This article is about negligence under law of torts and the details that are
under it, covering the definition of negligence, its meaning, the duties like
duty of care, to the plaintiff, standard of care, breach of duty, and
liability. like magnitude of risk, importance of object, amount at which services
are offered and damages under negligence, including Nervous shock with suitable
examples and case laws.
According to professor Winfield Negligence is the breach of a legal duty to
take care, which results in damage, undesired by the defendant to the
In turn, it would mean that negligence is the breach of a duty caused by not
doing what a reasonable man under those conditions normally would as the conduct
of human affairs or not doing so
It's a person suffers grossly caused by another person's negligence, that person
may be able to sue him for damages and to compensate for their own. such loss
may include physical injury illness loss or harm to property
Negligence is the breach of a duty caused by the omission to do something which
a reasonable man guided by those considerations which ordinarily regulate the
conduct of human affairs would do for doing something which prudent and
reasonable man would not to actionable negligence costs in the neglect of the
use of ordinary care for skill towards a person to whom the defendant was the
duty of absorbing ordinary care and skin by which neglect the plaintiff has
suffered injuries to his person or property
According to this definition of negligence, we can find three major points of
negligence which are to exercise due care as part or partly complaint towards a
party as a legal duty because of:
- the formers conduct inside the scope of the
duty that has been spoken off
- the second constituent is that there has been a breach of such said duty
- lastly the third constituent that we would assume is that there has been
Negligence could have three meanings to them could be:
- Men's rea for the state of mind that the person is in and does not intend to do
this so that is that there should be no intention
- There is a careless approach or if one may say Aquarius conduct
- Lastly third would be the breach of a duty that is thereby the contract or any
other common law statute law
All three of these are combined and can be applied in any cases
Essentials of negligence to show that an action for negligence has taken place
the plaintiff must prove the following essentials of negligence
First is that the defendant would a duty of care to the plaintiff
The second is that the defendant made a breach of the duty
And the third is that the plaintiff himself suffered damage because of the
breach caused by the defendant
Duty Of Care To The PlaintiffOne of the essential elements which are required to make an individual obligated
is the duty of care. This duty is to say that a man has an obligation of care to
another person. If he doesn't owe that obligation, he can't be held at risk for
an accident or an act.
Here duty means legal duty not a moral or religious duty
It should be clear and established by the plaintiff that the defendant poses him
a specific legal duty to take care and of which the defendant may have made
bridge it depends upon each case whether a duty exists
In the case of Donoghue v/s Stevenson,
a bottle of Ginger beer was bought from a retailer for the applicant for his
friend. Some of the contents of the bottle poured inside a container and some
were consumed by the friend. When the rest of the contents were poured into
another container a decomposed body of a snail floated.
The appellant stated
that the friend seriously suffered in terms of health. On having drunk part of
the contaminated contents of the body since the bottle was dark and opaque and
closed with the metal cap the contents could not be seen or determined by
inspection through the eye. She brought an action against the manufacturer for
To this case, Lord Atkin said :
A manufacturer of products which he sells in such a phone to show that he
intends when to reach the ultimate consumer in the form in which date left
him with no reasonable possibility of immediate examination and with the
knowledge that the absence of reasonable care in the preparation for putting
up of the products will result in an injury to the consumer’s life or
property was a duty e to the consumer to take that reasonable care:
Duty depends on reasonable foreseeability of injuryWhether a defendant owes a duty to a plaintiff depends on the extent to which he
reasonably knew that an injury would occur.
If a defendant can not reasonably foresee an injury to a plaintiff, he has a
duty to prevent it. if he fails to do so he is made liable
duty to take care is a duty that a person has to avoid doing or neglecting
anything that may have a reasonable and probable consequence for others.
if the duty is not observed one useful test is to enquire how obvious the risk
must have been to an ordinary prudent man
In the case of T.G. Thayumanavar v govt of Tamil Nadu
There was an electric wire on top of the road running across it the wire then
fell a cyclist cycling on the road who then died due to electrocution by the
wire it was found out later that the incident occurred due to the negligence of
the electricity board and that it was not an act of God
Hence the respondents were held liable in this case.
There is no liability when the injury is not foreseeableIn the case of Ryan vs young, 
The servant of the defendant was driving a lorry and while driving the said
lorry he suddenly died, which resulted in an accident and an injury to the
plaintiff. To the defendant, the driver appeared healthy and he could not
foresee the sudden death of the driver which led to the plaintiff's injury. In
this case, it was held that the accident was due to an act of God and that the
defendant was not liable for negligence.
Reasonable foreseeability does not mean remote possibilityTo prove that there has been negligence it is not just enough to prove that
there has been an injury but to prove that there was a reasonable likelihood of
the injury to occur
Foreseeability does not include any idea of likelihood at all
Here the duty is to protect against probabilities instead of bear possibilities
In the case of SK Devi versus Uttam Bhoi,
there was a little boy around 8 years of age and was hit by a truck in the
afternoon around 2:30 p.m. in broad daylight as the child was hit by the truck
he received multiple injuries, in this case, it was held that the driver while
driving near a place where children usually are should himself have taken
greater care while driving as the behaviour of children is unpredictable from
the nature of the injuries received by the child it was presumed that there was
negligence on the side of the driver and he was held liable.
Breach Of DutyBreach of duty here means that there was due care not observed which was
necessarily required in the given situation.
There is a standard of care and to check the standard of care it is compared to
the standard of a reasonable man or ordinary prudent man. If the defendant in
the case has acted like a reasonable man then there has been no negligence on
Standard Of Care Is RequiredThe law takes three points of consideration to determine whether the standard of
care is required
- importance of the attained object
- The law does not expect the greatest possible care but it requires care of, that
a reasonable man under certain circumstances would take
- The law allows some chance of risk under public interest so that it continues
- A balance has to be measured between the importance and usefulness of risk
- For example, the speed of an ambulance and the same speed for a car may be
negligent for one but not the other
The risk’s magnitudeThe amount, degree or magnitude of care required is varied according to every
situation. If an act is careful in one situation in the other it might not be
so. The law does not expect the same amount of care in each situation. The
amount of risk involved decides the precautions which are expected of the
defendant to take.
This magnitude of care depends upon the degree of risk which could have been
foreseen by a reasonable and prudent man. There is no absolute standard but it
is said that generally the amount of care is directly proportional to the amount
of risk. People who engage in operations that are inherently dangerous must take
precautions that are not necessary for people who are not engaged in such
situations or live in the ordinary routine of daily life.
The services offer for their amountThe amount of care depends also on the kind of services that have been offered
by the defendant and the consideration charged.
It is necessary that the breach of duty by the defendant must cause damage to
It has to be shown by the plaintiff that the damage caused is not to remote a
consequence of the defendant's negligence.
In the cases in which the plaintiff claims damage the responsibility is on the
plaintiff to prove all details of the damage in cases like these the facts that
help the court determine the amount of damages required are held relevant.
Assessing of damages duty is on the court, and to do so the court shifts to
rules and regulation and the practices of the courts. The court rules and
concludes every question that would permit the parties to gain final judgement
as a proper measure of damages was applied remoteness of damage and the amount
which is entitled to the plaintiff.
Proof Of Negligence: Res Ipsa LoquiturIt is a general rule that the plaintiff has to prove that the defendant was
negligent. The initial burden of a prima facie case lies heavily on the
plaintiff himself, but once this responsibility is performed, it is on the
defendant to prove that the incident was of inevitable accident or contributory
negligence on the part of the plaintiff. If negligence on part of the defendant
is not proved by the plaintiff, the defendant will not be held liable.
It is not always necessary to have direct evidence of negligence, it may be
inferred from the situation of the case.
A plaintiff's action will fail if he is unable to establish in a prima facie
case by either direct or circumstantial evidence that the defendant was
Although it is a general rule that the discharge of burden of proving negligence
is on part of the plaintiff is to the defendant, there are some certain cases
where the plaintiff need not do so and the inference of the negligence is drawn
in from the facts of the case.
'Res Ipsa Loquitur' which is a Latin maxim, and means that 'the thing speaks for
itself', there is a presumption of negligence.
When there is an incident, and the explanation of it can only be from the
negligent part of the defendant which otherwise would not have occurred in such
cases it is sufficient for the plaintiff to prove that there had been an
accident and nothing more.
The defendant can try and avoid his liability by disproving negligence on his
own part. For the maxim, 'Res Ipsa Loquitur', to be applicable it is important
that the incident has been under the influence of the defendant.
hence When the events surrounding the occurrence are completely or solely under
the command of the defendant or his servant and the incident Does not occur in
the ordinary course of things without negligence on the defendant's part the
maxim applies and the burden of proof is shifted from the plaintiff to the
Here instead of the plaintiff proving negligence on the defendant's part the
defendant himself has to prove that he was not negligent in his conduct.
Collapse Of Built StructureIn the case of the Municipal Corporation of Delhi versus Subhagwanti,
There was a clock tower situated close to the main Bazaar of Chandni Chowk in
Delhi and it collapsed which then, in turn, led to the death of a number of
people. this said property belongs completely to the Municipal Corporation of
Delhi and was under its control the normal life of such structures is 40 to 45
years but this particular clock tower was 80 years old. having regard for the
type of mortar used and under the circumstances, the Supreme Court of India held
that the collapse of the property is self-explanatory and tells its own story,
here i was inferred that there was negligence on the part of the defendant and
since they could not prove the nonattendance of negligence on their part, they
were held liable.
Foreign matter left inside after surgeryIn the case of Nihal Kaur v. Director P.G.I., Chandigarh: During the surgery,
a pair of scissors was left inside the body of a patient. His condition then
worsened and resulted in his untimely demise. After the cremation of his body,
scissors were recovered from the ashes. The dependents of the deceased were
awarded with a compensation of Rs. 1,20,000.
In the case of A.H. Khodwa v. State of Maharashtra: After childbirth, the
patient had undergone a sterilisation operation. The doctor who was performing
the operation left inside the abdomen of the patient, a mop. The patient had
died due to peritonitis after several days. the doctor performing the surgery
was under the presumption of negligence. The State running the hospital was then
Maxim not applicable if different inferences possibleThe maxim mentioned above "res ipsa loquitur" Is applicable only when the
inference from the facts suggest that the accident could not have occurred had
it not been for negligence at the defendant's part.
In the case of SK Allah Bakhas and others V Dhirendra Nath Panda And Another
There was an unmanned level crossing of the railway train and an autorickshaw
tried to cross it while the train was at a short distance the rickshaw was hit
by the train, therefore, harming the occupants it was held that it was an effort
on the part of the rickshaw driver to cross when the train was approaching and
that he was negligent consequently the assumption of negligence was raised
against the rickshaw driver.
When circumstances do not allow for clear and unambiguous terms to be used, the
accident may be caused by other factors. and the maxim is not applicable.
Rebuttal of the presumption of negligencethe rule of the maxim res ipsa loquitur Shifts the burden of proof from the
plaintive proving negligence to the part of the defendant requiring to disprove
itThe defendant can escape liability by proving what seemed as negligence on his
part was due to some of the other factors which were beyond their control.
In the case of Bihar State Road transport Corporation versus Smt. Manju Bhushan
There were two rickshaw cycle one trying to overtake the other and that is when
a state transport bus from behind hit a rickshaw with such a great force that
the applicant was thrown at the distance for more than 10 feet on the road since
a rickshaw is a slow moving vehicle, There was a presumption of negligent driving
on the side of the bus driver it was the duty of the bus driver to slow the bus
under such circumstances.
What is a comparatively new concept in the law and provides relief to a person
when the injury cost to them is not by impact but by nervous shock that is what
he has seen or heard.
In the case of Dooley vs. Cammell Liard and co
There was a driver of a crane ,Witnessed the breaking of the rope of the crane
and the load of the crane fell onto the ship where some men were at work. from
looking at this scenario he underwent a nervous shock and it was discovered
later that the rope had been broken due to the negligence of the defendant
therefore they were held liable to the plaintiff.
Award Winning Article Is Written By: Ms.Gauri Saxena
- Ibid.,quoting Ratanlal and Dhirajlal, Law of torts
- (1932) A.C. 562.
- A.I.R. 1997 Mad 26
- 1938 1 All E.R. 522
- A.I.R.1974 Orissa 207
- A.I.R. 1966 S.C. 1750
- III (1996) C.P.J. 441 (Karnataka SCDRC
- 1996 A.C.J. 505 (S.C.)
- A.I.R. 1983 Orissa 203
- A.I.R. 1992 Pat. 109.
- ( 1951) 1 Lloyd s Rep 271
Authentication No: JL118963593626-08-0721
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