November 21

LAW OF TORT

2012
SUBMITTED BY:M.FAAIZ.ALI

ASSIGNEMNET ON NEGLIGENCE

INDEX S.No 1 2 3 4 5 6 7 8 9 10 11 12 TOPIC NEGLIGENCE MEANING ESSEBTIAL INGREDIENTS DEFENCES FOR NEGLIGENCE CONTRIBUTORY NEGLIGENCE VIS MAJOR OR ACT OF GOD IEVITIABLE ACCIDENT CONSEQUENT DAMAGE Negligence: Legal profession Pg.No 3 3 3 5 5 6 6 7 8 9 9 9

Breach of duty General standard of care GENERAL DAMAGES

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INTRODUCTION
Negligence implies absecnce of intuition to cause harm.It means careless and unreasonable conduct when such conduts causes har to another it becomes actionable in tort. There are two theories about the negligence in law of tort. A. Subjective Theory:- According to this theory negligence denotes state of mind . This theory has been supported by Austin , Salmond and even Winfield. B. Objective theory:- According to objective theory, negligence is a type of conduct and not a particular state of mind. This theory treats negligence as specific tort. This theory has also been recognized by the House of Lords in Donoghue v. Stevenson.

Meaning
Per J. Swayne of U.S Negligence is the failure to do what a reasonable and prudent person would ordinarily have done under the circumstrances of the situation According to Winfield, Negligence as a tort is the breach of a legal duty to the case which results in damage, undesired by the defendant to the plaintiff. From the above definitions there appears to be three essential ingredients of a negligent tort.

ESSEBTIAL INGREDIENTS
1. That the defendant was under a legal duty to take reasonable care towards the plaintiff to avoid the damage. 2. That defendant committed a breach of duty. 3. That due to breach of duty plaintiff suffered damage.

Duty to take care:-To establishnegligence, it is most important to show that there exists some legal duty
and it must be towards the plaintiff. The most important question is that how to determine whether, there is or is not a duty? The first attempt to formulate a principle was made by Brett MR in Heaven v. Pender (1883) II QBD 509. The decision in this case was founded on the principle that a duty to take case did arisewhen the person or

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property of one was in such prosimity to the person or property of another that, if due care was not taken, damage might be done by the one to the other. This case was almost approved by the House of Lords in Donoghue v. Stevenson ,1932 AC, 562, where Lord Atkin laid a very important principle of determining a duty. The brief facts of the above case were that the defendant, a manufacturer of the ginger beer, had sold a sealed and opaque bottle of ginger beer, to a retailer. The retailer sold it to A who had given it to his friend Miss Donoghue. She drank the ginger beer. The bottle contained the decomposed remains of a snail which were not and could not be detected until the greater part of contents of the bottle had been consumed. As a result she alleged that she became seriously ill and sued the manufacturer for negligence. In this case the House of Lord held that although there was no contractual duty on the part of the defendant, but the defendant owed her a duty to take care that the bottle did not contain noxious matter and that he would be liable if that duty was broken. This case was followed by the Judicial committee of the Pivy Council in 1935 in Grant v. Australian kinitting Mills Ltd. And also in an Indian case nmed Mahindra Nath MUkherjee v. Mathuradas chaturbhuj, AIR 1946 Cal. 175.

Breach of Duty:- If a person owes a duty of care and commits a breach of that duty, he is said to have committed negligence. The law requires that standard and degree of case which should have been taken by a reasonable and prudent person is the like circumstrances. Though standard is uniform, the degree of case is not. In fact the degree of case varies directly with the risk involved.The greater the rik the greater the care. For instance, A driver of a car requires greater skills than a driver of a carriage and horse. A person carrying a loaded gun is expected to take more precautions than a person carrying an unloaded gun. While transporting petrol or diesel, greater care is needed than transporting water. IN Surendra Shetty v. Sanjiva Rao, it has held that when the driver is in a school zone, there is a greater responsibility on him to drive the vehicle at a controllable speed. In Shivkar v. Ramnaresh, a young student of 12years of the group of students of a municipal school who went for a picnic, was drowned because the teacher failed to take due care. Thus, the teacher and the municipal corporation were held liable.

Extension of The Rule:- The principle of Donoghue v. Stevenson has been extended to other persons,who have done something active to create the danger viz. repairers, fitters, erectors and assemblers. In Malfroot v. Noxal Ltd. , the husband owned a motorcycle an dhe had employed the defendants to fit a side car to it. After the side car was fitted, the husband was driving the combination with his wife 4|Page

when the side car broke loose and they both were injured. Th court held that both the plaintiffs could recover danages from the fitter(contacter). In Haseldine v. C.A Daw & sons ltd., where a repairer had failed to keep a lift in condition to a third party to do so, was held liable on the ground that he owes a duty to any person by whom that article, repaired by him, is expected to be lawfully used. Burden of proof is an action for neglifence The general rule is that in action of negligence burden of proof is on who has complaint for negligence. He must show that he was injured by an act of omission for which the defendant is liable. The initial burden of making out a prima facie case of negligence against the defendant lies heavily on the plaintiff and once this onus is discharged it will be for the defendant to prove contributory negligence or that the incident was the result of inevitable accident. (K.C Kumaran v. Vallabhdas Vasanji IR 1969Ker 9)

DEFENCES FOR NEGLIGENCE

Most of the defenses depend upon condition which negate tortuous liability, viz. volenti non fit injuria, private defense, statutory authority, act of state and remotness of damage etc. Some of them are mentioned below:a) Contributory negligence. b) Vis major or act of god. c) Inevitiable accident.

CONTRIBUTORY NEGLIGENCE:Whne the plaintiff fails to exercise ordinary care diligence and skill to avoid the consequences of defendants negligence he cannot claim damages. It is based on the maxim volenti non fit injuria and in jine non remota causa sed proxima spectator. Whenevr,the immediate proximate and decisive acuse of damage is the plaintiffs own negligence, he is not entitled to recover. Thus, a man hanging on the footboard and keeping his hand outside the window of moving bus knowing the risk only invites the injury and thus cannot claim damages.

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VIS MAJOR OR ACT OF GOD

Act of god is such a direct, violent, sudden and irresistible act of nature which could not have beend foreseen by any amount of human foresight and, if foreseen, could not have been resisted by any amount of care and skill e.g. storm, tempest, lightenining. In Mahindra Nath Mukhejee v. Mathuradas Chaturbhuj, the Calcutta High Court held that sucha storm cannot be said to be so unexpected that no human foresight would reasonably be expected to anticipate I and cannot be regarded as vis major. The defense of vis major must be the cause causans and not merely cause sine quanon of the damage complained of. It is not necessary that it should be unique, it should have happened for the first time. It is enough that it is extraordinary which could not reasonably anticipated. The mere fact that vis major co-existed or followed on negligence, is no adequate defense. The defendant mus himself have done all that he is bound to do before an act of gof. In Nicholas v. Marsland, the defendant had various artificial lakes on his land which he had maintained with full care. Due to most unusual rainfall, so great that it could not have been anticipated, some of the reservoirs burst and carried away some country barges. The defendant was not held liable as the escape of water was an act of god.

Inevitiable accident
An inevitiable accident is that which is physically unavoidable it does not apply to anything which either party meight have avoided. The defendant must guard against reasonable probabilities but he is not bound to guard against fantastic possibilities. An important case on this point is that of Fardon v. Harcourt revington. The defendant was travelling in a motor ccar with his dog. He parked his car in a street and left his dog inside the shut car. The dog had no vicious propensities and was alwas quite and docile. As the plaintiff passed just by the side of the car, the dog which had been barking and jumping about in the car, smashed a glass panel and a splinter entered into one of the eyes of the plaintiff which had to be removed. The plaintiff sued the defendant for damges but the defendant was held not liable. It was stated that it was an extremely unlikely event. Padmavati v. Dugganaika, Shridhar tewari v. UPSRTC (1987 acj 636) are important case on this point. The Supreme Court of India in this case of S. Vedantacharya V. Highway department of south arcot (1987 ACJ 783) held that accident would amount inevitiable accident only when there is no negligence on the part of the defendant. The maxim : ris ipsa loquitor The rule that it is for the plaintiff to parow negligence of the defendant may cause hardhip to the plaintiff because in many cases it may be impossible for him to kow what precise act or omission lead to his injury or damage. This hardship can be avoided by the application of this maxim Res ipsa loquitor. This maxim is not a principle of liability but a rule of evidence. It means that things speak of itself, i.e. this facts and circumstances which the plaintiff has proved establish a prima facie case of negligence against the defendant. The requirement is that mere happening of the accident should tell its own story and raise the inference of negligence on the part of the defendant. For instance, where a person going along a highway was injured by the fall of bassel from out of the window of the defendants warehouse , 6|Page

or where amotor car injured a person on the foothpath beside a road, or where a surgeon left a towel inside the stomach of a patient after an operation. IN all these case the maxim res ipsa loquitor applies. Winfield after quoting the famous statement of east C.J, in this case of Scot V. London and St. Katherine Docks Co. staed thet there are two requirements of applying the maxim of res ipsa loquitor :a) That the thing causing the damage be under the control of the defendant or his servants and b) That the accident must be such as would not in the ordinary course of things have happened without negligence. In India , the above rule has been applied in several cases. Two of the decision of the Supreme Court deserve special mention viz. state of Punjab V. Moder cultivator (AIR 1965 SC 17) THE Supreme court stated that the defendant , in order to discharge his burden can show that the breach was due to the act of god or due to the act of third party

Consequent Damage
The third ingredient of the tort of negligence is that the plaintiffs damage must have been caused by the defendant breach of duty and not due to any other cause . Even if the damage is caused by the defandents breach of duty, the defendant will not be liable if; This damage is too remote a consequence of it,or It is a case of contributory negligence.

Appliaction of the Doroghue principle

Cloth manufacturerIn an Australian case Grant V. Australian knitting mills Ltd. the pivy council followed the rule laid down in Donoghue V. Stevension and held hat under the circumstances the defendants owed a duty of case towards the plaintiff even though there was no contractual relationship. Donoghue Principle was applied to fitters (Malfroot V. Noxal Ltd.) and repairers (Stennet v. Hancock) also. In brown VT and EC Chotterill, the court held that a reasonable man monumental mason was uder a duty to erect gravestone in such a way that it may not injure the user and hence he was held liable. In all these cases the Judges, contemplated that there existed a duty to take care not only to that person who was the customer but to any person who may suffer by its use. The Donoghues principle has been applied in toto by the Indian court. A few cases are given as under :In P.V.C. Tharakan V. K.Narayanan, a child of few years was hit by a car driven by the second defendant and belonging to the first defendant on a particular road at such a spot where there are shops, resedentail houses heavy vehicular traffic holding the defendant liable, J Krishna Iyer observed that greator care is required while driving on a city road or along a residential street which is crowded and there being shops 7|Page

by the road. Agya Kumar v. P.R transport corp. and Ishwar Devi v. Union of India are also some of the cases in whih vehicle drivers were held liable

Negligance: Legal professionIn England for over a century it has been held that the barristers cannot be sued for breach of professional duty. Swinfen case and Batcelor V. Pattison are on this relevant point. Halsburgs Laws of England states if a barrister acts honestly in the discharge of his duty, he is not liable in action by his client for negligence or for want of skill, discretion or diligence in respect of any act in the conduct of a cause or in setting drafts or in advising By House of Lords in Rondal V. Worsley concept of public policy for non-liability of barrister was introduced. In India section 5 of the legal practitioners (fees) Act, 1926 provides that no legal practitioners who has acted or agreed to act shall, by reason only of being a legal practitioner, be exempt from liability. Thus, in N.Veerappa V. Evelynsquira, the Supreme Court held that an advocate who has been ingaged to act is clearly liable for negligence to his client. The case of Manjeet kaur V. Deol Bus service is also important on this point. Negligance: Medical profession:Every person who enters into a particular profession undertakes to bring to an exercise of it a reasonable degree of care and skill a surgeon is expected to show the care and skill not of an ordinary lay man but of a member of his class. A doctor who has been consulted by a patient owes him certain duties viza duty of care in deciding whether to undertake the case. A duty of care in deciding what treatment to give, and A duty of care in the administration of treatment. A breach of any of these duties gives a right of action for negligence to the patient. Sishir Rajan Shah V. state of Tripura is an important case regarding doctors duty to attend the patient. The presumption of negligence was drawn against a doctors by applying the principle of res ipsa loquitor . Indian Medical Association v. V.P Shantha (AIR 1996 SC 550)

In state of Punjab v. Shivram (AIR 2005 SC 3280) , the court held that compensation can be awarded only if failure of operation is attributable to the negligence of doctor.

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Breach of duty
In tort law, there can be no liability in negligence unless the plaintiff establishes both that they were owed a duty of care by the defendant, and that there has been a breach of that duty. The defendant is in breach of duty towards the claimant if their conduct fell short of the standard expected under the circumstances Damages in tort are generally awarded to place the plaintiff in the position that would have been taken had the tort not taken place. Damages in tort are quantified under two headings: general damages and special damages. In personal injury claims, damages for compensation are quantified by reference to the severity of the injuries sustained (see below general damages for more details). In non-personal injury claims, for instance, a claim for professional negligence against solicitors, the measure of damages will be assessed by the loss suffered by the client due to the negligent act or omission by the solicitor giving rise to the loss. The loss must be reasonably foreseeable and not too remote. Financial losses are usually simple to quantify but in complex cases which involve loss of pension entitlements and future loss projections, the instructing solicitor will usually employ a specialist expert actuary or accountant to assist with the quantification of the loss.

General standard of care

In order not to breach a duty of care, a defendant must generally meet the standard of a 'reasonable man' as Baron Alderson stated in Blyth v Birmingham Waterworks (1856) 11 Exch 781. A reasonable person can be defined as 'the man on the Clapham omnibus' as Greer LJ explains in Hall v Brooklands Auto-Racing Club (1933) 1 KB 205. Lord Steyn describes the term as 'commuters on the London Underground' (MacFarlane v. Tayside Health Board (1999) 3 WLR). This is an objective standard, based on an average person. It does not require perfection, but takes into account that an average person does not foresee every risk. The average person is not assumed to be flawless, but ordinarily careful and prudent.

General damages General damages, sometimes styled hedonic damages, compensate the plaintiff for the nonmonetary aspects of the specific harm suffered. This is usually termed 'pain, suffering and loss of amenity'. Examples of this include physical or emotional pain and suffering, loss of companionship, loss of consortium, disfigurement, loss of reputation, loss or impairment of mental or physical capacity, loss of enjoyment of life, etc. This is not easily quantifiable, and depends on the individual circumstances of the plaintiff. General damages are generally awarded only in claims brought by individuals, when they have suffered personal harm. Examples would be personal injury (following the tort of negligence by the defendant), or the tort of defamation.

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BIBILOGRAPHY
BOOKS REFFERD
R.K. BANGIA LAW Of TORTS WINFEILD WEBSITES VISITED Du.ac.in Encyclo/findlw.net Wikipedia (only references taken)

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