MEANING DEFINITION AND EXPLANATION

Negligence is a crucial concept in tort law that involves failure to exercise reasonable care resulting in harm to another party. It occurs when a person breaches their duty of care owed to others through careless actions or omissions. The jurisprudential concept of negligence defies any precise definition. Eminent jurists and leading judgments have assigned various meanings to negligence.

The Supreme Court in Jacob Mathew v. State of Punjab observed that negligence is the breach of a duty caused by omitting to do something which a reasonable person guided by considerations that ordinarily regulate human affairs would do or doing something which a prudent and reasonable person would not do.

Actionable negligence involves the act of neglecting to use 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 suffers injury to person or property.

Negligence has three primary constituents:

• A legal duty to exercise due care owed by the defendant to the plaintiff
• Breach of that duty by the defendant and
• Consequential damage suffered by the plaintiff. According to Charlesworth & Percy negligence has three meanings in current forensic speech:
  • a state of mind opposed to intention
  • careless conduct and
  • breach of duty to take care imposed by common or statute law.

Negligence as a Tort and as a Crime

The term ‘negligence’ is used to fasten liability under both civil and criminal law.

• In civil law the amount of damages incurred determines the extent of liability in tort.
• However in criminal law it is the degree of negligence that determines liability rather than the quantum of damages.
• To establish criminal negligence a higher degree of negligence must be proven compared to civil negligence.

The essential ingredient of mens rea cannot be excluded when considering criminal negligence charges. As observed in R. v. Lawrence recklessness constituting mens rea in criminal law presupposes that there is something in the circumstances that would alert an ordinary prudent individual to the possibility of causing serious harm. The moral culpability of recklessness resides in the proximity of the reckless state of mind to the intention to cause harm.

For criminal rashness or negligence it must be shown that the rashness was of such a degree as to amount to taking a hazard knowing that injury was most likely imminent. As stated in Andrews v. Director of Public Prosecutions a very high degree of negligence is required to establish criminal liability compared to civil liability. The negligence in criminal cases must be culpable or gross and not merely based on an error of judgment.

ESSENTIALS OF NEGLIGENCE

In an action for negligence, the plaintiff must prove three essential elements:

1. The defendant owed a duty of care to the plaintiff
2. The defendant breached that duty
3. The plaintiff suffered damage as a consequence of that breach
4. Duty of Care to the Plaintiff

(1) LEGAL DUTY

The plaintiff must establish that the defendant owed him a specific legal duty to take care which has been breached. This duty arises out of various relations which may not be possible to enumerate exhaustively. Courts recognize new duties when they consider it just.

Lord Atkin propounded the “neighbor principle” in the landmark case of Donoghue v. Stevenson: “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor.”

He defined neighbors as “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.“

This case established that a manufacturer owes a duty to take care that products do not contain noxious matter and will reach the ultimate consumer without reasonable possibility of intermediate examination. It did away with the “privity of contract fallacy” by allowing the consumer to sue the manufacturer in tort despite no contractual relationship.

Duty Depends on Reasonable Foreseeability of Injury

Whether the defendant owes a duty to the plaintiff depends on reasonable foreseeability of injury to the plaintiff. If at the time of the act or omission the defendant could reasonably foresee injury to the plaintiff he owes a duty to prevent that injury. The duty is owed to those to whom injury may reasonably and probably be anticipated if the duty is not observed.

To determine culpability we must consider what a reasonable person would have foreseen and how they would have behaved under the circumstances. One useful test is to enquire how obvious the risk must have been to an ordinary prudent person. The standard of foresight of the reasonable person is in one sense an impersonal test independent of the idiosyncrasies of the particular person in question.

Some key cases illustrating this principle include:

• In Glasgow Corp. v. Taylor a child died after eating poisonous berries in a public garden. The corporation was held liable for not fencing the shrub or displaying warnings about the deadly berries which looked tempting to children.
• In Haley v. London Electricity Board a blind man was injured after tripping on an insufficiently marked obstacle on the pavement. The court held the electricity board liable as blind pedestrians were reasonably foreseeable in London and extra precautions were required.
• In Paris v. Stepney Borough Council an employer was held liable for not providing goggles to a one-eyed employee as the loss of his remaining eye was a foreseeable risk.

Reasonable foreseeability does not mean remote possibility. The duty is to guard against probabilities rather than bare possibilities.

In Bolton v. Stone the defendant cricket club was not liable when a ball hit outside the ground injured a passer-by as the chance of injury was very small.

(2) BREACH OF DUTY

Breach of duty means non-observance of due care required in a particular situation. The standard of care is that of a reasonable or ordinarily prudent person. If the defendant has acted like a reasonably prudent person there is no negligence.

The law requires taking two factors into consideration to determine the standard of care required:

• The importance of the object to be attained
• The magnitude of the risk

a) The Importance of the Object to be Attained

The law permits taking some measure of risk so that activities in public interest can continue. A balance has to be drawn between the importance and usefulness of an act and the risk created. For example a certain speed may not be negligent for a fire brigade vehicle but may be negligent for another vehicle.

In Latimer v. A.E.C. Ltd. the respondents were not liable for not closing down a factory after a flood left oily patches on the floor as the risk was not so great as to justify shutting down and laying off thousands of workers.

b) The Magnitude of Risk

The degree of care required varies according to each situation. What may be careful in one situation may be negligent in another. The kind of risk involved determines the precautions expected. Greater care is required when transporting inflammable materials than ordinary goods.

Some examples:

• A driver must take greater care when it is drizzling
• A person carrying a loaded gun is expected to take more precaution than one carrying a stick
• Greater care is needed while transporting petrol than milk

(3) DAMAGE

The plaintiff must show that the defendant’s breach of duty caused damage to the plaintiff. The damage must not be too remote a consequence of the negligence. The plaintiff has to prove all items of damages claimed. The court has the duty to assess damages applying the proper measure and considering remoteness.

PROOF OF NEGLIGENCE: RES IPSA LOQUITUR

As a general rule the plaintiff has to prove the defendant was negligent. However in certain cases when the accident explains only one thing – that it could not have occurred unless the defendant was negligent – the law raises a presumption of negligence based on the maxim ‘res ipsa loquitur’ which means ‘the thing speaks for itself.’

For this maxim to apply:

1. The event causing the accident must have been under the exclusive control of the defendant
2. The accident must be such as does not ordinarily occur without negligence

Some examples where res ipsa loquitur has been applied:

• Collapse of a building structure
• Brick falling from a building and injuring a passer-by
• Bus overturning on the road
• Death caused by live broken electrical wire in a street
• Foreign object left inside patient’s body after surgery

The maxim shifts the burden of proof to the defendant to disprove negligence. It is not a rule of law but a rule of evidence benefiting the plaintiff. The defendant can avoid liability by disproving negligence on their part.

The maxim does not apply if different inferences are possible from the facts. When the accident is capable of two explanations such a presumption is not raised.

Nervous Shock

This branch of tort law provides relief when a person suffers physical injury not by direct impact but merely through nervous shock by what they have seen or heard. Early cases like Victorian Railway Commissioner v. Coultas did not recognize such claims but later decisions have accepted liability for nervous shock without physical impact.

Key principles:

• Shock must arise from reasonable fear of immediate personal injury to oneself or close relatives
• Plaintiff need not be in the area of physical injury but must be placed where injury through shock is foreseeable
• Peculiar susceptibility of the plaintiff is no defense

Some Landmark Cases:

• Dulieu v. White – Pregnant woman suffered shock seeing horse van driven into pub
• Hambrook v. Stokes – Mother suffered shock fearing for safety of children
• Bourhill v. Young – Fishwife too far from accident scene to claim for shock

The law on nervous shock continues to evolve as courts grapple with issues of remoteness and foreseeability in such cases. Overall negligence remains a complex area of tort law requiring careful analysis of duty breach and damage in each case.

PROFESSIONAL AND MEDICAL NEGLIGENCE

Meaning & Definition

Professional negligence refers to a breach of duty of care by individuals possessing special skills or expertise. This concept applies to professionals such as doctors lawyers architects and others who profess specialized knowledge. The law expects these professionals to exercise reasonable competence and care in their practice.

Medical negligence is a specific form of professional negligence. It occurs when a healthcare provider fails to provide the standard of care expected causing harm to a patient. This branch of law aims to protect patients from substandard medical practices while acknowledging the inherent risks in healthcare.

Elements of Professional Negligence

To establish professional negligence several key elements must be proven:

• Duty of Care: The professional owed a duty of care to the client or patient.
• Breach of Duty: The professional failed to meet the expected standard of care.
• Causation: The breach directly caused harm to the client or patient.
• Damages: The client or patient suffered quantifiable harm or loss.

These elements form the foundation for assessing liability in professional negligence cases.

Standard of Care in Medical Profession

The standard of care expected from medical professionals is not perfection but reasonable competence. As explained in Jacob Mathew v. State of Punjab (AIR 2005 SC 3180) a doctor must exercise skill with reasonable competence. The court applied the Bolam test which states that a doctor is not negligent if they acted in accordance with a practice accepted by a responsible body of medical professionals.

Types of Medical Negligence

Medical negligence can manifest in various forms:

• Misdiagnosis or Delayed Diagnosis
• Surgical Errors
• Medication Errors
• Birth Injuries
• Anesthesia Errors
• Failure to Obtain Informed Consent

Each type requires careful examination of the specific circumstances and medical standards involved.

Doctrine of Res Ipsa Loquitur

The doctrine of res ipsa loquitur (the thing speaks for itself) is often applied in medical negligence cases. It allows courts to infer negligence from the very nature of the accident or injury in the absence of direct evidence. This doctrine was applied in Aparna Dutta v. Apollo Hospital Enterprises Ltd. Madras (AIR 2000 Mad. 340) where a foreign object was left in the patient’s body after surgery.

Consent and Medical Treatment

Informed consent is a crucial aspect of medical treatment. Doctors have a duty to disclose material risks and obtain consent before proceeding with treatment. Failure to do so can constitute negligence. However in emergencies where obtaining consent is not feasible doctors may proceed with necessary treatment to save life or prevent serious harm.

Vicarious Liability in Medical Negligence

Hospitals and healthcare institutions can be held vicariously liable for the negligence of their employees. This principle was applied in R.P. Sharma v. State of Rajasthan (AIR 2002 Raj. 104) where the state-run hospital was held liable for the death caused by negligent transfusion of incorrect blood type.

Defences in Medical Negligence Cases

Several defences are available in medical negligence cases:

• Contributory Negligence: When the patient’s own actions contributed to the harm.
• Volenti Non Fit Injuria: The patient voluntarily assumed the risk.
• Error of Judgment: A mere error of judgment is not negligence if it was a reasonable choice among accepted medical practices.

These defences can mitigate or eliminate liability depending on the circumstances.

Compensation in Medical Negligence Cases

Courts consider various factors when awarding compensation in medical negligence cases:

• Medical Expenses
• Loss of Earnings
• Pain and Suffering
• Loss of Amenities
• Future Care Costs

The quantum of damages aims to put the victim as close as possible to their position before the negligent act.

Professional Negligence in Other Fields

While medical negligence is a prominent area professional negligence extends to other fields:

• Legal Negligence: Lawyers may be held liable for errors in handling cases or providing legal advice.
• Architectural Negligence: Architects can be liable for design flaws leading to structural issues.
• Accounting Negligence: Accountants may face liability for errors in financial statements or tax advice.

Each profession has its specific standards and expectations.

Landmark Cases in Professional and Medical Negligence

Several landmark cases have shaped the law of professional and medical negligence in India:

• Indian Medical Association v. V.P. Shantha (1995 6 SCC 651): Established that medical services fall under the Consumer Protection Act.
• Jacob Mathew v. State of Punjab (AIR 2005 SC 3180): Clarified the standard of care expected from medical professionals.
• State of Haryana v. Santra (AIR 2000 SC 1888): Held doctors liable for negligence in failed sterilization operations.

These cases provide essential guidance for interpreting and applying negligence laws.

CONTRIBUTORY NEGLIGENCE

Meaning and Definition

Contributory negligence occurs when the plaintiff’s own lack of care contributes to the damage caused by the defendant’s negligence. It refers to the plaintiff’s failure to take reasonable care for their own safety which is a contributing factor to the harm suffered.

The Supreme Court in Municipal Corporation of Greater Bombay v. Laximan Iyer explained that contributory negligence arises where an accident is due to negligence of both parties and both are to be blamed. The crucial question is whether either party could have avoided the consequences of the other’s negligence by exercising reasonable care.

Elements of Contributory Negligence

To establish contributory negligence the following elements must be proved:

• The plaintiff failed to take reasonable care for their own safety
• This failure was a contributing factor to the harm suffered by the plaintiff
• A reasonable person in the plaintiff’s position would have foreseen the risk of harm
• The plaintiff’s conduct fell below the standard of care expected of a reasonable person

Contributory negligence is assessed based on the plaintiff’s conduct not in relation to any duty owed to the defendant. Rather it considers whether the plaintiff took due care for their own safety in the circumstances.

Effect of Contributory Negligence

Historically contributory negligence was a complete defence that barred the plaintiff’s claim entirely even if they were only slightly at fault. This harsh rule was eventually modified by courts through doctrines like “last opportunity” rule. Currently in most jurisdictions including India contributory negligence results in apportionment of damages rather than a complete bar to recovery. The compensation is reduced to the extent the plaintiff was at fault.

The Law Reform (Contributory Negligence) Act 1945 in England provides for apportionment of damages in cases of contributory negligence. While there is no central legislation in India some states like Kerala have enacted similar laws. Indian courts have generally followed the principle of apportionment in cases of contributory negligence.

Defence of Contributory Negligence

How Far is Contributory Negligence a Defence

Contributory negligence operates as a partial defence that reduces the quantum of damages recoverable by the plaintiff. The defendant can plead contributory negligence to argue that the plaintiff’s own carelessness contributed to the harm suffered. If proved the court will apportion the damages based on the relative fault of both parties.

Rules to Determine Contributory Negligence

• The plaintiff’s negligence is assessed based on whether they took reasonable care for their own safety not in terms of any duty owed to the defendant
• The plaintiff’s negligence must have contributed to the resulting damage – if the same damage would have occurred despite the plaintiff’s care contributory negligence cannot be pleaded
• The standard of care expected from the plaintiff is that of a reasonable person in similar circumstances
• Children are held to a lower standard of care than adults in determining contributory negligence

Doctrine of Alternative Danger

This doctrine provides that where the defendant creates a dangerous situation the plaintiff is justified in taking some risk to avoid it. If the plaintiff suffers harm while reasonably trying to escape the danger created by the defendant contributory negligence cannot be pleaded. For example in Jones v. Boyce the plaintiff jumped from a coach being driven negligently by the defendant and was injured. It was held that the plaintiff had acted reasonably under the circumstances and could recover damages.

Presumption That Others Are Careful

In certain situations the plaintiff is entitled to assume that others will take due care. For instance a passenger can presume that a transport provider has taken proper safety precautions. In such cases the plaintiff’s failure to double check safety measures may not amount to contributory negligence.

Contributory Negligence of Children

Courts take into account the age and capacity of children in determining contributory negligence. A young child cannot be expected to observe the same standard of care as an adult.

In R. Srinivasa v. K.M. Parasivamurthy it was held that a 6-year-old child hit by a lorry near the footpath could not be blamed for contributory negligence as a child of that age does not have the road sense of adults.

However if a child is capable of appreciating the danger they may be held guilty of contributory negligence. The standard is whether the child exercised the degree of care expected from a child of similar age intelligence and experience.

Doctrine of Identification

This doctrine provides that the contributory negligence of the plaintiff’s servant or agent can be attributed to the plaintiff. However the negligence of an independent contractor engaged by the plaintiff cannot be pleaded as contributory negligence against the plaintiff. For instance the negligence of a taxi driver cannot be used as a defence against a passenger injured due to the negligence of another vehicle.

The doctrine of identification was at one time applied to children in the custody of adults but this has been overruled. In Oliver v. Birmingham and Midland Omnibus Co. a child injured in a road accident was not identified with his negligent grandfather and was allowed to recover damages.

COMPOSITE NEGLIGENCE

Meaning and Definition

Composite negligence refers to a situation where the negligence of two or more persons results in the same damage to the plaintiff. The persons responsible are known as composite tortfeasors. Unlike contributory negligence composite negligence involves negligence by multiple defendants towards the plaintiff who is not at fault.

Nature of Liability in Composite Negligence

The liability of composite tortfeasors is joint and several. This means:

• The plaintiff can sue any or all of the tortfeasors
• Each tortfeasor is liable for the entire damage
• The plaintiff can recover the full compensation from any one tortfeasor
• A tortfeasor who pays more than their share can claim contribution from the others

Most High Courts in India have held that there can be no apportionment of damages between composite tortfeasors. The plaintiff can enforce the entire claim against any of the defendants. This is based on the principle of joint and several liability.

For example in Hira Devi v. Bhaba Kanti Das where an accident occurred due to negligence of drivers of a bus and a car the court held that the claimants could recover the entire amount from the bus owner. The bus owner could then seek contribution from the car owner.

Apportionment Between Tortfeasors

While courts generally do not apportion damages between composite tortfeasors some decisions have apportioned liability for determining contribution rights between the tortfeasors.

In Amthiben v. Superintending Geophysicist ONGC the court apportioned liability between two negligent drivers at 75:25 but clarified that this was only to determine their inter se liability. The decree against them remained joint and several.

COMPARISON BETWEEN CONTRIBUTORY AND COMPOSITE NEGLIGENCE

Key differences between contributory and composite negligence:

1. In contributory negligence the plaintiff is partly at fault whereas in composite negligence only the defendants are negligent.
2. Contributory negligence results in apportionment of damages and reduction of compensation. In composite negligence there is joint and several liability without apportionment.
3. Contributory negligence is a defence that reduces liability. Composite negligence determines how liability is shared between multiple defendants.
4. In contributory negligence the court assesses the relative fault of plaintiff and defendant. In composite negligence the focus is on defendants’ respective liabilities.

Contributory negligence involves balancing the plaintiff’s and defendant’s fault. Composite negligence deals with allocating liability between negligent defendants.