The term Negligence is derived from the Latin word negligentia, which means ‘failing to pick up’. Generally, negligence means the act of being heedless (careless). We are very much aware of the fact that the majority of things are based on English Law. Hence, the term Negligence as well. The law relating to negligence is adopted and modified by the courts of India on the principles of justice, equity, and good conscience.
Definition of Negligence
According to Winfield and Jolowicz, Negligence is the breach of a legal duty of care by the plaintiff which results in undesired damage to the plaintiff.
In Blyth v. Birmingham Water Works Co, Negligence was identified as the exclusion/omission by a reasonable man to do something or doing something which a prudent or reasonable man would not do.
Z, An owner of a big dog requests his friend X to take care of the dog while he is away. X leaves the dog unattended that attacks a passerby badly injuring him. Here we can say that the act occurred due to the negligence of X.
Generally, the area of liability in tort is identified by the number of damages a party has caused. Consequently, in criminal law, the area of liability is identified by the amount and degree of negligence.
Essentials of negligence
Commit the tort of negligence; one has to fulfill 6 main essentials. After that only, an act will be categorized as negligence–
1) Duty of Care
Every person owes a duty of care, towards another while executing an action. In negligence, the duty is legal in nature. It can neither be illegal nor unlawful. Also not in nature of moral, ethical, or religious nature.
In the case of Stansbele vs Troman(1948), A decorator was occupied carrying out decorations in a house. Soon after The decorator left the house without locking the doors or informing anyone. During his absence, a thief entered the house and stole some property the value of which the owner of the house claimed from the decorator. It was observed by the court that the decorator. Because he was failed to fulfill his duty of care and negligently leaves the house open.
2) The Duty towards the plaintiff
A duty takes place when the law identifies a relationship between the plaintiff and the defendant and demands from the defendant to act in a certain manner toward the plaintiff. It is not sufficient that the defendant owes a duty of care towards the plaintiff but the judge has to identify the same.
The case of Donoghue v. Stevenson (1932) has enlarged the principle that every individual holds a duty of care to our neighbor or someone we could reasonably expect to be affected by our acts or omissions. It was observed by the court that, notwithstanding with fact that no contract existed between the manufacturer and the person suffering the damage. An action for negligence could succeed since the plaintiff was successful in her claim that hat she was entitled to a duty of care even though the defective good i.e., a bottle of ginger beer with a snail in it was bought, not by herself, but by her friend.
3) Breach of Duty to take care
While proving, it’s not enough for the plaintiff to prove that the defendant owed him a duty of care. With that, he has to establish that the defendant breached his duty towards the plaintiff. And the breach caused by failing to exercise reasonable care in fulfilling the duty. In other words, it means non-observance of a standard of care.
4) Actual cause or cause in fact
In this scenario, the plaintiff holds the burden of proof. He has to prove that defendant violates his duty, which causes harm to the plaintiff. For example, When a car hits a bike, the car driver’s actions are the actual cause of the accident.
5) Proximate cause
Proximate cause means “legal cause”. The cause that the law identifies as the primary cause of the harm. It may not be the first event that set in motion a sequence of events that led to an injury, and it may not be the very last event before the injury occurs. Instead, it is an action that produced foreseeable consequences without intervention from anyone else. A defendant in a negligence case is only responsible for those damages that the defendant could have foreseen through his actions.
6) Consequential harm to the plaintiff
Proving that the defendant fails to exercise reasonable care is not enough. The plaintiff must prove that the failure of the defendant caused injury to him. We can categorize the harm/injury into the following classes:
- Bodily injury
- Harm to the reputation
- Harm to the property
- The loss to the finance
- Mental injury
The defendant has to compensate the plaintiff when he proves such harm.
In the case of Joseph vs Dr. George Moonjely(1994) The Kerala high court awarded damages amounting to Rs 1,60,000 against a surgeon for performing an operation on a 24-year-old girl without following proper medical procedures and not even administering local anesthesia.
In terms of negligence, one must pay due to care towards the other and has to fulfill the proximate cause. The burden of proof lies on the plaintiff to prove that defendant cause him injury. Also, the injury gets identified by the court as well.
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