Negligence – an introduction

‘dual meaning’ – for negligence

1. Mode of committing certain other torts – like

committing trespass, nuisance or defamation etc.,
2. Conduct creating risk to others in a society (where it
is treated as a specific tort)

2
Proposition of law – essentials

1. The defendant owed a ‘duty of care’ to the plaintiff;

2. The defendant breached that duty; and
3. The plaintiff suffered ‘damage’ as a consequence
thereof.

3
‘duty being owed’
• It should legal (than mere moral or social) duty
• No general prescription possible – one has to
approach it from case to case basis
• ‘the categories of negligence are never closed’ – Lord
Macmillian
• Lord Atkin’s proposition (in Donoghue v Stevenson)
– “you must take reasonable care to avoid acts or omissions
which you can reasonably foresee would be likely to injure
your neighbour”
– “(neighbors are) persons 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”

4
Donoghue v stevenson, (1932) AC 562
• A friend purchased a bottle of ginger beer from a
retailer for the Appellant (plaintiff) a lady friend
• Some of the contents of the bottle (which was
opaque) were consumed – then it was realized that, a
body of decomposed snail was present in the contents
• The Appellant alleged that she was seriously suffered
in her health due to the consumption of contaminated
drink
• Held that the manufacturer of the beer is liable

5
“ manufacturer of products, which he sells in such a
form as to show that, he intends them to reach the
ultimate consumer in the form in which they left him
with no reasonable possibility of intermediate
examination and with the knowledge that the absence
of reasonable care in the preparation or putting up of
the products will result in an injury to the consumer’s
life or property, owes a duty to the consumer to take
that reasonable care..”
-- Lord Atkin

6
 AERA OF
REASONABLE FORESIGHT

REASONABLE
REASONABLE
MAN
MAN

7
 Home Office v. Dorset Yacht Co. Ltd.,
(1970) 2 All ER 94(HL)

• Seven under-trails escaped from the Borstal who were

under the custody of three officials of the Home dept.
due to their negligence. These officials instead of being
vigilant were sleeping on duty in night when the under-
trials escaped and while sailing on a boat collided with
another boat thereby damaging that boat. The claimant
sued the Home Dept. for negligence.

8
• The Home Dept. in its defence pleaded that the
damage to the claimant’s boat was due to escaped
under-trial’s negligence for which they are not
responsible. But rejecting the plea the House of Lords
held that the under-trials could escape due to
negligence of the officials of the Borstal as they were
sleeping on duty instead of keeping a watch on the
inmates. Therefore, they were under a duty to take care
that the under-trials do not escape and cause damage to
anyone.

9
Arun Kumar v. Union of India (2001) Del. 140
•Where the hand of a three years child was caught and
badly chewed by a tigress in a zoo. Consequently, the
hand of the child was amputated.
•It was held that the zoo authorities failed to have due
care. It was their absolute liability to keep the zoo in a
complete safe situation.
•The Delhi High Court awarded a compensation of Rs. 5
lakh.

10
• The cause of action for negligence arises only when
damage occurs. The claimant has to satisfy the court
on evidence that:
1. Existence of duty to take care;
2. Failure to maintain that standard of care;
3. Damage suffered on account of breach of duty.

11
• Negligence as a tort is an actionable wrong which
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.
-Heaven v. Pender, (1883) 11 QBD 503

12
Barness v. Hampshire County Council
(1969) 3 All ER
• A five year boy was allowed to go home all alone a
few minutes before the school hours whereas the rules
required that the children were to be handed over to
their parent after the school hours. The boy was
injured in a road accident.
• The House of Lords held the school authorities liable
for they owed a duty of care to ensure the safety of
their child students.

13
• In Jay Laxmi Salt works (P) Ltd. V. State of Gujarat,
(1994) 4 SCC 1., the Apex Court observed that the
jurisprudential concept of negligence changes with
the changes in socio-economic & political
conditions, therefore, a freedom of yesterday may
become a duty in modern time.
• For ex., it is now well settled that a blood-doner
(who wants to save the life of some other person by
donating his blood) owes a duty to get himself
thoroughly examined that he is not a HIV+ person.

14
• “The position has now been reached that in order to
establish that a duty of care arises in a particular
situation, it is not necessary to bring facts of that
situation within those of previous situations in which a
duty of care has been held to exist. Rather the question
has to be approached in two stages.
• Firstly, one has to ask whether, as between the alleged
wrongdoer and the person who has suffered damage
there is a sufficient relationship of proximity or
neighborhood such that, in the reasonable
contemplation of the former, carelessness on his part
may be likely to cause damage to the latter- in which
case a prima facie duty of care arises.
15
• Secondly, if the first question is answered
affirmatively, it is necessary to consider whether there
are any considerations which ought to negative, or to
reduce or limit the scope of the duty or the class of
person to whom it is owed or the damages to which a
breach of it may give rise.”
- Lord Wilberforce in Anns v. Merton London
Borough, (1978 AC 728)

16
Proximate or Foreseeable of damage

• The duty to take care must be in respect of the

particular conduct complained of. Hence, the liability
of the defendant for negligence extends only to the
injury or damage which is proximate and foreseeable
and is not remote.

17
Bourhill v. Young, (1943) AC 92

• The plaintiff, a fisher woman after alighting from a

tramcar was taking out her fish basket from the
driver’s cabin. While she was doing so, a speeding
motor cyclist passed on from the other side of the
tramcar and collided with a motor car and was
killed. The claimant did not see the dead motor-
cyclist nor the accident.

18
• She only heard a loud sound of collision and when
she approached the accident site, saw the blood
spread on the road. She complained of nervous
shock and one month later delivered a still born
child.
• It was held that the motor cyclist did not owe any
duty of care towards the plaintiff and therefore, his
executors were not liable for the injury caused to the
claimant.

19
Ryan v. Young, (1938) 1 All ER 522

• The driver of lorry who was otherwise healthy

suddenly died due to heart attack while driving the
vehicle, with the result it went off the road and dashed
against a tree thereby causing serious injuries to some
of the passengers travelling in it. The master of the
lorry driver was held not liable as this was a sheer
case of inevitable accident which could not be averted
despite all care and precautions.

20
Standard of Care

• The duty of care expected from a defendant is that of

a reasonable or prudent man’s conduct in the
circumstances of the case. There cannot be
barometric assessment of the ‘reasonableness’ or
prudence which a person is expected to exercise in a
particular situation. It is bound to vary according to
the circumstances and facts of the case as also the
mental level of the person concerned.

21
• According to Lord Cooper, “it will not do to equate
the reasonable man to the young man in hurry. The
reasonable man is cool and remembers to take
precaution for his own safety and the safety of others
even in an emergency.”
-Ghannon v. Glassing Corporation, (1950)

22
Shivkar Motasingh v. Ram Naresh
AIR 1978 Guj. 115.
• The defendants who were school teachers of a
Municipal School took the picnic party of about 60
young boys at the river bank of Sabarmati. After the
boys finished their meals jointly they went around the
river and the teachers sat together for their meals. In
the meantime a boy of 12 years of age was drowned
and killed and the boys were crying for help. When
the teachers rushed to the spot they found the dead
body of the boy. The parent of the deceased boy sued
the school for negligence.

23
• The court has held the school liable for the negligence
of its teachers in not keeping a proper supervision over
the boys during the picnic. The court noted that the
teachers had not acted as a reasonable and prudent
person would act under those circumstances.
• The school obviously had a duty of care towards the
young boys aging between 12 to 15 years as they need
to be kept under surveillance and proper supervision.
The school authorities tried to pass on the liability on
the teachers individually but the court imposed
vicarious liability on the school.

24
The degree of care

1. According to the facts and circumstances of the case

2. Depending on the skill of the person in his
profession.
• The AP High Court in P. Narsimha Rao v.
Gundaverappa, AIR 1990 AP 207, observed, “law
imposes a duty on everyone to conform to certain
standard of conduct for the protection of others. In
the case of persons who undertake work requiring
special skill they must not only exercise reasonable
care but measure up to standard of proficiency that
can be expected from person of such profession…..

25
• …Failure to conform to the required standard of care
resulting in material injury is actionable negligence if
there is proximity between the defendant’s conduct
and the resultant injury. A surgeon or anesthetist will
be judged by the standard of an average practitioner
of class to which he belongs or holds himself out to
belong. In the case of specialists a higher degree of
care is called for.”

26
Breach of Duty
• The plaintiff is not only required to show that the
defendant owed a duty of care towards him but
having done so, he has also to prove that the
defendant committed a breach of such duty.
• The question whether the defendant’s conduct
amounts to negligence or breach of duty to take care
may be decided with reference to the principle laid
down in Blyth v. Birmingham Water Works Co. which
says, “negligence is the omission to do something
which a reasonable man, guided upon those
considerations which ordinarily regulate the conduct
of human affairs, would do, or doing something
which a prudent & reasonable man would not do.”
27
• In Phillips v. William Whiteley Ltd., (1938) 1 All ER
566., it was held that a goldsmith piercing ears is not
bound to take the same precaution as a surgeon would
take, but he is certainly expected to take precautions as
reasonably be expected of a goldsmith.
• In Sarswati Parabhai v. Grid Corporation of Orissa,
AIR 2000 Orissa 13, an electric pole with live wire got
uprooted due to heavy rains and storm thereby causing
death of the plaintiff’s husband due to electrocution. The
Court has held the defendant Corporation liable for
breach of duty to take care so that the safety of public is
not endangered due to live wire lying on the road or
public place.

28
Negligence – the reasonable man
Preface

• “ Negligence is the omission to do something which a

reasonable man, guided upon those considerations
which ordinarily regulate the conduct of human
affairs, would do or doing something which a prudent
and reasonable man would not do”
- Alderson in Blythe v Birmingham Waterworks Co., (1856) II
Exch. 781 at p. 784
• The legal standard is not that of the defendant himself
but that of a “ man of ordinary prudence” a man
“ using ordinary care and skill” a “ hypothetical” man
(reasonable man)

30
Infants and other categories of persons

• Infants must be treated as categories apart

• To be held not guilty of contributory negligence
• What degree of care for his/her own safety can an
infant of the particular age reasonably be expected to
take?

31
Persons with infirmity

• Daly v Liverpool Corporation, (1939) 2 All. E. R.

142,
– It was held that in deciding whether a sixty-seven year old
woman was guilty of contributory negligence in crossing road,
one had to consider a woman of her age, not a hypothetical
pedestrian;
• But, it is generally stated that – defendant’s physical
characteristics, but not his mental powers, must be
considered
– “when a man has a distinct defect of such a nature that all can’t
recognize it as making certain precautions impossible, he will
not be held answerable for not taking them” – Homes,
Common Law, 109
32
Intelligence

• The defendant’s actions must conform to certain

criteria expected of a person of normal intelligence in
a given situation
• Probably, a man whose intelligence is superior or
whose reactions are quicker than average is not liable
to use those above-average qualities

33
Knowledge

• A man is deemed to know those things which adults

from their experience are expected to know
• Knowledge of facts and circumstances surrounding
him must be had by the defendant
• Even if a reasonable man himself could not be
expected to know, he may be required to get and
follow expert advise
– The land lord of flats must therefore consult a specialist
engineer about the safety of his lift
• Actual knowledge of the circumstances on the part of
the defendant increases the standard of care imposed

34
Skill

• Held that a person’s conduct must conform to the

standard of persons normal intelligence
– A person holding himself out to public as ‘doctor’ shall
possess all the necessary skill of a doctor
• Philips v William Whitely Ltd., (1938) I All E. R. 566
– Where a plaintiff had her ears pierced by a jeweler in order to
ware ear-rings and subsequently contracted a disease that
might have been avoided had the work been done with normal
medial skill, the jeweler was required only to show the skill of
a jeweler doing such work, not that of a doctor

35
The circumstances of the plaintiff

• Actual knowledge on the part of the defendant

– Woman known to be pregnant, or a workman with one eye
etc.,
• Haley v London Electricity Board, (1965) A.C. 778,
– Held that a Body conducting operations on a city highway
should foresee that blind persons would walk along the
pavement, and that it owes a duty to take those precautions
reasonably necessary to protect them from harm

36
General practice of the community

• Defendant will be supported by his claim – where he

shows that, he conformed to the common practice of
those engaged in the activity in question
– A specialist who failed to diagnose the complaint of the
plaintiff was held not to have been negligent when he used the
normal methods of British medical specialists, although the
use of an instrument usually employed in the US might have
resulted in a correct diagnosis

37
Negligence – evidence and procedure
Question of ‘law’ and ‘fact’

• Formerly, (unlike today) most of the negligence cases

were tried by a judge sitting with a jury
– Matters of ‘law’ were for the judge and matters of ‘fact’ were
for the jury
• But now both these questions are assessed and
answered by the judge alone

39
Matters of ‘law’

• All questions of duty –

– Was the duty owed to the plaintiff? Was it with hazard and the
like?
• The Standard of care -
– What is the standard, and whether there is any evidence of
failure to conform to it?
• The principles to be applied in determining whether
the damage was too remote and whether there was
any evidence of such damage
• Whether any recognized heads of damage have not
been taken into account?

40
Res ipsa loquitur
Historical evolution

• Scott v London and St. Katherine’s Docks Co.,

(1865)
– The plaintiff, a customs officer, while near the door of the
defendant’s warehouse, was injured by some sugar bags falling
on him.
– The judge directed the jury to find a verdict for the defendants
on the ground of lack of evidence of negligence by the
defendants, who called no evidence
– On appeal a new trial was directed

42
• The court justified this direction of a new trail in the
following terms –
– “There must be reasonable evidence of negligence. But where
the thing is shown to be under the management of the
defendant or his servants, and the accident is such as in the
ordinary course of things does not happen if those who have
the management use proper care, it affords reasonable
evidence, in the absence of explanation by the defendants, that
the accident arose from want of care”
• This has since then become “res ipsa loquitur”

43
Rule of evidence not ‘doctrine’

• Lloyde v West Midlands Gas Board, (1971) 2 All ER

1240
– “I doubt whether it is right to describe res ipsa loquitur as a
‘doctrine’. I think that it is no more than exotic, although
convenient, phrase to describe what is in essence no more than
a commonsense approach, not limited by technical rules, to the
assessment of the effect of evidence in certain circumstances.”

44
“…It means that a plaintiff prima facie establishes negligence
where:
1. It is not possible for him to prove precisely what was the
relevant act or omission which set in train the events leading
to the accident; and
2. On the evidence as it stands at the relevant time it is more
likely than not that the effective cause of the accident was
some act or omission of the defendant or of someone for
whom the defendant is responsible, which act or omission
constitutes a failure to take proper care for the plaintiff’s
safety”

45
Essentials

1. The doctrine is dependent on the absence of

explanation;
2. The harm must be of such a kind that it does not
ordinarily happen if proper care is being taken; and
3. The instrumentality causing the accident must be
within the exclusive control of the defendant

46
Some examples

• Alka v Union of India, AIR 1993 Delhi 267

– The plaintiff, girl aged 6 lost her two fingers when she inserted
her hand into the belt of an unattended pump-set which was
installed in Shakti Nagar, to ensure water supply to the
residents (by the defendants);
– The pump motor was running on electric power, within the
reach of children and was without any attendants;
– Presumption of negligence on the part of defendants was
raised and were held liable to pay compensation of
Rs.1,50,000

47
• Mrs. Aparna Dutta v Apollo Hospital Enterprises
Ltd., AIR 2000 Mad. 340
– The plaintiff was subjected to operation (in the defendant’s
hospital) for removal of her uterus, as she was diagnosed to
have cyst in one of her ovaries
– She had to, unfortunately, undergo another surgery to get the
abdominal pack removed which was left by the first surgeon;
– Leaving foreign matter in the body during the operation was
held to be a case of res ipsa loquitur – and plaintiff was
compensated to the extent of Rs.5,80,000

48
• A H Khodwa v State of Maharashtra, 1996 ACJ 505
(SC)
– The plaintiff patient was killed due to negligence of the
doctors
– She underwent sterilization operation after her child birth. A
mop was left inside the abdomen of the patient by the doctor
who performed the operation
– This resulted into medical complication and ultimately proved
fatal
– Presumption of negligence by the doctor performing the
operation was raised and the State (which was running the
hospital) was held liable

49
• Karnataka State Road Transport Corporation v
Krishnan, AIR 1981 Kant. 11
– In an event of road accident – two buses brushed each other in
such a way that it left hands of two passengers traveling in one
of these buses were cut off below their shoulder joint
– Held, the accident itself speaks volumes about the part of
drivers of both the vehicles
– As there was no satisfactory explanation possible, res ipsa
loquitur was applied and defendants were held liable

50
• Shyam Sunder v State of Rajasthan, AIR 1974 SC
890
– The engine of a truck got on fire, wherein the truck had
traveled hardly 4 miles;
– One of the traveler in the truck (Mr. Naveneetlal) jumped out
of the truck to save himself and hit by a stone and died;
– It was found out that the truck took 9 hours to cover a distance
of 70 miles the previous day;
– Res ipsa loquitur was applied in this case

51
Application of maxim denied
• Walkelin v London and South Western Railway
Company, (1886) 12 AC 41
– Man’s dead body was found on the railway track – and there
was evidence that, the driver at the railway did not blow
whistle – hence it was pleaded case for application of res ipsa
loquitur
– The same was denied by the judge
– Lord Halsbury asked – “…that the unfortunate man was
knocked down by a passing train while on the level crossing;
but assuming in the plaintiff’s favour that fact to be
established, is there anything to show, that the train ran over
the man rather than the man ran against the train?”

52
• RSRTC v Sagar Bai, AIR 1999 Raj. 96
– The accident of a bus took place injuring the plaintiff, and was
alleged that, the accident happened due to mechanical failure
of the bus
– But there was no apparent evidence to indicate the negligence
of the bus driver in maintenance etc.,
– Hence, when other inference can be drawn from the
circumstances – the application is not required

53
• K. Shobha v Dr. Raj Kumari Unithan, AIR 1999 Ker.
149
– The plaintiff was treated for non-conception by a gynecologist
(but she had one kid aged 8 years already)
– She was advised test tubing to remove suspected obstruction in
the fallopian tube
– With her consent needful treatment was done, wherein
blowing of air into her fallopian tube through controlled
pressure was performed
– But there was post treatment infection crept in and made her
conception impossible for future
– Held a case for no application of res ipsa loquitur

54
• Syad AKbar v State of Karnataka, AIR 1979 SC 1848
– In a bus accident a boy aged 4 years got killed;
– During the relevant time the boy was attempting to cross the
road from left to right;
– The width of road was just 12 feet and either side of the road
there were deep ditches – which made the driver to swerve the
bus which hit the boy;
– Held that, the facts of width of the road, etc., and also the chil
d’s sudden entry on to the road, do not lead a clear and
unambiguous inference of negligence on the part of the driver,
at the best it could be assumed as drivers misjudgment
(defendant’s were held not liable)

55
The effect of res ipsa loquitur

• the effect is two fold –

1. That the defendant caused the accident, and that he
was negligent; and
2. The cause is known, and only interference of
negligence arises.

56
• McGowan v Stott (1923), per Lord Atkin,
– “…all that one wants to know is whether the facts of the
occurrence do as a matter of fact make it more probable that a
jury may reasonably infer that the damage was caused by want
of care on the part of the defendants than the contrary”

57
Contributory negligence
Introduction
• At common law it was complete defence, if proved
that the plaintiff was guilty of contributory
negligence
• But since, 1945 [after Law Reform (Contributory
Negligence) Act, 1945] the effect is to merely reduce
the damages to the extent to which the plaintiff has
been contributory negligent
• Defendant must prove the following
1. That the injury of which the plaintiff complains results from
that particular risk to which the negligence of the plaintiff
exposed him;
2. That the negligence of the plaintiff contributed to his injury;
3. That there was fault or negligence on the part of the plaintiff.

59
• Butterfield v Forrester, (1807)
– The defendant wrongfully obstructed a highway by putting
pole across it;
– The plaintiff was riding violently in the twilight on the road
collided against the pole and was thrown from his horse and
was injured
– It was held that, the Plaintiff had no cause of action – as he
himself was negligent and could have avoided the mishap

60
• “ one person being in fault will not dispense with
another’s using ordinary care for himself. Two things
must occur to support 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”
– Lord Ellenborough, CJ
• To over come the problem of Plaintiff losing the case
for marginal negligence from his part – the courts
have introduced “ Last Opportunity” or “ Last Chanc
e” rule

61
Rule of ‘last opportunity’

• When two (both plaintiff and defendant) persons are

negligent, one of them who had the later (or last)
opportunity of avoiding the accident by taking
ordinary care should be liable for the loss
• Davis v Mann, (1882)
– Plaintiff fettered the fore-feet of his donkey and left it in a
narrow highway
– The defendant was driving his wagon driven by horses too fast
that it negligently ran over and killed the donkey
– Held the defendant is liable

62
“ a man might justify the driving over goods left on a
public highway or even over a man lying asleep there,
or purposely running against a carriage going on the
wrong side of the road” -- Parke

63
• British Columbia Electric Co. v Loach, (1916) 1 AC
719
– The driver of a wagon (in which the deceased was seated)
negligently brought the wagon on the level crossing of the
defendant’s tramline;
– A tram car belonging to the defendants moved with great
speed (and with defective breaks) collided with the wagon;
– The defendants pleaded the defence of ‘contributory
negligence’, which was not allowed – and defendant’s were
held liable

64
• Law Reform (Contributory Negligence) Act, 1945
– “Where any person suffers damage as the result partly of his
own fault and partly of the fault of any other person or
persons, a claim in respect of that damage shall not be defeated
by reason of the fault of the person suffering the damage, but
the damages recoverable in respect thereof shall be reduced to
such extent as the court thinks just and equitable having regard
to the claimant’s share in the responsibility for damage”
• Sec. 1(1) of the Act

65
• Klaus Mittlebachert v East India Hotels Ltd., AIR
1997 Delhi 201
– The plaintiff, co-pilot in Lufthansa Airlines checked into a
hotel run by defendants and got severely injured while diving
into the swimming pool
– The incident took place on August 13, 1972 and this injury
made him paralyzed for 13 years and death after that;
– The ‘contributory negligence’ was used as defence – but never
allowed – and the plaintiff was compensated.

66
• Agya Kaur V Pepsu Road Transport Corporation,
AIR 1980 P&H 183
– The defence of contributory negligence was denied (not even
considered)
– A rickshaw being driven on the correct side of the road was hit
by a bus coming one the wrong side
– The rickshaw puller was carrying three adults and a child
(overloaded)
– Held that there is no contributory negligence on the part of the
rickshaw puller

67
“Even if the rickshaw was without a passenger or with one or two
passengers, the accident would not have been avoided and,
therefore, the mere fact that the deceased rickshaw puller was
carrying three adults and a child would be no ground to make
any deductions in the award of compensation on the ground of
contributory negligence”

68
Doctrine of ‘alternative danger’

• The plaintiff is justified in taking some risky

decisions – if he is placed in dangerous situations by
the defendant
• The plaintiff might become perplexed by a dangerous
situation created by the defendant and to save his
person, property and some times to some third parties
may take an alternative risk

69
• Jones v Boyce, (1816)
– The Plaintiff was passenger in defendant’s rashly driven
coach;
– With a view to save himself from the danger created by the
defendant, he jumped off the coach and broke his leg;
– Had he not taken that decision nothing would have happened
to the Plaintiff
– Held the plaintiff had acted reasonably under the
circumstances and he was entitled to recover.

70
• Per Lord Ellenborough –
– “to enable the plaintiff to sustain the action, it is not necessary
that he should have been thrown off the coach, it is sufficient if
he was placed by the misconduct of the defendant in such a
situation as obliged him to adopt the alternative of a dangerous
leap or to remain at certain peril; if that position was
occasioned by the default of the defendant, the action may be
supported”

71
• Shyam Sunder v State of Rajasthan, AIR 1974 SC
890
– A truck belonging to Rajasthan state caught fire hardly after it
had covered a distance of only four miles on a particular day
– Mr. Navneetlal, one of the occupants jumped out to save
himself from the fire and was struck against a stone lying by
the road side and died instantaneously
– The defendants were held liable for the same

72