Negligence

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FINAL DRAFT TOPIC- “ NEGLIGENCE”

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INDEX 1 INTRODUCTION…………………………………………………4 2 Definition and Essentials of Negligence……………………………7 3 Duty of care to the plaintiff……………………………………….. 8 4 Breach of duty

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5 APPLICATION

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6 DAMAGES

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7 DEFENCE: Contributory Negligence………………………….. 13 8 Composite Negligence

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9 Conclusion and Suggestions …………………………………… 17 10 Bibliography

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INTRODUCTION

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In the modern law of tort, the word negligence has two meanings. Firstly, it indicates the state of mind of a party in doing act and secondly, it means a conduct which the law deems wrongful. Originally the word was generally used in its subjective sense as a particular mode of doing another wrongful act. In this sense negligence means inadvertence or carelessness. It means blameworthy inadvertence in the consequences of conduct insofar as a reasonable man would have adverted to them.

Negligence in the sense of conduct refers to the behavior of a person who, although innocent of any intention to bring about the result in question, has failed nevertheless to act up to the standards set by law, which is usually that of a reasonable man. When a statue, prescribes a certain standard of behavior with a view to avoiding injury to persons, it has been said that the failure to come up to that standard is statutorily equivalent to negligence, without proof of carelessness.

Through civil litigation, if an injured person proves that another person acted negligently to cause his injury, he can recover damages to compensate for his harm. Proving a case for negligence can potentially entitle the injured plaintiff to compensation for harm to their body, property, mental well-being, financial status, or intimate relationships. However, because negligence cases are very fact-specific, this general definition does not fully explain the concept of when the law will require one person to compensate another for losses caused by accidental injury. Further, the law of negligence at common law is only one aspect of the law of liability. Although resulting damages must be proven in order to recover compensation in a negligence action, the nature and extent of those damages are not the primary focus of negligence cases. Negligence suits have historically been analysed in stages, called elements, similar to the analysis of crimes. An important concept related to elements is that if a plaintiff fails to prove any one element of his claim, he loses on the entire tort claim.

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For example, let's assume that a particular tort has five elements. Each element must be proven. If the plaintiff proves only four of the five elements, the plaintiff has not succeeded in making out his claim.

Now, negligence has become an independent, specific tort itself. Although it is cleared a mental element, still Judges in deciding whether a man is guilty of negligent conduct or not apply an external standard and do not take into consideration his real mental attitude at the moment of the act. Thus to determine whether a particular driver has been negligent in driving his car along the public road, or whether a doctor has been negligent in performing a particular operation, they apply an external standard of a reasonable man placed in similar circumstances.

If the Judge is of opinion that a reasonable man placed in similar circumstances as the defendant would not have acted in that way and caused damage to the plaintiff, then the plaintiff is liable. The reason for the application of this external standard by Judges in England was due to increase of railway accidents and other injuries from industrial machinery in that country during the nineteenth century. Then it would be easy for even willful wrongdoers to say that they never intended to do any harm to any person, much less to the particular plaintiff, it would never intended to do any harm to any person, much less to the particular plaintiff, and it would be very difficult for the latter to prove the mental state of such a defendant. The existence of a duty situation or a duty to take care is thus essential before a person can be held liable in negligence.

The conduct of a reasonable man as envisaged in English common Law could be seen from the decision of Vaughan v. Menlove.The plaintiff had some interested in certain cottages on land adjoining that on which the defendant had erected a haystack. The plaintiff’s cottages were damaged by a fire which had spread from the haystack which was insured. When the condition of the stack, and the probable and almost inevitable consequence of permitting it to remain in its then state were pointed out to him, he abstained from the exercise of the precautionary measures that common prudence and foresight would naturally suggest, and very coolly observed that he would change it. It was manifest that he adverted to his interest in the insurance office.

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The defendant was held liable. Tindal, C.J. while rejecting the argument of the defendant that he had acted bona fide to the best of his judgment and that should be accepted, said thus:Instead, therefore, of saying that the liability for negligence should be co-existencewith the judgment of each individual, which would be as variable as the length of the foot of each individual, we ought rather to adhere to the rule which requires in all cases a regard to caution such as a man of ordinary prudence would observe.

Lord Macmillan remarked thus in Glasgow Corpn. v. Muir: The standard of foresight of the reasonable man eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question. A reasonable man does not mean a paragon of circumspection. He can be calm, cool, collected and is expected to take normal precautions for his own safety even in an emergency.

In Poonam Verma v. Ashwin Patelthe negligent doctor caused the death of a patient by prescribing medicines of the discipline for which he was not registered under the law. His negligence was held to be negligence per se which is defined in Black Law DICTIONARY as under: Negligence per se: conduct, whether of act or omission, which may be declared andtreated as a negligence without any argument or proof as to the particular surrounding circumstances, either because it is a violation of a statue or valid municipal ordinance, or because it is so probably opposed to the dictates of common prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it. As a general rule, the violation of a public duty, enjoyed by law for the protection of person or property, so constitutes.

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Definition and Essentials of Negligence According to Blackburn:Those who go personally or bring property where they know that they or it may come into collision with the persons or property of others have by law a duty cast upon them to use reasonable care and skill to avoid such a collision. Through civil litigation, if an injured person proves that another person acted negligently to cause his injury, he can recover damages to compensate for his harm. Proving a case for negligence can potentially entitle the injured plaintiff to compensation for harm to their body, property, mental well-being, financial status, or intimate relationships. Negligence is assessed against an objective standard, having regards to the circumstances and to the standard of care which would reasonably be expected of a reasonable person in similar circumstances. Normally the question of existence of a duty situation in a given case is decided on the basis of existing precedents concerning similar situations; but it is now well accepted that new duty situations can be recognized.

An important concept related to elements is that if a plaintiff fails to prove any one element of his claim, he loses on the entire tort claim. For example, let's assume that a particular tort has five elements. Each element must be proven. If the plaintiff proves only four of the five elements, the plaintiff has not succeeded in making out his claim. The elements that must be established in every negligence case are: duty, breach, causation, and damages. Negligence can be conceived of as having just three elements - conduct, causation and damages. More often, it is said to have four (duty, breach, causation and pecuniary damages) or five (duty, breach, actual cause, proximate cause, and damages). Each would be correct, depending on how much specificity someone is seeking.

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Duty of care to the plaintiff It means a legal duty rather than a mere moral, religious or social duty. The plaintiff has to establish that the defendant owed to him a specific legal duty to take care, of which he has made a breach. There is no general rule of defining such duty. It depends on each case whether a duty exists.

The case of Donoghue v. Stevenson[1932] illustrates the law of negligence, laying the foundations of the fault principle. In his ruling, Justice Lord MacMillan defined a new category of the law of torts because it was analogous to previous cases about people hurting each other. He then went on to define Neighbor as persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question. Reasonably foreseeable harm must be compensated. This is the first principle of negligence.

The existence of a duty of care is, of course, essential to a cause of action for negligence, but for contributory negligence it is quite unnecessary that the claimant should owe a duty of the defendant. All that is required is that the claimant should have failed to take reasonable care for his own safety. One sometimes comes across references to the claimant owing himself a duty to take care of his safety, but strictly speaking this, like the duty to mitigate, is a contradiction in terms.

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Breach of duty The defendant must not only owe the claimant a duty of care, he must be in breach of it. The test for deciding whether there has been a breach of duty is laid down in the oft-cited dictum of Alderson B. in Blyth v. Birmingham Waterworks Co.

Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would not do, or doing something which a prudent and reasonable man would not do. Negligence is the 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 responsible man would not do. The law requires the caution which a prudent man would observe. The standard is objective and it means what a judge considers should have been the standard of a reasonable man. The law requires taking of two points into consideration to determine the standard of care required:a) The importance of the object to be attained b) The magnitude of the risk c) The amount of consideration for which services, etc. are offered.

The fact of economic loss was recognized in Hedley Byrne and Co. Ltd. v. Heller and Partners, wherein a banker negligently gave a reference to one who acted thereon and suffered damage; it was held that the duty is plain and the damage was not too remote. In other words it was held by that a duty of care in making statements was a legal possibility. Emotional distress has been recognized as an actionable tort. A claimant who suffered only emotional distress and no pecuniary loss would not recover for negligence. However,courts have recently allowed recovery for a plaintiff to recover for purely emotional distress under certain circumstances.

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APPLICATION The doctrine of negligence originally applied to “public” professionals, such as innkeepers, blacksmiths, and surgeons, but it was probably prompted by industrialization and increased occupational accidents. At first, liability was harsh, but then it was softened to encourage industrial growth. The later trend is toward greater liability.

The doctrine of negligence does not require the elimination of all risk from a persons’ conduct—only all unreasonable risk, which is measured by the seriousness of possible consequences. Thus, a higher standard applies to nitroglycerin manufacturers than to those making kitchen matches. In certain critical fields—e.g., the milk industry—the law imposes liability for any mistakes, even when the strictest precautions are taken, a policy known as strict liability.

The standard of behaviour is external. Generally the law examines only conduct, not the excitability, ignorance, or stupidity that may cause it. The courts determine what the hypothetical “reasonable man” would have done in the situation. Such standards also demand a degree of foresight in anticipating the negligence of others—especially of special groups such as children.

The reasonable-man test presumes certain knowledge—e.g., that fire burns, water may cause drowning, and cars may skid on wet pavement. Community custom will influence such presumptions, such as the practice of driving on a certain side of the road even on private roads, a situation in which laws do not apply. Emergencies, however, can soften the application of such standards.

Allowances may be made for physical (but not mental) handicaps, such as blindness, but the law demands that handicapped persons avoid needlessly placing themselves in situations in which their inability may cause harm. Other than distinguishing between children and adults, the doctrine of negligence does not usually consider factors of age or experience.

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Ordinarily the plaintiff in a negligence suit must prove the defendant’s negligence by a preponderance of the evidence, which may be circumstantial so long as it is not too speculative. In some situations, once the plaintiff has established an apparent connection between his injury and the defendant’s apparent negligence, the latter must disprove that connection. This is the doctrine of res ipsa loquitur(Latin: “the matter speaks for itself”). Generally the damages recoverable for negligence are a monetary compensation for injuries or losses that are deemed to have flowed “naturally and proximately” from the negligent act.

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DAMAGES Damages place a monetary value on the harm done, following the principle of restitutio in integrum (Latin for "restoration to the original condition"). Thus, for most purposes connected with the quantification of damages, the degree of culpability in the breach of the duty of care is irrelevant. Once the breach of the duty is established, the only requirement is to compensate the victim. One of the main tests that is posed when deliberating whether a claimant is entitled to compensation for a tort, is the "reasonable person". The test is selfexplanatory: would a reasonable person (as determined by a judge or jury) be damaged by the breach of duty. Simple as the "reasonable person" test sounds, it is very complicated. It is a risky test because it involves the opinion of either the judge or the jury that can be based on limited facts. However, as vague as the "reasonable person" test seems, it is extremely important in deciding whether or not a plaintiff is entitled to compensation for a negligence tort. Damages are compensatory in nature. Compensatory damages addresses a plaintiff/claimant's losses (in cases involving physical or mental injury the amount awarded also compensates for pain and suffering). The award should make the plaintiff whole, sufficient to put the plaintiff back in the position he or she was before Defendant's negligent act. Anything more would unlawfully permit a plaintiff to profit from the tort. Types of damage 

Special damages - quantifiable dollar losses suffered from the date of defendant's negligent act (the tort) up to a specified time (proven at trial). Special damage examples include lost wages, medical bills, and damage to property such as one's car.

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General damages - these are damages that are not quantified in monetary terms (e.g., there's no invoice or receipt as there would be to prove special damages). A general damage example is an amount for the pain and suffering one experiences from a car collision. Lastly, where the plaintiff proves only minimal loss or damage, or the court or jury is unable to quantify the losses, the court or jury may award nominal damages.

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Punitive damages - Punitive damages are to punish a defendant, rather than to compensate plaintiffs, in negligence cases. In most jurisdictions punitive damages are recoverable in a negligence action, but only if the plaintiff shows that the defendant’s conduct was more than ordinary negligence.

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DEFENCE: Contributory Negligence Contributory negligence is carelessness by a plaintiff which has contributed to and is in whole or in part the cause of the injury or harm he complains of, as having been caused to him by the defendant’s fault. It is one’s failure to avoid getting hurt by the defendant or it is the fault of the claimant in the very occurrence of the accident.

This rule of contributory negligence first appeared at the beginning of the nineteenth century, though the general idea is traceable much earlier. The courts modified the defense of contributory negligence by the so-called rule of last opportunity. This is a defense in which the defendant has to prove that the plaintiff failed to take reasonable care of his own safety and that was a contributing factor to the harm ultimately suffered by the plaintiff. If the defendant’s negligence was the cause of accident, the plaintiff can recover in spite of his own negligence.

The topic of contributory negligence is a multifarious topic. It extends its tentacles to the topics of defenses to a tort, damages in tort, special defense to the tort of negligence and too limiting, modifying and defining the topic of negligence. The first case in which the principles of contributory negligence were evolved was Butterfield v. Forster. In this case; A wrongfully obstructed a road by placing a pole across it. B came along that road towards evening riding his horse at such an excessive speed that he was overthrown due to the pole and injured. There was sufficient daylight to see the obstruction at a distance of 100 yards. In the action that was brought by B, the injured, claiming damages against A, it was held that the latter was not liable; for despite A’s negligence B could have avoided the accident by taking due care of him. Bayley, J. said: - If he had used ordinary care he must have seen the obstruction; so that the accident appeared to happen entirely from his own fault.

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While awarding compensation in Pramod Kumar Casewherein a truck dashed against a car the Supreme Court observed that the question of contributory negligence arises when there has been some act or omission on the claimant’s part which has materially contributed to the damage caused, and is of such a nature as could probably be described as negligence. Negligence ordinarily means breach of a legal duty to care but when used in the expression contributory negligence, it does not mean any breach of duty. It only means the failure by a person to use reasonable care for the safety of either himself or his property so that he becomes blameworthyin part as an author of his own wrong.Subject to non- requirement of the existence of duty, the question of Contributory negligence is to be decided on the same principle on which the question of the defendant is decided. The standard of a reasonable man is as relevant in the case of a plaintiff’s contributory negligence as in the case of a defendant’s negligence. But the degree of want of care which will constitute contributory varies with the circumstances and the factual situation of the case.

In Haris v. Toronto Transit Commission, the Supreme Court of Canada has held that if a boy sitting in a bus projected his arm outside the bus in spite of warning and is injured, he is guilty of contributory negligence.

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Composite Negligence When the negligence of two or more persons results in the same damage, there is said to be Composite Negligence, and the persons responsible for causing such damage are known as Composite Tortfeasors. In England, such tortfeasors could be classified into two categories: -joint tortfeasors and independent tortfeasors, and there were different rules governing the liability of these two categories of tortfeasors. The liability of these two categories of persons has been made somewhat similar through legislation, i.e. the Law Reform (Married Women andTortfeasors) Act, 1935 and Civil Liability (Contribution) Act, 1978. The courts in India have not followed the statutory law of England wherever it was against the principles of equity, justice and good conscience. The distinction between joint tortfeasors and independent tortfeasors is not of much relevance in India. The term composite negligence has been used in India to cover both kinds of cases of independent tortfeasors and joint tortfeasors. Sometimes, the courts have been unmindful of the fact that the terms joint tortfeasors and independent tortfeasors have different connotations, the term Composite or joint tortfeasors has been used to connote a situation, which is in fact one of independent tortfeasors. Nature of liability in composite negligence:The liability of the tortfeasors in composite negligence cases is joint and several. No one is allowed to say that there should be apportionment of damages and his liability should be on the basis of his fault. The judgment against the composite tortfeasors is for a single sum without any apportionment, and that it is the discretion of the plaintiff to enforce the whole of his claim against any one of the defendants. However, the defendant who has paid more than his share may claim contribution from the other defendants. A case worth mentioning at this point is Hira Devi v. Bhaba Kant Das.

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The facts were that due to negligence of the driver of a State Transport bus and the driver of a car, there was an accident resulting in the death of a person travelling in another car andinjury to some other persons in that car. The tribunal made apportionment of damages as between the owners of the bus and the car. The Guwahati High Court, however, held that the tribunal was in error in apportionment the damages between the two tortfeasors. The court stated that this is a case of joint tortfeasors and that the liability of the owner of the car has not been established. The claimants were held entitled to recover the entire amount of the claim from the owner of the bus i.e., State of Assam. The court also observed that this does not affect the right of the State to claim contribution from the other tortfeasor, namely the owner of the bus . In 1963, in a Single Bench decision of the Punjab and Haryana High Court i.e., The State of Punjab v. Phool Kumari , it had been held that there could be apportionment of liability between various tortfeasors, but that decision has been dissented in many subsequent cases.The other case is of United India Fire and General Insurance Co. v. Sagar Kanwar,where it was held by the Rajasthan High Court that there could be no apportionment of damages in case of composite tortfeasors. It is no concern of the tribunal to apportion the damages between them. The court observed that in such a case the claimants are entitled to damages jointly and severally from negligent respondents. Similarly, in SatbirSingh v. Balwant Singh, there was a collision between a motor cycle and a truck, resulting in the death of pillion rider and injuries to the motor cyclist. The court found negligence of the motor cyclist to the extent of two-third and that of truck driver one-third. There was no negligence of the pillion rider. Thus, there was composite negligence of the truck driver and the motor cyclist against the pillion rider. The court held that the widow of the pillion rider was entitled to claim the whole amount from the truck owner and his insurance company. Thereafter, the truck owner and the insurance company could claim the amount from the motorcyclist to the extent of his liability.

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Conclusion and Suggestions

When the plaintiff by his own want of care contributes to the damage caused by the negligence or wrongful conduct of the defendant, he is considered to be guilty of contributory negligence. It is one’s failure to avoid getting hurt by the defendant or it is the fault of the claimant in the very occurrence of the accident. When the negligence of two or more persons results in the same damage, there is said to be Composite Negligence, and the persons responsible for causing such damage are known as Composite Tortfeasors. The scope of the (English) Law Reform Act, 1945 is wide, but not unlimited, for there were a number of torts where at common law the defendant could not escape liability by showing contributory negligence on the part of the claimant and this is carried over into the statutory regime.

Contributory negligence is a defense in which the defendant has to prove that the plaintiff failed to take reasonable care of his own safety and that was a contributing factor to the harm ultimately suffered by the plaintiff whereas in composite negligence is not defense because of many individuals contributing to the damage to a particular individual where individual was not at fault. The liability of the persons guilty of composite negligence is joint and several. In India, there is no Central Legislation corresponding to the Law Reform (Contributory Negligence) Act, 1945 of England.

The position brought about by the Law Reform Act in England is very just andequitable. The liability of composite negligence has been made somewhat similar through legislations, i.e., the Law Reform Act, 1935 and Civil Liability Act, 1978. The existence of a duty of care is, of course, essential to a cause of action for negligence, but for contributory negligence it is quite unnecessary that the claimant should owe a duty of the defendant. In cases of contributory

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negligence consideration of the conduct of the injured or deceased person becomes material. In composite negligence, there is a liability of distinct individuals. No one is allowed to say that there should be apportionment of damages and his liability should be on the basis of his fault. When the plaintiff is a child or other person under some form of personal incapacity, it is sufficient if he shows as much care as a person of that age may reasonably be expected to show.

Many cases related to composite and contributory negligence have been decided by the High Courts and Supreme Court of India and laid down new principles in the legal field. The topic of contributory negligence is a multifarious topic. It extends its tentacles to the topics of defenses to a tort, damages in tort, special defense to the tort of negligence and too limiting, modifying and defining the topic of negligence. Subject to non- requirement of the existence of duty, the question of Contributory and Composite Negligence is to be decided on the same principle on which the question of the defendant/defendants is/are decided.

Therefore, we can conclude that composite and contributory negligence are essential types of negligence and they laid important principles in the law of Torts. They are really helpful to an individual to define negligence in a descriptive and analytical way and make the scope of the negligence vast andwide-spread. Contributory negligence can be used as a defense by the defendant while Composite negligence makes defendants to divide the damages to be paid to the plaintiff between them.

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BIBLIOGRAPHY 1. Basu, D. D., the Law of Torts, Kamal Law House, Kolkata, 2010. 2. Deakin, S., A. Johnston and B. Markesins, Markesinis and Deakin’s Tort Law, Oxford University Press Inc., New York, 2003. 3. Pillai, P.S.A., Law of Tort, Eastern Book Company Publishing (P) Ltd., Lucknow, 2004