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NEGLIGENCE

ABHINAV KAPOOR
IV Semester
Section A
THE MODERN TORT OF NEGLIGENCE
• A duty is imposed on a person by law to act
with care towards others. If this duty exists
and there is a failure to act carefully and
another suffers loss, then the tort of
negligence is committed.
• Negligence is an unintentional tort.
• Occurs when someone suffers injury because
of the defendant’s failure to comply with a
legal duty.
INGREDIENTS OF TORT OF
NEGLIGENCE
To be successful in a negligence lawsuit, the
plaintiff must prove that:
1. The defendant owed a duty of care to the
plaintiff
2. The defendant breached the duty of care
3. The plaintiff suffered injury
4. The defendant’s negligent act caused the
plaintiff’s injury it must be shown that
the harm was not too remote.
BUT THE TWO MAJOR INGREDIENTS
ARE:-

There is a Legal duty of


care.
And breach of duty is there.
DUTY OF CARE
• A duty of care was originally established by applying Lord Aitkin's
“Neighbor” Test from: Donoghue v Stevenson (1932) AC 562.
– Ms Donoghue drank a bottle of ginger beer, manufactured by
Stevenson. The bottle contained the decomposed remains of a
snail which were not and could not be detected until the greater
part of the contents of the bottle had been consumed. As a
result she suffered from shock and severe gastro enteritis.
– The case is that Stevenson as the manufacturers of an article
intended for consumption and contained in a receptacle which
prevented inspection owed a duty to her as consumer of the
article to take care that there was no noxious element in the
goods, that they neglected such duty and are consequently
liable for any damage caused by such neglect.
SITUATIONS IN WHICH A DUTY
OF CARE APPLIES
 Supplier of goods or services – to persons
being supplied
 Local councils – e.g. to persons requiring
zoning information
 Solicitor holding will – to executor named in
will
 Dog owners – to people who may be bitten
BREACH OF DUTY
 If a person owes some duty of care towards the other
person and commits the breach of that duty, he is said
to have committed negligence.
 There is a standard and a degree of care on the part of
the person who is required to act like a prudent and
reasonable man.

Where there is greater risk ,there is greater care.


A person carrying a loaded gun is expected to take more
precautions than a person carrying an unloaded gun.
In surrender shetty vs. sanjiva rao,
it has been held that the bus driver has more responsibility
when in a school zone and should have control over the
speed of the vehicle so as to stop immediately when
noticed.
THE TEST
 To test if there has been a breach of the duty of
care, a court asks, “What would a reasonable man
have done in that situation?”
 It is an objective test in which the behavior of the
defendant is compared with the behavior of an
ordinary person in ordinary circumstances.
 The defendant is expected to have the same
general knowledge and understanding of the risks
as the reasonable person
 It also makes no difference if the defendant is
actually more clever or more knowledgeable than
the reasonable person
THE TEST
 For example, if a motorist drove his car very
quickly on an icy road and hit another car
because he was unable to stop in time, the
court would ask what a reasonable person
would think and how they would behave in
that situation
RES IPSA LOQUITOR
• The maxim “res ipsa loquitor”is a (Latin maxim) – the thing speaks
for itself
• Res ipsa loquitor is not rule of law but the rule of evidence. As a
rule if the cause of negligence is unknown and a plaint is filed the
action may be rejected based on no direct evidence. However,
some cases are peculiar in nature and have evidence, which does
not require explanation and speaks for itself clearly regarding the
unambiguous nature of the negligent act.
• These cases are under the purview of “res ipsa loquitor” require
the defendant to prove completely that he took all precautions and
reasonable care in order to avoid the resulted damages and that
the damages did not occur due to his act.
• In order to invoke applicability of the maxim, three essential
conditions are necessary:
1. The occurrence of negligence was unforeseen/ unexpected;
2. The negligence in general does not happen unless there is lack
of care resulting in damages;
3. The defendant and only the defendant is liable for
negligence.
E.g. In the case pillutla vs. gk Kumar,
the plaintiffs husband was relaxing in the
premises of his house when suddenly a portion
under construction fell upon him resulting in
his death. the principle of res ipsa liquitor was
applied, resulting in negligence and the
defendant was held liable.
CRIMINAL LIABILITY FOR MEDICAL
NEGLIGENCE
• The standard of care which is required from a medical
practitioner as laid down by McNair J in:-
• Bolam v Friern Hospital Management
Committee (1957)1 WLR 582-
– “ the test is the standard of the ordinary skilled man
exercising and professing to have that special skill. A man
need not possess expert skill, it is well established law that it
is sufficient if he exercises the ordinary skill of an ordinary
competent man exercising that particular article.”
• In Dr. Suresh Gupta vs. Govt of NCT of Delhi AIR
(2004) SC 4091,
– it was held that where a patient dies due to negligent medical
treatment of the doctor ,the doctor can be made liable in civil
law for paying compensation and damages in tort and at the
same time, if the degree of negligence is so gross and his act
was reckless as to endanger the life of the patient, he would
also be made criminally liable for offence under Section 304 A
of IPC.( reliance placed on R v Adomako (1994) (3)All ER 79).