negligence
Harm caused by failing to take the care the law requires, and how it applies to polluters
Scope: Negligence as a remedy against pollution. Trespass and strict liability are covered in their own notes.
In one minute
Negligence is breach of a legal duty to take care that causes damage. A victim of pollution can use it when the polluter was careless.
The victim must prove four things: duty, breach, causation and damage. The polluter can win by proving it took reasonable care.
Exam focus
- Frequency: Rarely asked
- Usually asked as: Long answer (10 to 15 marks)
Legal provision
Negligence is a judge-made tort. No statute defines it for pollution cases. These sources apply.
- Law of torts: duty, breach, causation and damage, built through decided cases.
- Donoghue v. Stevenson (1932): the neighbour principle, the basis of the modern duty of care.
- Section 38, Specific Relief Act, 1963: a perpetual injunction may stop a continuing careless discharge.
Meaning and definition
Negligence is the breach of a legal duty to take care, which results in damage to the plaintiff. It is about carelessness, not about how direct the harm was. Many pollution harms come from careless operation or maintenance and not from a direct act.
- 1. Duty of careThe defendant owed the plaintiff an obligation to take care.
- 2. BreachThe defendant fell below the standard of a reasonable person.
- 3. CausationThe breach caused the harm, and the harm is not too remote.
- 4. DamageThe plaintiff suffered actual loss or injury.
Detailed explanation
Step 1: duty of care
A duty of care is owed to anyone so closely affected by an act that the actor ought to have them in mind. This is the neighbour principle of Donoghue v. Stevenson. A factory owes this duty to residents, downstream water users and farmers near its operations.
Step 2: breach
The standard is objective. The court asks what a reasonably careful operator in that industry would have done. Typical breaches in pollution cases:
- no effluent or emission treatment where a prudent operator would install it;
- failure to inspect and maintain valves, tanks or filters;
- ignoring earlier complaints or known risks;
- poor training or supervision of staff.
Step 3: causation and damage
The breach must actually cause the harm. The harm must not be too remote. Unlike trespass, negligence is not actionable without damage, so the plaintiff must show real loss.
Step 4: res ipsa loquitur
Sometimes the victim cannot show how the carelessness happened. The maxim res ipsa loquitur ("the thing speaks for itself") then helps. If the event would not normally happen without negligence, and the defendant controlled the thing, the court may infer negligence. The defendant must then explain how it happened without lack of care.
Example. A chemical storage tank in a factory at Ankleshwar bursts and sends waste into a canal. The tank was under the factory's sole control, and such tanks do not burst without poor maintenance. The villagers use res ipsa loquitur to infer negligence.
Step 5: defences
The defendant may prove reasonable care, or that the plaintiff's own carelessness contributed. Contributory negligence reduces the damages.
Don't confuse: negligence and strict liability
| Point | Negligence | Strict (Rylands) or absolute (Oleum) liability |
|---|---|---|
| Fault | Plaintiff must prove carelessness | No fault need be proved |
| Reasonable care | A complete defence | Not a defence. Strict liability allows limited defences, such as act of God. Absolute liability allows none. |
| Burden on plaintiff | Heavier: duty, breach, causation, damage | Lighter: escape and resulting harm |
Inside the concept. A mill ignores repeated warnings about a cracked effluent pipe, and the pipe leaks into a village well. The mill failed to take reasonable care. This is negligence.
Just outside it. A gas plant with perfect safety records leaks toxic gas because of a hidden defect. Carefulness is no answer for a hazardous enterprise, so absolute liability applies and negligence is not needed.
Common mistakes
- Writing that damage need not be proved in negligence. It must be proved.
- Judging breach by what the defendant itself thought enough. The test is objective.
- Treating res ipsa loquitur as removing all burden. It only allows an inference of negligence.
- Using negligence when the facts are a hazardous escape. Strict or absolute liability fits better.
Leading case laws
- Donoghue v. Stevenson (1932)
Facts. A woman drank ginger beer from an opaque bottle bought by a friend. A decomposed snail came out of it.
Principle. By 3 to 2, the House of Lords held that a manufacturer owes a duty of care to the consumer, even without a contract. Lord Atkin's neighbour principle states the test.
Why it matters. It is the base for a polluter's duty to those its activity is likely to affect. The case decided only that the claim could be tried. Negligence still had to be proved.
How to write this answer in the exam
5-mark answer
- Meaning of negligence.
- Four elements.
- One pollution example.
10-mark answer
- Meaning and why it suits indirect pollution harm.
- Duty, with Donoghue v. Stevenson.
- Breach by an objective standard, with pollution examples.
- Causation and damage.
- Res ipsa loquitur.
- Defences and the contrast with strict liability.
Key points to remember
- Negligence: duty, breach, causation, damage. Damage must be proved.
- Donoghue v. Stevenson (1932): neighbour principle.
- Standard of care is objective.
- Res ipsa loquitur allows an inference of negligence.
- Reasonable care defeats the claim. This is the key difference from strict liability.
Quick self-test
1. Name the four elements of negligence.
Duty of care, breach, causation and damage.
2. What does res ipsa loquitur allow?
An inference of negligence from the accident itself, where the defendant controlled the thing.
3. Can a defendant escape negligence by proving reasonable care?
Yes. That is not so in strict or absolute liability.