Negligence is a civil tort that occurs when a person violates a duty of care that he or she owes to another person as a result of which the other person suffers severely or suffers a certain legal injury.

In layman’s terms, negligence can be defined as failure to be released or failure to act due to negligent conduct.

In tort law negligence can be:

• Mode of doing other things like illegal entry or trouble

• A different tort itself

Essentials of Negligence

• Duty of Care: The plaintiff needs to prove that the defendant owed him a duty of care and violated the same. The nature of the duty of negligence is legal only and not moral or religious. ‘Duty’ can be seen as an obligation to recognize others.

• Breach of Duty: When the first condition is detected, the second step is to identify the breach of duty. The defendant must perform his duties as a reasonable man. The deciding test is that whether a defendant is taken well care or not.

• Injury: As a result of the defendant’s breach of duty, the plaintiff must receive certain damages.

Donoghue v Stevenson [criminal case]

Donoghue v Stevenson is a landmark case in the field of negligence. In this case, the plaintiff had gone to cafe to drink ginger beer, the bottle of which had been sealed with opaque cork. When all the contents of the bottle were emptied, a rotten snail’s body came out, and the complainant became ill as a result of the use of contaminated contents of the bottle.

It was held by the court that the manufacturer who made the consumer product ultimately assumed that in the absence of reasonable care on his part the consumer would be harmed, that manufacturer should care for the plaintiff.

Medical Negligence

A person is expected to have the necessary skills and understanding of his duties when performing a certain task. Especially in the medical field where the poles are very high, the heavy responsibility rests with the physician to care while selecting and providing specific treatment for his patient.

Breach of this duty amounts to medical negligence.

Example: The doctor gives anesthesia to a patient before surgery but the amount of anesthesia is much higher than the average dose for an adult. This causes the death of the patient, this amounts to medical negligence.

Res Ipsa Loquitor

Often, in cases of negligence, the burden of proof rests with the plaintiff. It is the plaintiff’s responsibility to prove that the defendant was not only negligent but also inflicted damage on the plaintiff.

In some cases, there is no need for it, the appearance of such negligence is sufficient. In these cases the ‘Res Ipsa Loquitor’ principle is applied, which means ‘things speak for themselves’.

In cases where the circumstances themselves point to the defendant’s negligence, the court considers the defendant negligent and the damages caused to the plaintiff as a result of defendant’s misconduct.

Example: A doctor leaves his watch on a patient’s stomach after surgery. When such a case comes to court, the circumstances speak for themselves and the defendant is presumed guilty.

Aishwarya Says:

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