DUTY OF CARE IN THE CASES OF NEGLIGENCE

Submitted by Supervised by

RADHA KRISHAN SUSMITA SINGH

ROLL NO. - 1356

Chanakya National Law University

Patna (India)

2015
 DUTY OF CARE IN THE CASES OF NEGLIGENCE

TABLE OF Contents
S.No PARTICULARS PAGE
1. DECLARATION BY THE CANDIDATE 3

2. LIST OF ACRONYM AND ABBREVIATIONS 4

3. LIST OF CASES 6

4. RESEARCH METHODOLOGY

REVIEW OF LITERATURE
2.1
RESEARCH OBJECTIVES
2.2
RESEARCH QUESTIONS
2.3
RESEARCH METHODS
2.4
HYPOTHESIS
2.5
5. CHAPTERS:

1) INTRODUCTION
2) DUTY OF CARE
CONDITION FOR THE EXISTANCE OF
DUTY
FORCEABILITY & PROXIMITY
JUST & REASONABLE
ECONOMIC LOSS
PHYSICAL DAMAGE
3) CASES RELATED TO NEGLIGENCE OF
HOSPITAL AUTHORITIES
4) DUTY OF CARE
5) CONCLUSION AND SUGGESTION

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6. BIBLIOGRAPHY

DECLARATION BY THE STUDENT

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I hereby declare that the work reported in the BA LL.B (Hons.) Project Report

entitled DUTY OF CARE IN THE CASES OF NEGLIGENCE

submitted at Chanakya National Law University, Patna is an authentic

record of my work carried out under the supervision of Mrs. Sushmita Singh. I

have not submitted this work elsewhere for any other degree or diploma. I am fully

responsible for the contents of my Project Report.

(Signature of the Candidate)

RADHA KRISHAN

Chanakya National Law University, Patna

13/10/2015

List of Acronym and Abbreviation

L.C.J . Lord chief justice

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S.C.J. . Supreme court journal

S.C.C. . Supreme court cases

S.C.R. .. Supreme court report

Supreme. .. A journal on supreme court judgement

H.C. .. Hospital cases

LIST OF CASES

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Donoghue v. Stevenson

Jacob Mathew v. State of Punjab

Andrews v. Director of Public Prosecution

Syad Akbar v. State of Karnataka

Balchandra Waman Pathe v. State of Maharashtra

Heaven v. Pender

Donoghue v. Stevenson

Winterbottom v. Wright

Dr. M . Mayi Gowda v. State of Karnataka

Ruler Transport service v. Bezlum Bibi

RESEARCH METHODOLOGY

The method of writing followed in this project is both analytical and descriptive.

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REVIEW OF LITERATURE:

Negligence is a braech of a duty caused by the omission to do something which a

reasonable man, guided by those consideration which ordinarily regulate the

conduct of human affiairs would do, or doing something which a prudent or

reasonable man would not do. Actionable negligence consist 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.

The definition involves three constituents of negligence: (1) A legal duty to

exercise due care on the part of the party complained within the scope of the duty;

(2) Breach of the said duty; (3) Consequential damage.

RESEARCH OBJECTIVES:

1. To do an analytical study on Negligence.

2. To do a comparative study of the cases related to it.

RESEARCH QUESTIONS:

The research questions are as follows:

1. What is negligence & its meaning?

2. What is negligence in strict liability?

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3. When physician & surgon and keeper of dangerous animal held liable ?

4. Proof of negligence?

RESEARCH METHODS:

The researcher has used the doctrinal method and has relied on the secondary

sources for the content of the research paper.

Owing to the large number of topics that could be included in the project, the scope

of this research paper is exceedingly vast. However in the interest of brevity, this

paper has been limited to the topics which deal with this topic.

HYPOTHESIS:

The researcher feels that :

Duty of care is mandatory while deciding the liability for negligence under

torts.

Negligence is an evolving field in torts.

The damage should be in existence with to respect to someone.

CHAPTER 1

INTRODUCTION

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Conduct that falls below the standards of behavior established by law for the protec

tion of others against unreasonable risk of harm. A personhas acted negligently if

he or she has departed from the conduct expected of a reasonably prudent person a

cting under similarcircumstances.

In order to establish negligence as a Cause of Action under the law of TORTS, a

plaintiff must prove that the defendant had a duty to theplaintiff, the defendant brea

ched that duty by failing to conform to the required standard of conduct, the defend

ant's negligent conduct wasthe cause of the harm to the plaintiff, and the plaintiff w

as, in fact, harmed or damaged.

The concept of negligence developed under EnglishLaw. Although English Comm

onLaw had long imposed liability for the wrongful acts ofothers, negligence did

not emerge as an independent cause of action until the eighteenth century. Another

important concept emerged at thattime: legal liability for a failure to act. Originally

liability for failing to act was imposed on those who undertook to perform some se

rvice andbreached a promise to exercise care or skill in performing that service.

Gradually the law began to imply a promise to exercise care or skill inthe performa

nce of certain services. This promise to exercise care, whether express or implied, f

ormed the origins of the modern concept of"duty." For example, innkeepers were s

aid to have a duty to protect the safety and security of their guests.

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The concept of negligence passed from Great Britain to the United States as each st

ate (except Louisiana) adopted the common law of GreatBritain (Louisiana adopte

d the CivilLaw of France). Although there have been important developments in ne

gligence law, the basic conceptshave remained the same since the eighteenth

century. Today negligence is by far the widest-ranging tort, encompassing virtuall

y allunintentional, wrongful conduct that injures others. One of the most important

concepts in negligence law is the "reasonable person," whichprovides the standard

by which a person's conduct is judged.

Negligence in the law of torts is term used to designate a failure to exercise

resulting in injury to another, and for which an action for money damages may be

brought. Negligence can simply be defined as breach of duty of care Negligence is

a tort which depends on the existence of a breaking of the duty of care owed by

one person to another. Negligence refers to the failure of a person to exercise

sufficient care in his or her conduct. When a persons conduct falls below the

reasonable expectation of society and causes foreseeable harm to another, the

person has acted negligently.

Chapter:2

DUTY OF CARE

CONDITION FOR EXISTENCE OF DUTY

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The existence of a duty situation or a duty to take care is thus essential before a

person can be held liable in negligence. Normally a question of existence of a

duty situation in a given case is decided on the basis of existence precedent

covering similar situation; but it is now well accepted that new duty situation

can be recognized. A privilege or liberty of yesterday may become duty of

today for law of negligence is consistently influenced and transformed by

social, economic and political considerations.

FORCEABILITY & PROXIMITY

The general principle of forcibility and proximity applicable in solving

cases presenting the existence or otherwise of a new duty situation was

laid down by LORD ATKIN in the celebrated cases donoghue v.

Stevenson in the following words you must take reasonable care to

avoid acts or omissions which you can reasonably foresee would be

likely to injure your neighbor. Who, then, in law is my neighbor? The

answer seems to be, persons who are so closely and directly affected by

my act that I ought reasonably to have them in contemplation as being so

affected when I am directed my mind to the acts or omission which are

called questions. The duty of care is to avoid act or omission which one

can reasonably foresee would be likely to injured another. This is the

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principle of forceability. But this duty is not owed to everyone who is

likely to be injured but only to person who are so closely and directly

affected by ones act that is reasonable for one to have them in

contemplation. This is the principle of proximity.

JUST & REASONABLE

The House of Lords has recently emphasised that a duty of care in tort

will only be imposed when it is fair just and reasonable.

The case of Mitchell and another v Glasgow City Council considered a

claim brought by the family of a pensioner who was killed by his

neighbour. Mr. Mitchell had lived next door to Mr. Drummond for many

years. Both lived in flats owned by Glasgow City Council. For many

years, Mr. Drummond had threatened Mr. Mitchell in addition to other

People in the estate. In July 2001, Glasgow Council called Mr.

Drummond in to a meeting to discuss his behaviour. Immediately after

the meeting, Mr. Drummond attacked Mr. Mitchell. Mr. Mitchell

subsequently died from the injuries sustained during the attack. Mr.

Drummond was sentenced to five years in prison.

It relied heavily on the three stage test set out in the case of Caparo v

Dickman: (1) the loss must be foreseeable, (2) the relationship between
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the parties must be sufficiently proximate and (3) it must be fair just and

reasonable to impose the duty.

ECONOMIC LOSS

Economic loss is a term of art which refers to financial loss and damage

suffered by a person such as can be seen only on a balance sheet rather

than as physical injury to the person or destruction of property.

Subject to exceptional cases, where a professional man is in contractual

relationship or where there is special proximity due to special fact such as

that the plaintiff relies on special skill of the defendant and the

relationship.

Recovery for Pure economic loss in English law, arising from negligence,

has traditionally been limited. Notably, recovery for losses that are

"purely economic" arise under the Fatal Accidents Act 1976; and for

negligent misstatements, as stated in Hedley Byrne v. Heller. Economic

loss generally refers to financial detriment that can be seen on a balance

sheet but not physically. Economic loss is then divided into

"consequential economic loss" - that which arises directly from some

physical damage or injury (e.g. loss of earnings from having your arm cut

off) and "pure economic loss", which is everything else.

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Examples of pure economic loss include:

Loss of income suffered by a family whose principal earner dies in an

accident. The physical injury is caused to the deceased, not the family.

Loss of market value of a property owing to the inadequate

specifications of foundations by an architect.

Loss of production suffered by an enterprise whose electricity supply is

interrupted by a contractor excavating a public utility.

PHYSICAL DAMAGE

Direct physical damage is qualitatively different from indirect economic

loss for inferring liability, it does not follow that in cases of physical

damage of property in which plaintiff has a proprietary or prossessory

interest the only requirement should be established by the plaintiff is

reasonable foreseeability. the elements of foreseeability and proximity

as well as consideration of fairness, justice and reasonableness are

relevant to all to all cases whatever the nature of harm sustained by

plaintiff.

To person:

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Injuries caused to the physical body are common causes of negligence

tort in product liability cases. Products such as tools, automobiles,

kitchen appliances and the like may, through normal use, result in bodily

injury for which the manufacturer may be liable. Negligence applies to

defects in manufactured goods but also applies to products free of

manufacturing defect that do not feature necessary safety warnings for

common concerns. Products without specific irremovable safety

warnings may be found to be negligent if their use can result in bodily

injury.

To Tangible things:

While negligence tort for physical harm is suit for bodily injury resulting

from use of manufactured goods, separate negligence claims can be made

for damage to personal nonliving property. When the intended use of a

product results in damage to real estate or personal possessions owned by

the buyer or those in contact with the buyer, the seller may be held

responsible for negligence tort, and be forced to compensate the property

owner.

Chapter:3
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CASES RELATED TO NEGLIGENCE OF HOSPITAL AUTHORITIES

Cassidy v. Ministry of Health

Facts: In this case the plaintiff went to the doctor to cure his two stiff fingers.

When the doctor operated him and when he was brought out it was seen that his

two fingers were not cured but instead his two other fingers also became stiff. Due

it this he almost couldnt use his full hand. Hence the plaintiff filed a petition in the

court asking for compensation.

Issue: Whether in this case the principle of res ipsa loquitor can be applied or not

Judgment: The court held that the act committed by the doctor was so negligent.

The hospital authorities were held liable when, due to the negligence of the house

surgeon and other staff, during post operation treatment, the plaintiffs hand was

rendered useless.

Res ipsa loquitor means that the act speaks for itself. In some cases it becomes

difficult to establish negligence in many personal injury actions. In these cases,

sometimes the court helps the plaintiff by applying this maxim. The doctrine is

most useful in cases where damage has occurred in an incident involving

machinery or in the context of damage suffered while the plaintiff was involved in

some sort of complex process. It can be applied only where the plaintiff is unable

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to identify the precise nature of the negligence which caused his injury and where

no explanation of the way in which the injury came to be inflicted has been offered

by the defendant. The injury itself must be of such a kind as does not normally

happen in the circumstances unless there is negligence.

Sishir Ranjan Saha v. State of Tripura

Facts: The victim of the road accident was brought to a hospital. He needed major

surgery. The specialist doctor was not available as he was busy attending to the

other patients and did not respond to the call of emergency. The victim filed a suit

in the court claiming compensation.

Issue: Whether the doctor was liable for not attending to the victim

Judgment: The court held that the doctor was liable for not attending the

emergency patient in time especially after claiming to provide emergency services.

It ordered the defendant to pay a compensation of Rs.1,25,000. It also ordered the

hospital to improve its quality of service.

Shakoor v. Situ

Facts: a patient died of idiosyncratic liver reaction after taking nine doses of a

traditional Chinese remedy prescribed by an herbal doctor. The skin condition from

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which the patient had been suffering could only be treated by surgery in orthodox

medicine. His widow sued in negligence.

Issue: The issue was as to what is the appropriate standard of care.

Judgment: the court held that an alternative medical practitioner could not be

judged by the standard of orthodox medicine because he did not hold himself out

as professing that art; rather, he would be judged by the prevailing standard in his

own art subject to the caveat that it would be that it would be negligence if it

could be shown that that standard itself was regarded as deficient in the UK having

regard to the inherent risks involved. In the event, the negligence action failed

because the court held that the practitioner had acted in accordance with the

standard of care appropriate to the traditional Chinese medicine as properly

practiced in accordance with the standards required in the UK.

Chapter:4

BREACH OF DUTY OF CARE

After the plaintiff has shown that the defendant owed a duty to him, the plaintiff to

succed in a claim for negligence, has next to show that the defendant was in breach

of duty. The test for deciding this is again the of reasonable or prudent man. The

question to be asked is: has the defendant omitted to do something which a

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reasonable and prudent man, guided by those consideration which ordinarly

regulate the conduct of human affairs would have done, or has he done something

which is reasonable and prudent man would not have done?

In English tort law, there can be no liability in negligence unless

the claimant establishes both that they were owed a duty of care by the defendant,

and that there has been a breach of that duty. The defendant is in breach of duty

towards the claimant if their conduct fell short of the standard expected under the

circumstances

Breach of duty in negligence liability may be found to exist where the defendant

fails to meet the standard of care required by law. Once it has been established that

the defendant owed the claimant a duty of care, the claimant must also demonstrate

that the defendant was in breach of duty. The test of breach of duty is generally

objective, however, there may be slight variations to this.

A breach of duty occurs when one person or company has a duty of care toward

another person or company, but fails to live up to that standard. A person may be

liable for negligence in a personal injury case if his breach of duty caused another

persons injuries.

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The scope of breach of duty of care is a large one. The law of Tort is a widelye

xplored course in modern law and would be incomplete without discussing

Negligence. Atortis an act that injures someone in some way, and for which the

injured person may sue the wrongdoer for damages. The word Tort is not related

to the word legally, torts are called civil wrongs, as opposed to criminal ones. It is

worthy of mention that the scope of breach of duty of care is incomplete without

first of all defining negligence. The basic rule of negligence is that the defendant

must conform to the standard of care expected of a reasonable person.

Chapter:5

CONCLUSION AND SUGGESTION

Tort is defined in Section 2 (m) of limitation act 1963. It imposes a legal duty over

citizens in rem and also guarantees certain rights in personem. Tort arises when

there is a violation of these rights or in efficiency to perform legally imposed

duties.

Negligence is one of the most recent development in torts it has went on to become

one of the most wide sphere of the same. Negligence occurs when there is a

breach in legally imposed duty. The law goes on to see reasonable performance of

duty of care towards negligence .

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Negligence is a braech of a duty caused by the omission to do something which a

reasonable man, guided by those consideration which ordinarily regulate the

conduct of human affiairs would do, or doing something which a prudent or

reasonable man would not do. Actionable negligence consist 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.

BIBLIOGRAPHY

The researcher has relied on the following secondary sources of data:

Books:- LAW OF TORTS (Dr. R.K. Bangia),

THE LAW OF TORTS (RATANLAL & DHIRAJLAL),

OXFORD THE LAW OF TORTS

Internet:-

www.tortlaw.com

www.negligencelaw.com

http://manupatra.in/

http://westlaw.in/

www.negligence.tortlaw.in

Journals

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News paper reports

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