HIMACHAL PRADESH NATIONAL LAW UNIVERSITY

LA
BY- AANAND SINGH
ROLL NO. 1020181918
B.A LL.B (1ST SEMESTER)

TO- DR. RUCHI GUPTA

INTRODUCTION
WHAT IS NEGLIGENCE?
Negligence usually includes doing something that an ordinary, reasonable, and prudent person
would not do ,or not doing something such a person would considering the circumstances
,situations and the knowledge of the parties involved.1
According to Winfield, “negligence as a tort is the breach of a legal duty to take care which
results in damage, undesired by the defendant to the plaintiff”.
The definition involves three constituents of negligence
1. Duty of care2
2. Breach of duty3
3. Damage4
NEGLIGENCE AS A TORT AND AS A CRIME

1
Blyth v. Birmingham Waterworks Co.,(1856)
2
Donoghue v. Stevenson (1932)
3
Blyth v. Birmingham Waterworks Co.,(1856);Latimer v. A.E.C. Ltd. ,Nirmala v. Tamil Nadu Electricity Board
4
Morgan v. Sim
 It can be fall under both the Civil wrong or tort and Criminal Law. The amount of damages
incurred is determinant of the extent of liability under tort, but in criminal law amount and
degree of negligence determines liability.
In Andrew v. Director of Public Prosecutions, Lord Atkin stated that, “Simple lack of care- such
as will constitute civil liability is not enough; for purposes of criminal law there are degrees of
negligence; and a very high degree of negligence is required to be proved before the felony is
established”
DEFENCES

1. Act of God
An act of god is an occurrence without human interference which cannot be
avoided or prevented by anyone. Like an earthquake, a volcanic eruption, etc. Acts
of god have a legal significance because “acts of god” are a legal excuse for delay
or failure to fulfill an obligation.5

2.Inevitable Accidents
It is a significant defence in the law of torts. It concerns a situation where a person
exercising due care and ordinary prudence could not have foreseen or avoided an
accident.6
3.Contributory Negligence
When plaintiff by his own want of care contributes to the damage caused by the
negligence or wrongful conduct of defendant, he is considered to be guilty of
contributory negligence.
CONTRIBUTORY NEGLIGENCE
GENERAL PRINCIPLES:

When a claim arises out of death or injury caused by negligence the court where
both parties are somehow negligent. There are three possible answers to such an
enquiry depending upon the circumstances of the case:

5
Municipal Corp. of Delhi v. Subhagwati
6
Rural Transport Service v. Bezlum Bibi
 a) The defendant’s negligence alone caused the injury or death.
b) The plaintiff’s negligence alone caused the injury or death.
c) Negligence of both the parties caused the death or injury.

In case “a” and “b” it is clear that the defendant and plaintiff will held liable
respectively. But in the last case “c” where both the parties are at fault the common
law rule was that the plaintiff was to fail even the defendant was more at fault.7
In other words, if the plaintiff’s negligence contributed in some degree to death or
injury, the defendant succeeded by pleading contributory negligence inspite of that
the death or injury was largely caused by the defendant’s negligence.
This defence enables the defendant to escape completely even when he was more
at fault.so,the courts were reluctant to infer that the negligence of plaintiff was a
contributory negligence.

RULE OF LAST OPPORTUNITY

Since the courts were slow to infer the rule of common law system they devised a
new rule called the rule of last opportunity which was that if the defendant had the
last opp[ortunity to avoud the accident results in injury he was held solely
responsible for the injury inspite of the fact the plaintiff has also contributed to the
injury.8

7
Butterfield v.Forrestor,(1809)
8
British Columbia Electric Ry. V. Loach,(1916)