Negligence, in general, is the breach of duty caused by omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. An action for negligence proceeds upon the idea of an obligation or duty on the part of the defendant to use care, and a breach of it to the plaintiff’s injury.
Negligence is of each civil and criminal wrong. For it to be considered under criminal law planning should exist. In general, it is a legal duty to take care when it was reasonably foreseeable that failure to do so was likely to cause injury and it is not necessary that duty to care will arise out of a contractual obligation.
The law of negligence is really the application of common morality and commonsense to the activities of the common man. If an act is done by a person and is such that he cannot reasonably foresee that he will thereby injure another, he was not liable whether he does the act intentionally or evidently.
‘A manufacturer of an article of food, medicine or the like, sold by him to the distributor in circumstances which prevent the distributor or the ultimate purchaser or consumer
Essentials of negligence
● EXISTENCE OF DUTY TO CARE
It is one of the essentials which is required to make the individual obligated. That is to say, that a man ought to owe an obligation of care to another i.e. no individual can be held at risk for an indiscreet demonstration in the event that he doesn’t owe an obligation of care to another. In any case, the obligation of care ought to be lawful in nature and not of good, moral, religious, etc. By legitimate obligation, it implies that it ought to be legal and not unlawful or illicit. In any case,
what obligation falls under carelessness is an issue. As Aman owes an obligation of care in each demonstration. E.g. If there should be an occurrence of the strike, the tortfeasor owes an obligation of care to the respondent not to hurt him. Be that as it may, this negligent act can’t be described as a careless Negligent act.
In the case, Hedley Byrne&Co Ltd v. Heller&Partners[1964] AC 465 A new duty of care was thrown on the shoulders of the formulation of professionals to take care in reference to those who depend upon them in the formulation of their opinion and advice.
Home office v. Dorset Yacht co. ltd 1970] AC 1004;
Some borstal trainees escaped one night due to negligence of the borstal officers who contrary to the orders were in bed .the trainees caused damage to a yacht, the owner of which sued the home office for damages .a preliminary issue was raised on the facts pleaded, the home officers or its servant owed any duty of care to the owner of the yacht. It was held that causing damage to the yacht by the Borstal trainees ought to have been foreseen by the borstal officers as likely to occur if they failed to exercise proper control and supervision and therefore, the officers prima facie owed a duty of care to the owner of the yacht.
● Breach of duty to care
The plaintiff has next to show that there was a breach of duty, which means failure to observe the expected standard of care. The standard by which to determine whether a person has been guilty of negligence in the conduct of a prudent man in a particular situation. The amount of care may vary to the greatest extent, while the standard itself remains the same. The prudent man is the man who has acquired the skill to do a particular act which he undertakes. E.g. X assigns Y, to care of his office while he is gone. In absence of X, Y
doesn’t bother about the office and leaves it unguarded. After some time, a thief steals an antique wall clock. In, this scenario Y has committed a breach of duty and must compensate X for the loss. The man to whom the duty is assigned should follow ordinary prudence and reasonable skill i.e.
Furthermore, there are two factors that are used in determining the magnitude of risk, which are the following:
• The seriousness of the injury risked – It means that how much serious or grave the injury risked it. If the injury risk is a lot serious then, more standard of care would be maintained. • The likelihood of the injury being – It means how much likely an injury might occur i.e., What are the chances of that injury being done? If the chances are more than, more precautions will be taken to avoid the injury
● Damages suffered on account of breach of duty
This is the final essential which needs to be fulfilled in order to put a tortious act under the ambit of negligence. The cause of action only arises when actual or real damage is suffered. E.g. If X assigns Y, to take care of a rare vase. However, Y shows carelessness, due to which the vase gets broken into pieces. Now, Y will be liable to compensate X for the value of the vase as real damage i.e. actual damage was caused. However, if the damage is minimal no compensation is required. That is, until and unless real damage is done no act can constitute 6 this tort, not even the occurrence of the risk. In this case, the plaintiff was exposed to asbestos in the course of his employment and developed a pleural plaque. Although, there was no actual damage to the lungs due to this. Yet, the chance of life-threatening disease increased in the near future. It was held that as no actual damage took place, the act wasn’t under the tort of negligence.To prove that whether there was an injury or not lies upon the plaintiff i.e. the onus of proof is on the plaintiff. However, there are exceptions to this such as the doctrine of Res Ipsa Loquitur, which means things speak for themselves which is related to Section 106. There are two conditions for the application of this doctrine, which are the following
• The person who is injured is injured by the negligence
• The negligence is not attributed by the injured person himself or some third party If these two conditions are satisfied, then the onus of proof can be shifted from the plaintiff to the defendant.
To prove that whether there was an injury or not lies upon the plaintiff i.e. the onus of proof is on the plaintiff. However, there are exceptions to this such as the doctrine of Res Ipsa Loquitur, which means things speak for themselves which is related to Section 106. There are 2 conditions for the application of this doctrine which are the following
• The person who is injured is injured by the negligence
• The negligence is not attributed to the injured person himself or some third party.
4.Cause In Fact :
Under the conventional guidelines in carelessness cases, an offended party must demonstrate that the litigant’s activities were the real reason for the offended party’s damage. This is frequently alluded to as “however for” causation, implying that, yet for the respondent’s activities, the offended party’s damage would not have happened. The kid in the case above could demonstrate this component by demonstrating that however for the respondent’s careless demonstration of hurling the grain, the kid would not have endured hurt.
5.Proximate Cause:
Proximate reason identifies with the extent of a respondent’s obligation in a carelessness case. A respondent in a carelessness case is in charge of those damages that the litigant could have predicted through his or her activities. On the off chance that a litigant has caused harms that are outside of the extent of the dangers that the respondent could have predicted, at that point the offended party can’t demonstrate that the litigant’s activities were the proximate reason for the offended parties harms.
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