duty of care are either through a special relationship
or through principles developed by case laws.

Established duty of care situations = court can easily recognize where duty
of care is needed. element of special relationship

Donoghue v Stevenson (padhle)

neighbour principle – where a manufacturer intends for the product to

reach the ultimate consumer where no interference with such a
manufactured product can be ensured and wherein the product was not
created with reasonable precaution where injury to claimant may occur,
that duty of care is owed. (lord atkin ka maine verbatim ki maa bhen kar ke
likha hai)

The House of Lords held that the manufacturer owed her a duty to take
care that the bottle did not contain foreign bodies which could cause her
personal harm.

proximity rule / neighbour principle

Grant vs. Australian Knitting Mills Ltd.

Plaintiff got dermatitis because the garment was in defective condition

owing to the presence of excess sulphite. the defect was hidden and latent.
duty of care present for which manufacturers were held liable.
Caparo Industries plc v Dickman

The basic elements that need to be considered in establishing duty of care

are :
◦ Was there reasonable foresight of harm?
◦ Was there sufficient proximity of relationship?
◦ Was it fair, just and reasonable to impose a duty? / liability for failing to
act

exceptions to liability for failing to act – There is a duty to act positively if

there is a special relationship or a relationship of power or control between
the parties. eg – officers and prisoners, employer employee etc.

The existence of a duty of care requires reasonable foresight of harm.

However, in the case of unborn children, the defendant might not realise
that the female claimant is pregnant, although it is quite possible that a
person’s negligence might harm an unborn child.

Bourhill v Young

a motor cyclist exercised rash driving killing himself and injuring a

pregnant woman who due to this suffered a nervous shock and birthed a
still born child. he owed no duty for her injury since he most likely could
not reasonably anticipate such result of his act.

breach of duty - whether the defendant has not come up to the standard of
care required by law.
average amount of competence required not highest.

In Hall v. Brooklands Auto-Racing Club [1933] 1 KB 205 (CA), Greer LJ

described a reasonable person as:
◦ ‘the man in the street’; or
◦ ‘the man on the Clapham omnibus

negligent conduct measured against reasonable conduct.

The importance of the object attained

◦ The law does not require greatest possible care, but the care is that of the
reasonable man under certain circumstances.

The magnitude of the risk

The degree of care varies as per the likelihood of harm and seriousness of
injury. For example- A person handling a loaded gun is expected to take
more care than a person carrying an ordinary stick

Smt. Shivkhor V Ram Naresh (AIR 1978 )

It was held that the teachers were negligent as they did not take proper
care of the boys.

Rural Transport Service vs Bezlum Bibi, AIR 1980 Cal 165 (driver and
conductor held negligent)
deceased boarded an overcrowded bus, had to sit on the roof due to lack of
accommodation, got hit by an overhanging branch of a tree suffered
injuries, succumbed and died the next day. mother and brother of the dead
lodged a claim for 20,000 for compensation. inviting passengers to the roof
is negligent.

Municipal Corporation of Delhi vs. Subhagwanti (1996) (negligent conduct)

A clock tower in Chandni Chowk, Delhi aged 80 collapsed and caused the
death of many people. normal life of clock tower 40-45. mcd failed to get
periodic check up and repairs.

Muir Vs. Glasgow Corporation, (1943) AC 488 (not negligent)

Old mansion house in King’s Park, Glasgow was used for service of teas at
that time. two members of the picnic party carried big urn of tea, one lost
grip of handle and injured six young children. It was alleged that manager
could not anticipate such an event would happen as a consequences of tea
urn being carried through passage and therefore, had no duty to take
precautions against the occurrence of this event.

standard of foresight – impersonal test. eliminates personal equation,

independent of idiosyncrasies of such a person in question. Free from over-
confidence or over-apprehension.

Ishwar Devi V Union of India ( AIR 1969 Del 183) (negligent)

In this case the conductor and driver of the bus were held liable for rash
and negligent act. In this case when the deceased placed his foot on the
foot-board of the bus and had not yet gone in, the conductor in a very hasty
manner rang the bell and the driver started the bus. All this was done in an
attempt to overtake another bus as a result of which the deceased got
squeezed or sandwiched between the two buses and sustained serious
injuries and died.
Sushma Mitra vs Madhya Pradesh State Road, AIR 1974 MP 68 (not
negligent, plaintiff herself was of negligent conduct in trial court) (mpsrtc
negligent in HC and HC upheld that plaintiff was not informed to not rest
her elbow on the sill)

The plaintiff alleged that bus from MPSRTC was going from Jabalpur to
Chhindwara. There was a head on collision of two vehicles of about seven
miles from Jabalpur. Plaintiff received severe injuries to right elbow
causing multiple fractures.

insurer of the truck, Motor Owners Insurance Co. pleaded that plaintiff
herself projected elbow out

reasonable person average not perfect.

duty of care and standard of care are not synonymous. standard of care
determines if the conduct is appropriate to be considered negligence and
duty of care is a preexisting duty of a conduct of reasonable stature.

Special standards of care

There are certain situations in which the courts apply a different standard
of care from that of the reasonable person since the
application of the general standard of care as that of the reasonable person
would not be suitable:
◦ where the defendant has a particular skill;
◦ where the defendant has a particular lack of skill;
◦ where the defendant is a child;
◦ where the defendant is competing in or watching a sporting event.
For instance, a doctor would be expected to show a greater degree of skill
and care to a patient than ‘the man on the Clapham omnibus’

V.Krishan Rao Vs Nikhil Super Speciality Hospital, (2010) 5 SCC 513

(negligent)
Krishna Rao, an officer in malaria department filed a complaint against the
hospital. Wife wrongly treated for typhoid fever instead of malaria fever.
principle of res ipsa loquitor applied and 2 lakh compensation

Jacob Mathew .V. State of Punjab, 2005 (6) SCC 1

Sometimes in certain situation there must be greater risk in the operation

but higher chances of success and in another move there would be lesser
risk but higher chances of failure.

Wooldridge V. Summer (no negligence)

A rider took a sharp turn on his horse and horse went out of control,
plunged off track and injured photographer.

legal principle - ‘an error of judgment’ on the part of the rider rather than
actionable negligence’, no reckless disregard for safety of spectators
displayed

No foreseeability, no liability of the defendant - When the injury to the

plaintiff is not foreseeable then the defendant is not liable.
Cates vs. Mongini Bros (1917) (no negligence)
◦ The plaintiff, a lady visitor to a restaurant was injured by the falling of
celling fan on her. There was latent defect in the fan which could not have
been discovered by a reasonable man. It was held that since the harm was
not foreseeable, the defendants were not liable.

Krishnappa Naidu V The Union of India (1975) (no negligence since not
foreseeable)
◦ The taxi of the plaintiff was hit by the railway train while passing through
a level crossing.

Proximity in relationship –

 To establish negligence, it is not enough to prove that the injury was

foreseeable, but a reasonable likelihood of the injury should also be
shown.
 Reasonable foreseeability =/= remote possibility
 existence of proximity
 possibility of negligence should be existent in the mind of an
ordinary reasonable man in such a situation

Duty must be towards the plaintiff or else no right to sue

Dickson vs. Reuter’s Telegraph Co (1877) (no negligence)

◦ A telegraph meant for B by A was wrongly delivered to C . C acted on the
telegram and sent goods to A but A refused to accept the goods as he had
ordered the goods from B and not from C. On a suit by C upon the
telegram company it was held that the company did not owe any duty of
care to C. C had therefore no cause of action.

Palsgraf vs. Long Island Railroad Co (1928) (not negligent)

Passenger was trying to board a moving train but he was unsteady. The
railway guard pushed him from behind to help him board the train in the
course of which that passenger dropped a package of fireworks that was on
his person and caused an explosion consequently. This caused a tall, coin
operated scales topple onto the plaintiff who was about 25 feet away. She
sued the defendants for negligence but the guard was not liable to her as
they were not in proximity but was likely to be liable to the passenger.

Haley vs. London Electricity Board (1965) (defendants held liable for
negligent)

The defendant had dug a pit to install an electric wire provided they had
the legal authority to do so. The plaintiff being blind, fell into the pit and
was seriously injured. It was found that the safety measures taken by the
defendants were only adequate for persons with general eyesight and not
for the visually impaired.
King vs. Philips (1953) (not liable to mother for negligence)
The defendant, a taxi driver while reversing his taxi carelessly trampled
over the tricycle of a small boy playing on the streets. His mother who
heard his screams, after rushing over to see the run over tricycle from the
window suffered nervous shock. It was held that the driver was negligent
vis-à-vis the boy but not towards the mother.

BREACH OF DUTY
Other relevant factors to help determine the standard of care –

 the magnitude of the risk

 the cost and practicability of precautions
 the social value of the defendant’s activities
 what a reasonable person would have foreseen

Magnitude of the risk

The kind of risk involved determines the precautions which the defendant
is expected to take.

◦ The position in this regard was explained by Venkataramiah, J. in Mysore

State Road Transport Corporation vs. Albert Disa (1973) as under:
◦ Negligence is the failure in the duty to take care. The expression ‘due’
connotes that degree of care which a reasonable man ought to take in a
given set of circumstances. What may amount to ‘negligent’ act in a
particular place and occasion may not be a negligent act in another place or
occasion. In deciding what care was called for by a particular situation, one
useful test is to enquire how obvious the risk must have been to an
ordinary prudent man. The question in each case, therefore, depends upon
its own facts
The degree of care depends upon the magnitude of risk which could have
been foreseen by a reasonable and prudent man. “Thus, the driver of a
vehicle should take greater care when it is drizzling…” ( Satyawati Devi vs.
Union of India, AIR 1967 Del 98).

There is no definite standard for risk adequate to constitute negligence

however the degree of care varies directly with the risk involved.
Nirmala vs. Tamil Nadu Electricity Board (1984) (negligent conduct)

High tension wire running over a farm got snapped and the plaintiff who
stepped over it was instantaneously struck dead by electrocution. It was
held that the maintenance of the wire was insufficient and inadequate with
not enough precautions taken.

Kerala State Electricity Board vs Suresh Kumar (1986) (negligent)

A minor boy came in contact with an overhead electric wire which had
sagged to 3 feet above the ground, got electrocuted thereby and received
burn injuries. The electricity board had a duty to keep the overhead wire 15
feet above the ground. The Board was held liable for the breach of its
statutory duty.

Smt. Shivoker vs. Ram Naresh ( AIR 1978 Guj 115) (teachers held
negligent)
In this case, two teachers accompanied 60 boys to a picnic. Both the
teachers were having meals at the same time. Some of the boys went to the
river where one of them, aged 12, drowned.
Bishwa Nath Gupta vs. Munna (1971)
Driving of a truck at a speed of 10 to 12 miles per hour was held to be
negligent when the children playing on a road were visible to the driver
and he could anticipate that some of them may cross the road on seeing the
approaching truck. The duty in such a case was to drive so slow that in
case of necessity the vehicle could be immediately stopped.

Indian Roadways Corporation v Karunanidhi (AIR 1982 Mad 104) (held

neg;igent)
Three boys were going by the same cycle on the left side of the road . A bus
was coming from the opposite direction. The speed of the bus was slowed
down because bus stop was approaching. Seeing the dogs fighting on the
road the driver further slowed down the speed of the bus. The dogs began
to the run towards the cyclist. In order to save themselves from dogs the
cyclist turned it towards the right side and in doing so he lost control of the
cycle and one of them fell down on the right side and two on the left side.
The driver saw them falling but did not apply the brakes immediately and
consequently the bus run over the right hand of the boy permanently
disabling it.

Unskilled defendants
The general standard of care in negligence is an objective test judged
against the standards of the reasonable person in such circumstances.
Therefore, inexperience or lack of skill holds no validity as a defense.

Nettleship v. Weston (1971) 2 QB 691 (ca)

Concerning negligence, unskilled defendants
Facts – A learned driver crashed into a lamp post and injured instructor.
Judgement – Held liable despite her inexperience as standard of care
weighed against a reasonably competent driver.

Policy consideration:
Instrumental and material in limiting who can claim such duty of care not
to cause economic loss that was owed to them by a person committing a
wrong.

Social value
Where the defendant’s behaviour is in the public interest, it is likely to
require the exercise of a lower standard of care.
In Daborn v. Bath Tramways Motor Co Ltd [1946] 2 All ER 333 (CA)
◦ Asquith LJ stated that ‘the purpose to be served, if sufficiently important,
justifies the assumption of abnormal risk’. Where human life is at risk, a
defendant may also justifiably take abnormal risks .
◦ However, this does not mean that the defendant is justified in taking any
risk. Emergency services, for example, must still take care in passing red
traffic signals and remember to use their sirens and lights to alert other
road users to their presence.

DAMAGE

The third element of negligence is the damage caused due to breach of

duty. The plaintiff needs to prove that the damage cause is not too remote a
consequence of defendant’s negligence. The onus falls on the plaintiff to
prove all items of the damages in order to claim them.
The duty to assess the damage falls on the Court wherein the Court abides
by the rules that govern its practice.

Proof of Negligence: Res Ipsa Loquitor

The legal burden of proving breach of duty falls on the claimant wherein it
must be established ‘on balance of probabilities’ (accounts of circumstances
that could’ve taken place). However, there are certain circumstances in
which the maxim res ipsa loquitor is employed (the thing speaks for itself).

Here, negligence can be easily proved without detailed evidence and

therefore poses as prima facie negligence.

Conditions for res ipsa loquitor –

1. the thing causing the damage is under the control of the defendant or
someone for whose negligence the defendant is responsible;
2. the cause of the accident is unknown;
3. the accident is such as would not normally occur without negligence.

If res ipsa loquitur is available, then it raises a prima facie presumption of

negligence against the defendant. The defendant must then explain how
the accident could have occurred without negligence. If the defendant
succeeds, then the claimant must try to prove the defendant’s negligence.
This will be difficult, since, if negligence could be proved it is unlikely that
the claimant would have relied on res ipsa loquitur in the first place. The
burden of proof does not shift from the claimant

Municipal Corp of Delhi vs. Subhagwati (1996) (res ipsa loquitor worked in
this case)
Nervous shock.
Shock to nerves and brain structure. Effective when by physical injury and
rarely through sight or hearing.

Victorian Railway Commissioner vs. Coults (1888)

The privy council refused to recognize or acknowledge liability of the
shock through sight or hearing without physical contact in a situation
involving fear of collusion causing nervous shock. The law cannot assess
the degree of intensity or value or prescribe compensation for the same.

Wilkinson vs. Downton (1897) (plaintiff entitled to damage)

The defendant pranked the plaintiff that her husband was injured in an
accident and admitted to a hospital and advised her to go to the hospital
and bring him home. As a result of hearing such news, she became ill, her
hair turned white and her health worsened. These consequences were not
in any way the result of a history of poor health, weakness of constitution
and there was no evidence of predisposition to nervous shock or any prior
idiosyncrasy.

Dulieu vs. White (1901) (held room for sufficient negligence)

The claimant was pregnant and behind the bar in her husband’s public bar.
A horse and cart crashed into the pub. The claimant was not physically
injured but feared for her safety and suffered shock. She gave birth
prematurely nine days later and the child suffered developmental
problems.
Held: An action could lie in negligence for nervous shock arising from a
reasonable fear for one’s own immediate safety

Plaintiff must prove the following things:

◦ Necessary chain of causation between the nervous shock and the death or
injury of one or more parties caused by the defendant’s wrongful act.
◦ Plaintiff required to prove shock caused to him by seeing or hearing
something. Physical injury is not necessary.
◦ Close relationship with plaintiff is necessary to be shown and also that his
proximity to the accident was sufficiently close in time.

Kinds of damages:

Compensatory damages – compensate means to offset an error or

undesirable effect. There are two types of compensatory damages – actual
and general. Actual damages reimburse an individual for duns paid out-of-
pocket for medical treatment, rehabilitation, repairs or replacement, lost
wages and substitute transport. General damages include estimate of loss
which does not involve actual monetary expenses and include future
expenses, value of mental or emotional injury suffered and probable losses
that could’ve been deducted.

Punitive damages – Purpose to punish a defendant for acts of gross

negligence or intentional misconduct that caused personal injury to the
plaintiff. These are imposed in a strict manner to prevent the allowance of
similar negligence in the future.

Nominal Damages – It is damages made in due acknowledgement that the

plaintiff suffered due to the defendant’s misconduct and such damages are
awarded in a small amount to acknowledge the plaintiff being legally
wronged.

◦ Causation and remoteness provide the link between the defendant’s

negligent conduct and the harm suffered by the claimant.
CAUSATION
◦ The claimant must show a causal link between the defendant’s act or
omission and the loss or damage suffered. This is often referred to as the
‘chain of causation’.

Factual causation
◦ The breach of duty must be the factual cause of the damage. The general
test used by the courts to determine factual causation is known as the ‘but
for’ test.

Cork v. Kirby MacLean Ltd (1952) 2 All ER 402 (CA) (held liable)

◦ Concerning: causation; ‘but for’ test

◦ Facts: A workman, an epileptic, was set to work painting the roof inside a
factory, which necessitated his doing the work from a platform some 23
feet above the floor of the factory. There were no guard-rails . The
workman fell from the platform and was killed.
◦ Legal principle: Lord Denning stated that:
◦ . . . if the damage would not have happened but for a particular fault, then
that fault is the cause of the damage;
◦ if it would have happened just the same, fault or no fault, the fault is not
the cause of the damage.
◦ In this case, had appropriate railings been installed, the claimant would
not have not fallen off the platform while having the seizure.

◦ Barnett v. Chelsea and Kensington Hospital Management Committee

[1969] 1 QB 428 (QBD)
◦ Concerning: causation; ‘but for’ test
◦ Facts ◦ A patient was turned away from a casualty department by a
doctor who refused to examine him. He later died of arsenic poisoning. It
was shown that the man would not have recovered even if the doctor had
treated him.
◦ Legal principle ◦ The hospital was not liable for the clear breach of duty in
failing to treat the patient. The failure to treat was not the cause of death.
The patient would have died just the same.

Problems in proving factual causation –

 Although the ‘but for’ test might seem straightforward there are
situations in which proving factual causation is very difficult. This
occurs where the following are involved:
 multiple causes of damage
  a ‘lost chance’ of recovery
 multiple consecutive causes of damage.

Read: https://digestiblenotes.com/law/tort/causation.php

Multiple causes of damage – Here the claimant does not need to emphasize
that the defendant’s breach of duty was the only or main cause of damage
to have it contribute or constitute a share in proving negligence on the part
of the defendant.

Bonnington Castings Ltd v. Wardlaw [1956] AC 613 (HL)

◦ Concerning: causation; multiple causes of damage
Facts ◦ The claimant contracted pneumoconiosis after working for years in
dusty conditions. There were two main causes of dust in the foundry, one
of which was required by law to be extracted. It was impossible to prove
which dust the claimant had inhaled.
Legal principle ◦ Since the dust which should have been extracted was at
least a partial cause of the damage, the defendant was liable in negligence.
The claimant therefore only needs to show that a defendant’s breach of
duty ‘materially contributed’ to the damage.

A ‘lost chance’ of recovery – The courts are extremely reluctant to impose

liability where the negligence of the defendant caused the claimant to lose
a chance.

◦ Hotson v. East Berkshire Area Health Authority [1987] AC 750 (HL)

◦ Concerning: causation; lost chance
◦ Facts ◦ A boy fractured his hip when he fell from a tree. The hospital
made a misdiagnosis and the boy developed a hip deformity. Experts
confirmed that he would have had a 75% chance of developing the
deformity with a correct diagnosis. The Court of Appeal upheld the
decision of the trial judge who awarded the boy 25% of the damages that
were considered appropriate for his injury. The Health Authority appealed
to the House of Lords.
◦ Legal principle ◦ The decision of the Court of Appeal was reversed. The
House of Lords considered that, since there was only a 25% chance that the
negligence had caused the boy’s injuries, this did not satisfy the balance of
probabilities.

Multiple consecutive causes of damage – Where there are consecutive

causes of damage, the application of the ‘but for’ test is applied to the
original defendant.
Performance Cars Ltd v. Abraham [1962] 1 QB 33 (CA) ◦ Concerning:
multiple consecutive causes
Facts ◦ The first defendant negligently drove into a Rolls-Royce. The Rolls-
Royce was later negligently struck by another car, driven by the second
defendant.
Legal principle ◦ The first defendant remained liable. The second defendant
was not liable for the cost of the respray since the car already needed a
respray on the same point at the time of the collision with the second
defendant.

Novus actus interveniens – An intervening act may break the chain of

causation between the defendant’s breach of duty and the loss or damage
suffered by the claimant.
◦ If the novus actus interveniens is sufficient to break the chain, then the
defendant may not be liable despite being in breach of the duty of care. The
intervening act may be:
◦ a third-party act;
◦ an act of the claimant; or
◦ an act of nature.

For a third-party act:

Jobling v. Associated Dairies, [1982] AC 794 (HL)
◦ Facts: The claimant was injured at work due to his employer’s
negligence. He slipped and injured his back and lost 50% of his earning
capacity as a result. Three years later, he developed spondylotic
myelopathy, a spinal disease. This had not been brought about by the
accident. He was consequently unable to work.
◦ Legal Principle: The disease of the spine was held to be a novus actus
interveniens which did break the chain of causation.

Act of the claimant – here, the claimant’s own act will contribute to novus
actus interveniens due to plaintiff’s own carelessness which blurs the line
and magnitude between damage caused through subsequent acts and that
of acts of the defendants.

◦ McKew v. Holland Ltd [1969] 3 All ER 1621 (HL)

◦ Concerning: novus actus interveniens; act of the claimant
Facts: As a result of the defendants’ negligence, the claimant suffered a leg
injury. This left his leg seriously weakened. He later fell when attempting
to descend a steep flight of steps with no handrail, suffering further serious
injuries. He did not seek assistance in climbing the stairs.
Legal principle: Here, the plaintiff worsened his own condition by his
misconduct breaking the chain of causation that affected his claim for
damages on the original injury to an extent. As a result, the defendants
were not liable in damages for his second injury.
Acts of nature –

Intervening acts of nature will not generally break the chain of causation
except in cases where they are unforeseeable and separate from the initial
negligent act or omission.

Carslogie Steamship Co Ltd v. Royal Norwegian Government (1952) AC

292 (HL)
Concerning: novus actus interveniens; act of nature
Facts: The claimant’s ship was damaged following a collision. After
temporary repairs, the ship then set off on a voyage to a port in the United
States where permanent repairs could be carried out. During her voyage
across the Atlantic the ship sustained further heavy damage during a
storm.
Legal principle: The defendants were not liable for the damage caused by
the storm as it was unforeseeable and quite separate.

REMOTENESS OF DAMAGE

The consequence of a wrongful act may be endless or there may be

consequences of consequences. The question arises if the defendant can be
liable for all such endless consequences?

In jure non remota causa sed proxima spectator – in law the proximate, and
not the remote, cause is to be regarded.
The plaintiff here has to prove that the injury caused to them is the direct
consequence of the defendant’s negligent act.

The defendant here will only be liable for only those consequences which
are the direct consequences of their negligence.

Lisbosch Dredger V .S S. Edison (1939)

◦ Lord Wright has said: “The law cannot take account of everything that
follows a wrongful act ,it regards a subsequent matters as outside the
subsequent matter as outside the scope of its selection because of it were
infinite for the law to judge the causes of causes, or consequences of
consequences. In the varied web of affairs, the law must abstract some
consequences as relevant not perhaps on the ground of pure logic but
simply for practical reasons.”
(The law cannot survey everything that follows a negligent act, here the
subsequent matters fall outside the scrutiny of the law as the judgement of
the law is finite and it is not possible to hold in account all the
consequences of consequences due to their gradual irrelevance and varied
degree of deviance from the situation. Here it is necessary to set aside some
consequences as relevant to adjudicate on due to practical reasons which
hold more weight in contrast to pure logic)
In problem of remoteness one has to establish: ◦ Whether the relation, the
defendant’s breach of duty and the plaintiff’s injury is one of cause and
effect ------- if Yes then defendant is liable

Direct and immediate consequence

It is very clear that intended consequences are not remote as they are direct
consequences and have a causal connection between the act and
consequences forming a clear link between the cause and effect.
A person is presumed to intend the natural and probable consequences of
his act.

Scott vs. Shepherd (1773)

A person cannot stop or alter the consequences at their pleasure or do the
same to outcome of the definite objects they planned out, they are
obligated to abide by these to the end.
Too remote consequences
 plaintiff’s own act
 act of person bound by the law to decide
 act of independent third party

There are two tests to determine whether the damage is remote or not:

1. Test of reasonable foresight

According to this test, if the consequences of a wrongful act could
have been foreseen, they are not too remote and vice versa.

Rigby vs. Hewit (1850)

◦ The liability of the defendant is only for those consequences which

could have been foreseen by a reasonable man placed in the
circumstances of the wrongdoer. According to this test, if X commits
a wrong, X will be liable only for those consequences which X could
foresee, for whatever could not have been foreseen is too remote a
consequence of X’s wrongful act.

2. Test of directness
The test of reasonable foresight was rejected by the test of directness
was considered to be more appropriate by the Court of appeal in Re
Polemis and Furness, Withy & Co. Ltd (1921).

basically in jure non remota causa sed proxima spectator but if you
can anticipate some amount of damage then you’re liable.

According to the Test of directness, a person is liable for all the direct
consequence of his wrongful act, whether he could have foreseen
them or not; because consequences which directly follow a wrongful
act are not too remote. The only question which has to be looked into
is whether the defendant's case wrongful or not, i.e. whether he could
foresee some damage or not? If the answer is in affirmative, then he is
liable not just for those consequences but for all the direct
consequences of his wrongful act.

◦ Smith Vs. London and South Western Railway Co. (1870) In this
case servant of the London Railway company after cutting hedge and
grass negligently left it near the railway line. It was a dry weather
and spark from the railway engine set fire to the heap of grass. Due to
the high wind the fire was carried to the plaintiff’s cottage which was
burnt. The court held the defendant company was liable for the
negligence of their servants though they could not have the foreseen
the loss to the cottage of the plaintiff.

Re Polemis and Furness, Withy & Co Ltd [1921] 3 KB 560 (CA)

Facts: The charterers of a ship filled the hold with a cargo including a
number of containers of petrol. These filled the hold with petrol
vapour which ignited when a heavy plank was dropped into the hold
by a labour whilst the ship was unloading, destroying the ship.

Legal principle: The Court of Appeal held that the defendant was
liable. Although the fire itself may not have been foreseeable, it was
held that the defendant would nevertheless be liable for all direct
consequences of his actions. The court reasoned that if the act would
or might probably cause damage, the fact that the damage it in fact
caused is not the exact kind of damage one would expect is
immaterial, so long as the damage is in fact directly traceable to the
negligent act and not due to the operation of independent causes.

The test in Re Polemis does not limit liability for the direct
consequences of a negligent act, however severe or unforeseeable
those consequences may be. It has been criticised for its unfairness in
that respect.

◦ Overseas Tankship (UK) Ltd v. Morts Dock and Engineering Co Ltd

(The Wagon Mound) (No 1) [1961] AC 388 (PC)

◦ Concerning: remoteness of damage

◦ Facts: The defendants negligently leaked a quantity of bunkering oil

into Sydney Harbour from a tanker. This oil drifted into the
claimant’s wharf where it mixed with assorted debris. Welding was
taking place in the wharf. The claimants sought (and received)
assurances that it was safe for them to continue welding. However,
sparks from the welding ignited the oily wadding which caused fire
to spread to two ships, damaging them. The wharf was also
damaged.

◦ Legal principle: At first instance, the trial judge applied the

principles from Re Polemis, finding that the defendants were liable
for the fire damage, since the damage to the wharf was a foreseeable
consequence of the leakage.

◦ On appeal, the Privy Council reversed the decision, holding that the
correct test for remoteness is reasonable foreseeability of the kind or
type of damage in fact suffered by the claimant.
◦ Court observed: ◦ “Even a fool may be wise after the event. But it is
not sight of a fool, it is the foresight of a reasonable man which alone
can determine responsibility.

The tests in Re Polemis and The Wagon Mound (No 1) cannot be

reconciled. Re Polemis was heard by the Court of Appeal and has
never been overruled, since The Wagon Mound (No 1) was heard by
the Privy Council.
As such both cases have remained good law. However, TWM (No 1)
is accepted by the courts now including the Court of Appeal as the
relevant test to follow in questions of remoteness.

Indian courts have accepted the test of reasonable foreseeability as

laid down.

The ‘egg shell skull’ rule

Regardless of the injury being foreseeable or not, the severity of the

injury holds prominent weight and the defendant will remain liable
for all the losses that have occurred.

Smith v. Leech Brain & Co Ltd [1962] 2 QB 405 (CA)

◦ Concerning: remoteness; the ‘egg-shell skull’ rule

◦ Facts: The claimant was splashed by molten metal as a result of his
employer’s negligence and suffered a burn to his lip. This burn
triggered cancer, from which the claimant died. The claimant’s lip
was pre-malignant at the time of the incident.

◦ Legal principle: Some form of harm from the burn was foreseeable
although the particular type of harm in the particular circumstances
was not. However, despite the fact that death from cancer was not a
foreseeable consequence of the burn, the employers remained liable
in negligence for the full extent of the damage
DEFENCES

Contributory Negligence –

A doctrine of common law states that if a person was injured in part

due to their negligence then they would not be entitled to collect
damages against the defendant. By this doctrine, a badly injured
claimant would have difficulty winning in court against a very
negligent defendant.

A car driver or passenger who does not wear a seat belt.

If the harm is suffered by the plaintiff not solely due to the negligence
of the defendant but also due to the negligence of the plaintiff . Cases
are not rare where accident take place by negligence of the persons
suffering the injury and some other person.

At common law it is complete defence if the defendant proves that

the plaintiff was guilty of contributory negligence.

To establish contributory negligence defendant must prove

a) That the injury of which the plaintiff complains results from the
particular risk to which the negligence of the plaintiff exposed of him.
b) That the negligence of the plaintiff contributed to his injury
c) That there was fault or negligence on the part of the plaintiff
Jones V Livox Quires Ltd ( 1995) ◦ The claimant worked in the
defendant’s quarry. One lunch break he hitched a lift back to the
canteen by standing on the tow bar of a traxcavator. The driver of the
traxcavator was unaware that the claimant had jumped on the back
and it was against company rules to stand on the back of the
traxcavators. Unfortunately, a dumper truck, driven recklessly by
another employee, crashed into the back of the traxcavator crushing
the claimant’s legs. Consequently, the claimant had to have his legs
amputated. ◦ Held: ◦ The defendant was liable, but the claimant was
held to be 1/5 to blame under the Law Reform (Contributory
Negligence) Act 1945. He had acted against orders and exposed
himself to danger.

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 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.

◦ Deven V Mann (1842) The plaintiff negligently left his donkey

fettered by its forefeet on a highway. The defendant drove his wagon
and horses at high speed against it and killed it. Had he used proper
care the defendant could have avoided the accident, but he was
driving too fast . It was held that notwithstanding his own negligence
the plaintiff could recover damage because the defendant could still
have avoided the consequences of that negligence. The contributory
conduct must constitute what the law regards as the substantial
factor in producing the harm.

Plaintiff’s Negligence:
 Clayards V Detnick
◦ In this case plaintiff had to take his horse out of stable through a
narrow lane to a main road. The defendant cut a trench in that lane
and heaped gravel on one side of it. One day when plaintiff was
taking his horse through the lane, it slipped from the gravel and fell
into the trench and was killed, it was held that the plaintiff acted as a
man of ordinary prudence the plaintiff was not bound to abstain
from pursuing his livelihood because there was some danger.

Doctrine of Alternative danger :

◦ There may be certain circumstances when the plaintiff is justified in

taking some risk where some dangerous situation has been created
by the defendant.

◦ The plaintiff might become nervous by a dangerous situation

created by the defendant and to save his person or property, he may
take an alternative risk.

◦ If in doing so, the plaintiff suffered any damage, he will be entitled

to recover from the defendant.

Jones v. Boyce (1816)

The plaintiff was a passenger of defendant’s coach. The coach was
driven so negligently that the plaintiff jumped off the bus fearing an
accident and broke his leg. It was held that the plaintiff would be
entitled to recover.

Shyam Sunder v. State of Rajasthan (1974)

Due to the negligence on the part of the defendants, a truck
belonging to them caught fire. One of the occupants, Navneetlal,
jumped out to save himself from the fire, be struck against a stone
lying by the roadside and died. The defendants were held liable.
Plaintiff ’s Negligence a bar to his action

Plaintiff ’s negligence would bar his remedy in two ways:

a) Where the negligence of the plaintiff is subsequent and separate
from it.
b) Where the defendant could not avoid the accident

Dowell V General Navigation Company (1842)

◦ The plaintiff sailing ship withdrew the light and collided with the
ship of the defendant. It was held that the defendant’s steamer could
not stop when the ship was seen because of the short distance so the
plaintiff was not entitled to any damage.

Volenti non fit injuria (To a willing person, injury is not done)
◦ That one who knowingly and voluntarily consents to and takes on a
risk.
◦ ‘To one who volunteers, no harm is done’
◦ By participating in a potentially dangerous sport, such as motor
racing or skiing can not ask for compensation for the damage or
injury resulting from it.

The requirement of the defence are thus:

◦ A voluntary agreement
◦ Made in full knowledge of the nature and extent of the risk

Nettleship V Weston [1971] 3 WLR 370 Lord Denning :

◦ "Knowledge of the risk of injury is not enough. Nothing will suffice
short of an agreement to waive any claim for negligence. The plaintiff
must agree expressly or impliedly to waive any claim for any injury
that may befall him due to the lack of reasonable care by the
defendant: or more accurately due to the failure by the defendant to
measure up to the duty of care which the law requires of him".

Consent : ◦ In order to maintain the defence, the defendant must

show that the plaintiff has consented to the risk and has agreed to
absolve the defendant from the liability of the consequences. Consent
in this sense means the agreement of the plaintiff, express or implied
to exempt the defendant from the duty of care which he would
otherwise have been required by the law to take.

Voluntary act: ◦ Not only must the plaintiff consent to the risk but
also must take the risk voluntarily and freely. For the purpose of the
rule a man can not said to be truly willing unless he is in a position to
choose freely, and freedom of choice predicates not only a full
knowledge of the circumstances on which the exercise of choice is
conditioned so that he may be able to choose wisely but the absence
from his mind of any felling of constraint so that nothing shall
interfere with the freedom of his will.

Burden of proof: The burden of proof of negligence rests on the

plaintiff

Ex turpi causa non oritur actio: A plaintiff will be unable to pursue

legal remedy if it arises in connection with his own illegal act.

Like if you suffered an accident in a stolen car due to someone else’s

negligence, you cannot sue by reason of your own illegality since you
broke an equitable duty or conducted yourself in negligent or
intentional misconduct.

◦ Rescue cases (Volenti non fit injuria)

The defence of Volenti non fit injuria is inapplicable in the rescue
cases

◦ If the plaintiff voluntarily takes a risk to rescue somebody from the

danger created by the wrongful act of the defendant .
◦ He will have right to bring an action for damages against the
defendant.
◦ The Doctrine of assumption of risk does not apply where the
plaintiff has under an emergency caused by the defendant’s wrongful
misconduct, consciously and deliberatively faced a risk, even death
to rescue another from imminent danger of personal injury.

◦ Haynes V Harwood (1995) 1 KB 146

◦ In this case the defendant’s servant had left a horse van unattended
in a crowded street.
◦ A boy threw a stone on the horses, and they bolted and started
running without the driver the causing danger to woman and
children on the road.
◦ The plaintiff a police constable, who was on duty inside a nearby
police station saw that the persons were in grave danger, ran out and
stopped the horses and in doing so he was seriously injured.
◦ He brought an action against the defendant for damages.
◦ The defendant contended that since the plaintiff had voluntarily
taken the risk the maxim Volenti non fit injuria will apply. And he
will be not entitled to damages.
◦ But the court held that in Rescue cases the maxim was not
applicable, and the defendant were liable.