Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
FINAL DRAFT
TOPIC- NEGLIGENCE
INDEX
1 INTRODUCTION4
2 Definition and Essentials of Negligence7
3 Duty of care to the plaintiff.. 8
4 Breach of duty
.. 9
5 APPLICATION
.10
6 DAMAGES
12
15
.. 19
INTRODUCTION
In the modern law of tort, the word negligence has two meanings. Firstly, it
indicates the state of mind of a party in doing act and secondly, it means a
conduct which the law deems wrongful. Originally the word was generally used
in its subjective sense as a particular mode of doing another wrongful act. In
this sense negligence means inadvertence or carelessness. It means
blameworthy inadvertence in the consequences of conduct insofar as a
reasonable man would have adverted to them.
Through civil litigation, if an injured person proves that another person acted
negligently to cause his injury, he can recover damages to compensate for his
harm. Proving a case for negligence can potentially entitle the injured plaintiff
to compensation for harm to their body, property, mental well-being, financial
status, or intimate relationships. However, because negligence cases are very
fact-specific, this general definition does not fully explain the concept of when
the law will require one person to compensate another for losses caused by
accidental injury. Further, the law of negligence at common law is only one
aspect of the law of liability. Although resulting damages must be proven in
order to recover compensation in a negligence action, the nature and extent of
those damages are not the primary focus of negligence cases. Negligence suits
have historically been analysed in stages, called elements, similar to the analysis
of crimes. An important concept related to elements is that if a plaintiff fails to
prove any one element of his claim, he loses on the entire tort claim.
For example, let's assume that a particular tort has five elements. Each element
must be proven. If the plaintiff proves only four of the five elements, the
plaintiff has not succeeded in making out his claim.
The defendant was held liable. Tindal, C.J. while rejecting the argument of the
defendant that he had acted bona fide to the best of his judgment and that should
be accepted, said thus:Instead, therefore, of saying that the liability for
negligence should be co-existencewith the judgment of each individual, which
would be as variable as the length of the foot of each individual, we ought rather
to adhere to the rule which requires in all cases a regard to caution such as a
man of ordinary prudence would observe.
The existence of a duty of care is, of course, essential to a cause of action for
negligence, but for contributory negligence it is quite unnecessary that the
claimant should owe a duty of the defendant. All that is required is that the
claimant should have failed to take reasonable care for his own safety. One
sometimes comes across references to the claimant owing himself a duty to take
care of his safety, but strictly speaking this, like the duty to mitigate, is a
contradiction in terms.
Breach of duty
The defendant must not only owe the claimant a duty of care, he must be in
breach of it. The test for deciding whether there has been a breach of duty is laid
down in the oft-cited dictum of Alderson B. in Blyth v. Birmingham
Waterworks Co.
The fact of economic loss was recognized in Hedley Byrne and Co. Ltd. v.
Heller and Partners, wherein a banker negligently gave a reference to one who
acted thereon and suffered damage; it was held that the duty is plain and the
damage was not too remote. In other words it was held by that a duty of care in
making statements was a legal possibility. Emotional distress has been
recognized as an actionable tort. A claimant who suffered only emotional
distress and no pecuniary loss would not recover for negligence.
However,courts have recently allowed recovery for a plaintiff to recover for
purely emotional distress under certain circumstances.
APPLICATION
The doctrine of negligence originally applied to public professionals, such as
innkeepers, blacksmiths, and surgeons, but it was probably prompted by
industrialization and increased occupational accidents. At first, liability was
harsh, but then it was softened to encourage industrial growth. The later trend is
toward greater liability.
The doctrine of negligence does not require the elimination of all risk from a
persons conductonly all unreasonable risk, which is measured by the
seriousness of possible consequences. Thus, a higher standard applies to
nitroglycerin manufacturers than to those making kitchen matches. In certain
critical fieldse.g., the milk industrythe law imposes liability for any
mistakes, even when the strictest precautions are taken, a policy known as strict
liability.
Allowances may be made for physical (but not mental) handicaps, such as
blindness, but the law demands that handicapped persons avoid needlessly
placing themselves in situations in which their inability may cause harm. Other
than distinguishing between children and adults, the doctrine of negligence does
not usually consider factors of age or experience.
10
11
DAMAGES
Damages place a monetary value on the harm done, following the principle
of restitutio in integrum (Latin for "restoration to the original condition"). Thus,
for most purposes connected with the quantification of damages, the degree
of culpability in the breach of the duty of care is irrelevant. Once the breach of
the duty is established, the only requirement is to compensate the victim.
One of the main tests that is posed when deliberating whether a claimant is
entitled to compensation for a tort, is the "reasonable person". The test is selfexplanatory: would a reasonable person (as determined by a judge or jury) be
damaged by the breach of duty. Simple as the "reasonable person" test sounds, it
is very complicated. It is a risky test because it involves the opinion of either the
judge or the jury that can be based on limited facts. However, as vague as the
"reasonable person" test seems, it is extremely important in deciding whether or
not a plaintiff is entitled to compensation for a negligence tort.
Damages are compensatory in nature. Compensatory damages addresses a
plaintiff/claimant's losses (in cases involving physical or mental injury the
amount awarded also compensates for pain and suffering). The award should
make the plaintiff whole, sufficient to put the plaintiff back in the position he or
she was before Defendant's negligent act. Anything more would unlawfully
permit a plaintiff to profit from the tort.
Types of damage
General damages - these are damages that are not quantified in monetary
terms (e.g., there's no invoice or receipt as there would be to prove special
damages). A general damage example is an amount for the pain and
suffering one experiences from a car collision. Lastly, where the plaintiff
proves only minimal loss or damage, or the court or jury is unable to
quantify the losses, the court or jury may award nominal damages.
12
13
14
Composite Negligence
When the negligence of two or more persons results in the same damage, there
is said to be Composite Negligence, and the persons responsible for causing
such damage are known as Composite Tortfeasors. In England, such tortfeasors
could be classified into two categories: -joint tortfeasors and independent
tortfeasors, and there were different rules governing the liability of these two
categories of tortfeasors. The liability of these two categories of persons has
been made somewhat similar through legislation, i.e. the Law Reform (Married
Women andTortfeasors) Act, 1935 and Civil Liability (Contribution) Act, 1978.
The courts in India have not followed the statutory law of England wherever it
was against the principles of equity, justice and good conscience. The
distinction between joint tortfeasors and independent tortfeasors is not of much
relevance in India. The term composite negligence has been used in India to
cover both kinds of cases of independent tortfeasors and joint tortfeasors.
Sometimes, the courts have been unmindful of the fact that the terms joint
tortfeasors and independent tortfeasors have different connotations, the term
Composite or joint tortfeasors has been used to connote a situation, which is in
fact one of independent tortfeasors.
Nature of liability in composite negligence:The liability of the tortfeasors in composite negligence cases is joint and
several. No one is allowed to say that there should be apportionment of damages
and his liability should be on the basis of his fault. The judgment against the
composite tortfeasors is for a single sum without any apportionment, and that it
is the discretion of the plaintiff to enforce the whole of his claim against any one
of the defendants. However, the defendant who has paid more than his share
may claim contribution from the other defendants. A case worth mentioning at
this point is Hira Devi v. Bhaba Kant Das.
15
The facts were that due to negligence of the driver of a State Transport bus and
the driver of a car, there was an accident resulting in the death of a person
travelling in another car andinjury to some other persons in that car. The
tribunal made apportionment of damages as between the owners of the bus and
the car. The Guwahati High Court, however, held that the tribunal was in error
in apportionment the damages between the two tortfeasors. The court stated that
this is a case of joint tortfeasors and that the liability of the owner of the car has
not been established. The claimants were held entitled to recover the entire
amount of the claim from the owner of the bus i.e., State of Assam. The court
also observed that this does not affect the right of the State to claim contribution
from the other tortfeasor, namely the owner of the bus
.
In 1963, in a Single Bench decision of the Punjab and Haryana High
Court i.e., The State of Punjab v. Phool Kumari
, it had been held that there could be apportionment of liability between various
tortfeasors, but that decision has been dissented in many subsequent cases.The
other case is of United India Fire and General Insurance Co. v. Sagar
Kanwar,where it was held by the Rajasthan High Court that there could be no
apportionment of damages in case of composite tortfeasors. It is no concern of
the tribunal to apportion the damages between them. The court observed that in
such a case the claimants are entitled to damages jointly and severally from
negligent respondents.
Similarly, in SatbirSingh v. Balwant Singh,
there was a collision between a motor cycle and a truck, resulting in the death of
pillion rider and injuries to the motor cyclist. The court found negligence of the
motor cyclist to the extent of two-third and that of truck driver one-third. There
was no negligence of the pillion rider. Thus, there was composite negligence of
the truck driver and the motor cyclist against the pillion rider. The court held
that the widow of the pillion rider was entitled to claim the whole amount from
the truck owner and his insurance company. Thereafter, the truck owner and the
insurance company could claim the amount from the motorcyclist to the extent
of his liability.
16
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. It is ones failure to avoid getting hurt by the
defendant or it is the fault of the claimant in the very occurrence of the accident.
When the negligence of two or more persons results in the same damage, there
is said to be Composite Negligence, and the persons responsible for causing
such damage are known as Composite Tortfeasors. The scope of the (English)
Law Reform Act, 1945 is wide, but not unlimited, for there were a number of
torts where at common law the defendant could not escape liability by showing
contributory negligence on the part of the claimant and this is carried over into
the statutory regime.
The position brought about by the Law Reform Act in England is very just
andequitable. The liability of composite negligence has been made somewhat
similar through legislations, i.e., the Law Reform Act, 1935 and Civil Liability
Act, 1978. The existence of a duty of care is, of course, essential to a cause of
action for negligence, but for contributory negligence it is quite unnecessary
that the claimant should owe a duty of the defendant. In cases of contributory
17
18
BIBLIOGRAPHY
1. Basu, D. D., the Law of Torts, Kamal Law House, Kolkata, 2010.
2. Deakin, S., A. Johnston and B. Markesins, Markesinis and Deakins Tort Law,
Oxford
University Press Inc., New York, 2003.
3. Pillai, P.S.A., Law of Tort, Eastern Book Company Publishing (P) Ltd.,
Lucknow, 2004