Meaning: Negligence means mere carelessness in everyday usage. In legal a failure to take care to avoid causing injury or loss to another person. It is a situation in which a person acts in a careless (or in a negligent) manner which results in someone getting hurt and injury is caused. It may be also described as a failure to take adequate precautions in a given circumstance resulting to harm a person.

Defences available in a suit of Negligence

1) Vis Major (Act of God)

An act of God is a demonstration of forces of nature that are usually not excepted and anticipated in usual circumstances. It is the loss arising from the loss of natural forces such as exceptionally heavy rainfall, earthquake, storms, volcanoes etc.

Case Law: Blyth v. Birmingham Water Works Co

The defendants had installed water mains along the street with hydrants located at various points. One of the hydrants across from Plaintiff’s house developed a leak as a result of exceedingly cold temperatures and caused water damage to the house. Plaintiff sued for negligence. No evidence was proved on the part of the defendant as he regularly took took precautions against cold weather, and that only due to an unforeseeably cold winter did any damage occur. This was properly characterized as an accident, not as negligence.

It was held that though frost is a natural phenomenon, the occurrence of an unforeseen severe frost can be attributed to an act of God, thus the relieving the defendants of any liability.

2) Inevitable Accidents

An act which could not be possibly prevented by ordinary care, caution & skill. It is an accident which cannot be physically unavoidable.

Case Law: Stanley v. Powell (1891)

Powell, the defendant who was the member of a shooting party, fired at a pleasant but a shot from his gun glanced off a tree and accidentally wounded Stanley the plaintiff, another member of the party. It was held that the injury was accidental and therefore the defence of inevitable accident was available and therefore the defendant was not held liable.

3) Contributory Negligence

It means failure of the plaintiff take reasonable care and caution and contribute in the defendant’s negligence or wrongful act. In this case the plaintiff is the author of his own wrong. It is based on the maxim volenti non fit iniuria which states that if someone willingly places themselves in a position which might result in harm, they are not entitled to claim for damages caused by such harm.

Case law: HANSRAJ VS TRAM CO. 35 BOM. 478

A failed attempt to board a moving tramcar that resulted in injury. The man filed a lawsuit against the corporation. It was said that if the man had boarded the tramcar while it was still moving, he would have been able to gain a solid grasp on the handlebar and sit himself more readily. The firm was found not to be at fault.

4) Assumption of Risk

When a person voluntarily enters a dangerous situation inspite of being aware of the risk involved is assumption of risk. The reason behind this defence is that the plaintiff voluntarily enters into a risky situation who cannot later sue if injured. Voluntary means the plaintiff had the choice to avoid the risk. If the person had no choice to avoid the dangerous activity then he cannot have assumed the risk.

For example, in a 2007 personal injury lawsuit brought by a student against a community college, a 40-year-old student successfully sued the school for injuries she suffered in a backpacking class.  The class was mandatory as part of the college’s physical education requirement.  The court held that because she was new to backpacking, she was in the position of following the directions of the gym instructor, her superior, and thus did not assume the risk voluntarily.

Negligence as a tort has evolved from the English law and accepted by the Indian law as a substantially important tort. Also, the defences in a suit for negligence can be used by the defendant to defend himself from a suit issued by the plaintiff.

REFERENCES

• indiankanoon.org
• blog.ipleaders.in
• lawtimesjournal.in

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