Negligence is the breach of legal duty to take care which results in damage, undesired by the defendant to the plaintiff (Winfield).
Negligence is an independent tort. Its essentials are:
1. Duty to take care.
The leading case is Donoghue V. Stevenson, M, the manufac-turer had sold ginger-beer in an opaque bottle to a retail seller R. R sold it to A who gave a treat with it to a young woman P. P consumed the ginger-beer, but found in the bottle a dead snail. This seriously affected her and she became ill. She sued M, the manufacturer. In fact there was no contractual duty of M to P, but the House of Lords, held that M was liable. Lord Atkin’s judgment is a classic. He held ‘You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour, who then in law is my neighbour ? the answere seems to be, Persons who are so closely and directly affected by my act that ought reasonably to have them in contemplation as being so affected by my acts or omissions“.
It was the duty of the manufacturer to take care that the opaque bottle did not contain noxious matter. It was held that the manufacturer was liable.
This case is a milestone and the above principle is regarded as the statement of law. The courts follow this, unless there are strong reasons to deviate from it.
The “standard of care” as applied by the courts, is the standard of a reasonable man. The care, the skill and the diligence of the person, must be that of an ordinary prudent man under the circumstances.
In Bolton V. Stone, D, a person who was on the roadside, was injured by a cricket-ball hit by the player from the field which was about 100 yards away from the road. There were one or two such rare occasions in the past. The court held that the defendants (the members of the club) were not liable. The hit was so exceptional that no prudent man would have foreseen. Further, it was too remote and no reasonable man would have anticipated.
2. There must be a breach of duty.
The second essential condition is that there must be a breach of duty. This is judged with reference to a “reasonable man”. According to Alderson J, “Negligence is (i) the omission to do something which a reasonable man would do, (guided by the circumstances on hand) or (ii) doing something which a prudent man would not do”.
This is the objective standard of a reasonable man. It is the application of “foresee-ability test” i.e. whether a reasonable man would have foreseen.
Roe V. Minister of Health : In 1947. Dr. G. gave to R a spinal anesthetic to conduct an operation. The anesthetic which was in a ampoule, had been stored in phenol as usual. But due to an “invisible crack” in the ampoule, phenol had entered and in consequence, the patient R became paralysed. Dr. G had taken all care as a prudent surgeon would have taken and he was not aware of the crack in the ampoule. Held, Dr. G was not liable.
The medical literature on the subject was consulted as the set standard and Dr. G was held not negligent.
3. Consequent damage.
There must be the injury to the plaintiff as a direct consequence of the negligence of the defendant. It must not be too remote. Theleading cases are (i) Donoughue V. Stevenson (ii) Bolton V. Stone (iii) The wagon Mound case etc. Ch. 16-2 Contributory Negligence : Meaning.
This is a defence open to the defendant, in an action for negli-gence. This is based on the principle that no doubt, the defendant is, in fact negligent but the plaintiff also has contributed his negligence, and hence the plaintiff should not be allowed to take advantage of his own tort of negligence. The maxim is “in pari delicto potior est conditio defendatis” (If both parties are equally to blame, the condition of defendant is to be preferred). Both are authors responsible for the injury. Of course, the burden of proof lies on the defendant to establish contributory negligence of the plaintiff.
The question in each case is : who caused the accident ?
Da vies V. Mann : P had tied the forefeet of his donkey and had let loose on the highway. D who was going at a smartish pace in his wagon (horse driven), ran over and killed the donkey. P sued D. It was held that D had the last opportunity to avoid the accident. Hence, D was liable.
Butterfieid V. Forrestor : D wrongfully obstructed the high-way by putting a pole across the road. P who was riding violently saw the pole from a distance of about 100 ft. away, but came against the pole and was thrown over by the pole and was injured. It was held that D was not liable. The reason : If P had exercised due care, he could have avoided the accident, this decision has been modified later in Davies V. Mann.
This is the rule now in operation.
In British India Electric Co. V. Loach : The rule was applied to constructive last opportunity. In this case, P, a wagon driver was driving negligently on the level crossing. D’s driver who was driving a tram came at a fast speed, saw the wagon on the tramline, applied the brakes. But, as the brakes failed, he dashed against P and P was killed. P’s representative sued D.
It was found that the brakes were defective and.hence D had the last opportunity. If the brakes were in order, he could have averted the accident. He has failed to do so and hence, D was held liable.
As this rule was also not free from doubt, the Parliament enacted in England the Law Reforms Act 1945. It provides that when both P and D are at fault the claim of P will not be defeated, but would be reduced to such extent as the court thinks just and equitable.
This is also called as the dilemma principle. Such a situation arises, when the plaintiff, P is put in a position of imminent personal danger by the wrong doing of the defendant. In order to avoid the danger, P suffers injury. In such cases, D is liable.
Jones V. Boyce : D, a Coach-driver was driving with P, so negligently and with so much speed that P was alarmed. Going down the hill, the coach’s coupling gave way ; It struck a post and was about to be turned down. P, to save himself jumped out and was injured. He sued D. Held D liable.
If P had not jumped out, he would not have been injured, as the coach came to rest later without any trouble. Even then D was held liable as he had created a dilemma to P.
This is part of the rule of evidence. In cases of negligence, the burden of proving negligence is on the plaintiff, but Res ipsa loquitur is an exception. This is a case where the event “tells its own story” clearly and speaks to the defendant to disprove. Eg. the presence of a pair of scissors in the stomach of a patient P, 2 days after the operation is over, or the presence of a stone in a loaf of bread, tells its own story. The court presumes the negligence of the Defendant.
Byrne V. Boadle : A barrel of flour rolled out of an open door-way of the upper floor of the godown of D, and fell on P who was going on the street. The burden was on D to prove that he was not negligent. Held, D liable.
In State of Punjab V. M/s Modern Cultivators, a canal was under the care of the State. Due to its negligence there was a breach and water flooded the fields of P. P suffered losses and sued the State. Held, the State was liable. Res ipsa loquitur was applied.