Negligence
Negligence is
a failure to care for someone like that a reasonably prudent person would
exercise in similar circumstances. It is a non intentional tort and has four
elements:-
Duty of Care
Breach of Duty
Causation
Injury
Duty of Care: It is the first element of negligence
that the plaintiff must prove to establish negligence. Duty of care is nothing
but the duty owed by the plaintiff towards the defendant. Leading Case on ‘duty
of care’ is Donoghue v. Stevenson ([1932] AC 562). It defined duty of care as
the duty to take reasonable care to avoid acts or omissions which one can
reasonably foresee and would be likely to injure our neighbour. He defined
neighbours as persons who are so closely and directly affected by plaintiff’s
act that he/she ought reasonably to have them in contemplation as being so
affected when he/she is directing his mind to the acts or omissions which are
called in question.
Caparo Industries plc v Dickman ([1990] UKHL 2) is another
leading English tort law case on the test for a duty of care. It prescribes a
“three-fold test” to check if duty of care to arise: Harm must be reasonably
foreseeable, The parties must be in a relationship of proximity, It must be
fair, just and reasonable to impose liability.
Another case to illustrate the concept is Home Office v
Dorset Yacht Co Ltd [1970] AC 1004. In this case the defendants were jail
authority supervising offenders. The offenders were serving their time by doing
some work. The offenders were left unattended by the prison authorities which
lead to seven of them escape. These offenders then stole a boat which collided
with a Yacht owned by the plaintiff. It was held that the Home Office owed a
duty of care for their omission as they were in a position of control over the
3rd party who caused the damage and it was foreseeable that harm would result
from their inaction.
Note: The landowner owes no ‘duty of care to a trespasser
but from willful injury. They owe a reasonable ‘duty of care’ towards invitee
and licensee.
Breach of Duty is the failure to maintain the required
standard of care. In order to determine whether there has been breach of duty
one must check the following: the importance of the object to be attained, the
magnitude of the risk, the amount of consideration for which services, etc. are
offered Ordinary Prudence Test – Plaintiff must prove that Defendant
acted/omitted to do something, which a “reasonable person of ordinary prudence”
would, or would not have done (Blyth v Birmingham Waterworks).
Klaus Mittelbachert v. East India Hotels Ltd . (1999
ACJ 287) – The question of liability of a five star hotel arose to a visitor,
who got seriously injured when he took a dive in the swimming pool. It was
observed that there is no difference between a five star hotel owner and
insurer so far as the safety of the guests is concerned. It was also observed, a
five star hotel charging high prices from its guests owes a high degree of care
as regards quality and safety of its structure and services it offers and makes
available.
Kerala State Electricity Board v. Suresh Kumar (AIR 1986
Ker 72) – A minor boy came in contact with overhead electric wire which had
sagged to 3 feet above the ground, got electrocuted thereby and received burn
injuries. The Electricity Board had a duty to keep the overhead wire 15 feet
above the ground. The Board was held liable for the breach of its statutory
duty.
Causation – It is the second element required to establish
negligence. Causation is demonstration of the link between the plaintiff’s
injury and defendant’s act which caused the injury. In order to establish
negligence there must be proximity in time and space between the defendant’s
act and injury. The injury must be foreseeable too. Causation actually has two
components: Actual cause (also called “but for” cause) Proximate (also known as
“legal” cause) A famous English Case Law for ‘But for Cause’ is Robinson v Post
Office [(1974) 1 WLR 1176]. In this case the plaintiff fell down staircase as
they were slippery and was not cleaned. The plaintiff then visited a doctor who
carelessly treated him leading to plaintiff fall sick. This lead to plaintiff
suing the defendant arguing but for he had not fallen he wouldn’t have got this
disease. The court accepted plaintiff’s reasoning and provided damages.
In Scott v. Shepherd [96 Eng. Rep. 525 (K.B. 1773)]
plaintiff threw a lighted squib in a crowded marketplace. The squid was thrown
around by until it hit defendant burning his eye. The Court held that the
plaintiff when he threw the lighted squid had the knowledge that it is likely
to do some mischief and therefore there was proximity between the plaintiff and
the defendant. Defendant was accordingly held liable.
Note: In strict liability cases there is no need to
show causation.
Injury is the legal damage suffered by the plaintiff due to
defendant’s act or omission. The plaintiff has also to show that the damage
thus caused is not too remote a consequence of the defendant’s negligence.
Damnum sine injuria – Damage without wrongful act;
damage or injury inflicted without any act of injustice; loss or harm for which
there is no legal remedy. It is also termed damnum absque injuria
Gloucester Grammar School Case ((1411), Y. B. 11 Hen. 4, f.
47, pi. 19)- The defendant, a schoolmaster, set up a rival school to that of
the plaintiffs. Because of the competition, the plaintiffs had to reduce their
fees from 40 pence to 12 pence per scholar per quarter. It was held that the
plaintiffs had no remedy for the loss thus suffered by them.
Injuria sine damno– This maxim means injury without damage.
Wherever there is an invasion of a legal right, the person in whom the right is
vested is entitled to bring an action and may be awarded damages although he
has suffered no actual damage. Thus, the act of trespassing upon another’s land
is actionable even though it has done the plaintiff not the slightest
harm.
Ashby v. White [(1703) 92 ER 126 ] – In this case, the
plaintiff was not allowed to cast his vote despite him being legally allowed to
do so. After that, the candidate whom the plaintiff wanted to cast vote for
also won but the plaintiff’s right to cast was violated and hence this was
accepted as a lawful loss.
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