In general usage, the word ‘negligence’ denotes mere carelessness. In a legal sense, it signifies a failure to exercise the standard of care which the doer as a reasonable man should have exercised in the circumstances. The term negligence means where a person has a duty to take care and the care is not taken resulting in injury to another. In other words, infliction of an injury or damage as a result of failure to take care is called negligence. Hence, negligence is the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation. For example, it is the duty of the municipality to make sure that the area which comes under them is clean. And if someone is facing any kind of problem in that area due to inappropriate surroundings then that person can sue the municipality under the act of negligence.
Essentials of negligence
- Duty to take care
A person is supposed to behave in a reasonable manner but if he deviates from acting as a reasonable person then he is said to be careless. But, for every careless act, a man cannot be held responsible in law. There should not be a moral, social or religious duty on the part of the defendant. In Ishwar Devi v. Union of India, Sham Lal Malik, the deceased, boarded one D.T.U. the bus when the same bus arrived at the bus stop. Just when he had placed his foot on the footboard and had not yet gone in, the conductor in a very great speed rang the bell and the driver started the bus. The driver attempted to overtake another stationary bus so closely that the person got squeezed between the two buses and got serious injuries which ultimately resulted in his death. In an action by the widow of that person, it was held that both the driver and the conductor were rash and negligent in not taking proper care of the safety of the passengers. It was observed that “the safety of the public who travel by public conveyances like the bus in question is the primary concern of the conductor and the driver, who are in charge of and control of public conveyances. When the conductor saw that the deceased, Sham Lal, was boarding the bus and was still on the footboard, he should not have given the bell for the starting of the bus but should have waited till Sham Lai got inside the bus. To have given the bell and thus signaled the driver to start the bus is nothing but rashness and negligence on the part of the conductor. The conduct of the driver also was rash and negligent, in that he drove the offending bus so closely near the stationary bus that there was not sufficient clearance between the two buses and the deceased got squeezed or sandwiched between the two buses.”
No liability when injury not foreseeable
There is no liability upon the defendant if the harm is not foreseeable. In Cates v. Mongini Bros., the plaintiff, a visitor to a restaurant was injured by the falling of a ceiling fan on her. The reason behind the falling of the fan was a latent defect in the metal of the suspension rod of the fan. This defect could not have been discovered by a reasonable man. In an action against the defendants, the owners of the restaurant it was held that since the harm was not foreseeable, they were not negligent and, therefore, were not liable for the loss of the plaintiff.
Reasonable foreseeability does not mean the remote possibility
To establish negligence, it is not enough to prove that the injury was foreseeable, but a reasonable possibility of the injury has to be shown because “foreseeability does not include any idea of likelihood at all.” The duty is to guard against probabilities rather than bare possibilities. In Fardon v. Harcourt-Rivington, the defendant parked his car by the roadside and left a dog in it. The dog jumped about and shattered a glass panel. A fragment from this glass injured the plaintiff while he was walking. It was held that the accident, being very unlikely to happen, there was no negligence in not taking a precaution against it and, therefore, the defendant was not liable.
- Breach of such duty to take care
Breach of such duty means that the defendant must not have taken due care. If the wrongdoer takes reasonable care, then there is no negligence on the part of the wrongdoer. In Latimer v. A.E.C. Ltd., due to exceptionally heavy rainfall, the respondent’s factory was flooded with water. Some greasy substance got mixed up with water. After the water drained away, an oily film remained on top of the floor and the floor surface becoming slippery. Respondent spread all the available sawdust on the floors to get rid of the slippery film but some areas remained uncovered, due to lack of further supplies of sawdust. The appellant, who was an employee in the respondent’s factory, slipped on one such oily patch and became injured. He sued the defendants for negligence and contended that the defendants should have closed down the factory as a precaution until the danger had vanished. It was held that the risk created by slippery floor was not so great as to justify the precaution of closing down the factory with over four thousand workmen. The respondents had acted like prudent man and, therefore, they were not liable for negligence.
- Actual damage
Actual damage is required to be proved when the case of negligence arises. In case of negligence, the action is brought against the defendant, when the plaintiff proves special damage to him. But at the same time, the plaintiff must have also taken reasonable care for his own safety.
Proof of negligence
Res Ipsa Loquiter
It meant that the things speak for themselves i.e., that facts and circumstances which the plaintiff has proved establish a prima facie case of negligence against the defendant. The crux of the matter is that the accident should tell its own story and make a picture of negligence on the part of the defendant. It means that the mere occurrence of some type of accident is sufficient to imply negligence. It is the duty of the plaintiff to prove that the defendant was negligent.
- A person was going along a highway and he got injured by the fall of a barrel from out of the window of the defendant’s warehouse.
- The plaintiff was injured from a cinema banner that fell from the defendant’s premises when he was walking on the road.
- Where an employee was killed by an explosion of the gas apparatus in the defendant’s factory.
- Where a surgeon left a towel inside the stomach of a patient after an operation;
Defenses for Negligence
- Contributory negligence (both plaintiff and defendant are the contributors)
- Act of god
- Inevitable incident
- I.R. 1969 Delhi 183.
- , at 188-189.
- (1917) 19 Bom. L.R. 778.
- Chapman v. Hoarse, (1961) 108 C.L.R. 112, at 115, per Dixon, C.J.
- (1932) 146 L.T. 391.
- (1953) A.C. 643; Jones v. Barclays Bank, (1949) W.N. 195; Whiteford v. Hunter, (1950) W.N. 533; McCarthy v. Coladiar Ltd., (1951) 2 T.L.R. 1226.
- Byrne v. Boadle, (1863) 2 H&C 732.
- Mahindra Nath v. Mathura Das, AIR 1946 Cal 175.
- Moore v. Fox & Sons, (1956) 1 All ER 182 CA.
- Mohan v. Osborne, (1939) 2 KB 14.
- R.K Bangia