Authored By: Zoha Bilal
Pakistan College of Law
Negligence in tort is a legal wrong occurring when a party fails to exercise reasonable care, causing unintentional harm to another. It is derived from a latin word “negligentia”, which means failure to pick up. Hence, negligence is failure to do something which a reasonable person would do. Negligence is the most common tort in India and other common law countries. It is about carelessness and not intentional harm. If a careless act caused harm or damage to another person which could have been foreseen , then the person is liable. Some of the many example we see in daily life is negligence in driving, surgery, and construction.
Blyth v Birmingham Waterworks Co (1856) 11 Ex 781 (Exch)
Judge Baron Alderson in this case gave the leading judgement with definition that will help us better understand the topic of the article, “ negligence is a 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 not or doing something which a reasonable and prudent man would not do.”
Maxim for negligence
“Res Ipsa Loquitur”, which means the thing speaks for itself.
Framework of tort
India has no “Negligence Act”. It derives its power from three source which are common law, Indian court cases and specific acts etc. But there are some Indian laws that mentions negligence
- Indian penal code 1860, s304A
Jail up to two years if rash or negligent act causes death.
- Motor Vehicles Act 1988, s166
Claims compensation for accident due to drivers negligence.
- Constitution of India article 21 states that state can be liable if it’s negligence violates right to life.
Furthermore to win a case if negligence in India, you must prove duty of care, breach of duty of care, and consequential damage.
- Duty of care
It is an essential ingredient of tort of negligence unless such duty is established, no case of actionable negligence could arise
Donoghue v Stevenson AC 562 (HL) [1932]
Lord Atkin established “neighbour principle”
“ 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 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 directing my mind to the acts or omissions which are called in question.”
- Breach of duty to take care
The plaintiff must prove that the defendant has committed a breach of duty, to take care, or he failed to perform that duty. The conduct of a reasonable man is standard of care which would determine whether there was a breach of duty to take care on the part of plaintiff.
Nettleship v Weston QB 691 (CA)
Lord dewing
“It was held that defendant although a learned driver, would be judged by the standard of the average competent driver; the learned driver may be doing his best, is not good enough, he must drive in as good manner as a driver of skill, experience, and care.”
- Consequential damage
The plaintiff must prove that breach of duty to take care by the defendant has caused harm and damage to the plaintiff and that the damage caused to the plaintiff was the result of breach of duty to take care on the part of the defendant.
Byrne v Boadle (1863) 2 H&C 722 (Exch)
“There are certain cases of which it maybe said (Res Ipsa Loquitur) and this seems one of them. The only evidence put in by either party was by the plaintiff that he was injured by a barrel of flour which had fallen from the window in the defendant’s warehouse, it was held that the facts of the accident having occurred was the evidence of negligence.”
Exceptions of the Law of Negligence
- Act of God
If the act complained of was a direct , violent, sudden and irresistible act of nature no damages can be recovered.
- Wrongful act of a third party
The wrongful act of a third party, is also an exception to the law of negligence.
Defences in an action for negligence
- Vis major
Vis major is such a direct and sudden act of nature as could not, by any amount of human foresight and intelligence, have been foreseen or could not have been avoided.
- Inevitable accident
The second defence in an action for negligence is that of inevitable accident.
- Contributory Negligence
The third defence to an action for negligence is that of plaintiff’s own contributory Negligence that is negligence in avoiding the consequences which result from the
Contributory Negligence
A plaintiff’s own negligence which played a part in causing the plaintiff’s injury and that is significant enough to bar plaintiff from recovering damages. It is the fault of the claimant in the very occurrence of the accident or it is one failure to avoid getting hurt by the defendant.
Jones v Livox Quarries Ltd QB 608 (CA)
“A person is guilty of contributory Negligence if he ought reasonably to have foreseen that if he did not act as a reasonable and prudent man, he might hurt himself and in his reckoning he must take into account the possibility of others being careless
Maxim
“In Pari Delicto Potior Est Conditio Defendantis” which means when both the parties are equal to blame the condition of defendant is better.
Historical background
Contributory Negligence as a defence before 1945 was a complete or full defence.
Froom v Butcher QB 286 (CA)
“Plaintiffs car was in collision with defendants car due to the Negligence of the defendant. The plaintiff was not wearing a seat belt at the time of the accident. The defendant raised the defence of contributory negligence and proved that plaintiff injuries were worse then they would have been had he wearing the seat belt. The court held that the damages which should be awarded to the plaintiff should be reduced by 20% on account of his contributory negligence. “
Exceptions for Contributory Negligence
- Last opportunity case
Cases where the negligence of the plaintiff was prior in time and the negligence of the defendant was subsequent in time
Davies v Mann (1842) 10 M&W 546 (Exch)
“Defendant was coming on horse cart and ran over the donkey. The plaintiff proved be had the last opportunity to avoid the accident.”
- Alternative Danger case
Cases where plaintiff acted under agony of movement in a situation arising from negligence of the defendant and resultantly the plaintiff took a wrong decision.
Branton v Osborne, Genette & Co KB 234 (CA)
“A couple went to shopping and husband was standing beneath the skylight, A piece of glass fell down and the wife pushed the husband and got injured in the process.”
- Choice of Evil case
Cases where negligence of defendant created the dilemma for plaintiff who selected a wrong choice
Jhons v Boyce (1816) 1 Stark 493 (NP)
“A person was riding in a horse cart along with other members, the coupling rein was broken and the plaintiff thought it is going to crash so he jump out. The Contributory Negligence was not accepted here”.
- Rescue of Third Person cases
Cases where plaintiff suffers damage in his attempt to rescue the life of a third person who was in danger due to the negligence of the defendant.
Haynes v Harwood KB 146 (CA)
“The kids were playing, at one side there was police and on another side was the horse cart. The horse became wild and the police officer tried to save the children and got injured, the court held the rescue of third person will always be a exception to contributory negligence”
How Negligence and Contributory Negligence differs from each other?
- First of all there is a major difference of definition negligence is a breach of legal duty of care that causes damage to another party, requiring duty, breach, and consequential damage. While contributory negligence is a defence used to show that the plaintiff failed to act reasonably, contributing to their own damage.
- Negligence identities the defendant’s liability while contributory negligence is used to reduce or lower the defendant’s liability.
- If a defendant is proved to be negligent, they are liable for damages. Whereas if a plaintiff is found even 1% at fault then they are completely barred from recovering any damages.
How it’s awareness can be spread
Most of the people don’t know their rights and how a helmet or a seat belt can conclude to contributory negligence, so what need to be done is that students should get tutorial classes for their rights in an accident which should cover negligence basics and impact of use or no use of helmet/seatbelt. Similarly in hospitals the human life is something which can’t be taken for granted and negligence in this is not acceptable. An article medical negligence, Indian legal perspective also provide awareness for medical negligence.
Publicity of the contributory negligence rules through government ads could change behaviour, and can help establish a low road rage accident. The law of negligence and Contributory Negligence can only help Indian society if people know it exists. The legal tool for it is sharp but victims never pick it up due to lack of awareness.
Is the wrongdoers know that the victims would not sue the safety of the departments would never improve, the courts don’t help the poor becomes true because people never enter the courts they just demand justice on the roads.
Hence, we can say that it is necessary to prove all the ingredients. Res Ipsa Loquitur is used by the courts when a negligent cannot be explained. It is how people get damages for injuries, crashes, medical mistakes, defective items, or unsafe constructions setting behaviour standards and filling the gaps left by statutes. While contributory negligence ensures fairness between all the parties and stops the liability from being unfair when the victims also messes up. Without contributory negligence plaintiffs will get full damages from slightly careless defendants resulting in the miscarriage of justice.
