Negligence

Legal provision

• No Indian Act defines civil negligence. The tort comes from English common law and is applied in India as justice, equity and good conscience.
• Bharatiya Nyaya Sanhita, 2023: causing death by a negligent act and rash or negligent acts that endanger life are also offences.
• Consumer Protection Act, 2019: deficiency in service, including medical service, is remedied before Consumer Commissions.
• Motor Vehicles Act, 1988: compensation for road accidents.
• Article 21, Constitution of India: compensation for the State's careless acts that violate the right to life.

Meaning and definition

In Blyth v. Birmingham Waterworks Co. (1856), Alderson B described negligence as the omission to do something that a reasonable man would do, or doing something that a prudent and reasonable man would not do. As a tort, it means a breach of a legal duty to take care, which results in damage to the claimant that the defendant did not desire.

Detailed explanation

Step 1: Duty of care

• A duty of care is a legal obligation to take reasonable care to avoid harming another.
• In Donoghue v. Stevenson, a decomposed snail was found in a bottle of ginger beer bought for the claimant by a friend. By three Lords to two, the House of Lords held that the manufacturer owed her a duty of care. Lord Atkin's neighbour principle says that you must take reasonable care to avoid acts that you can reasonably foresee would injure your neighbour, meaning persons so closely and directly affected that you ought to have them in mind.
• The appeal decided only that the pleaded facts stated a claim. Negligence still had to be proved.
• In Caparo Industries v. Dickman (1990), the House of Lords set three tests for a new duty: the harm was foreseeable, there was a relationship of proximity, and it is fair, just and reasonable to impose a duty.

Step 2: Standard of care and breach

• The standard is that of the reasonable man, who is a person of ordinary prudence. It is objective.
• The court weighs the probability of harm, the seriousness of the harm, the cost of precautions and the usefulness of the act.
• In Bolton v. Stone (1951), a cricket ball was hit out of a ground and injured a passer-by. A ball had been hit out about six times in thirty years. The House of Lords held that the risk was so small that a reasonable man would not guard against it.
• In Paris v. Stepney Borough Council (1951), a one-eyed worker lost his other eye. The employer owed a higher duty because the worker was specially at risk.
• Children and persons with disabilities are judged by their own class. A skilled person is judged by the skill that he claims.

Step 3: Damage and causation

• The breach must cause the damage. The test is the "but for" test: would the damage have happened if the defendant had not been careless?
• In Barnett v. Chelsea & Kensington Hospital Management Committee, a doctor sent away a man who had drunk arsenic-laced tea without examining him. The man died. The doctor was careless, but the claim failed because the man would have died anyway.
• A new intervening act can break the chain. This is the idea of novus actus interveniens (a new intervening act).

Step 4: Remoteness

In Overseas Tankship (UK) Ltd v. Morts Dock & Engineering Co. (The Wagon Mound No. 1), oil spilled by the defendants' employees was later set alight and damaged a dock. The Privy Council held that Re Polemis is no longer good law, and that a negligent defendant is liable only for damage that a reasonable person could foresee. See the note on remoteness of damage.

Step 5: Proof by res ipsa loquitur

• Res ipsa loquitur (the thing speaks for itself) applies when the thing causing the harm was under the defendant's control, and the accident would not happen ordinarily without negligence.
• In Byrne v. Boadle (1863), a barrel of flour rolled out of a warehouse window and hit a passer-by. This was enough for an inference of negligence.
• In Pushpabai Purshottam Udeshi v. Ranjit Ginning & Pressing Co. (P) Ltd., the Supreme Court inferred negligence from the wreckage when a car hit a tree, with no eyewitness.
• The doctrine raises an inference of negligence, and the defendant must then explain.

Step 6: Professional negligence

• A professional is judged by the standard of an ordinary competent member of that profession. In Bolam v. Friern Hospital Management Committee (1957), a doctor is not negligent if he acts in accordance with a practice accepted as proper by a responsible body of medical opinion.
• In Cassidy v. Ministry of Health, a man who went in for a routine hand operation came out with a hand stiff all over. He could not point to which employee had been careless. The Court of Appeal held that the hospital could not hide behind that uncertainty.
• In Jacob Mathew v. State of Punjab (2005), the Supreme Court held that a doctor is criminally liable only for gross negligence or recklessness, and not for an error of judgment.
• In Indian Medical Association v. V.P. Shantha, the Supreme Court held that medical work for a fee is a service under the Consumer Protection Act, with a narrow exception for care that is completely free.

Step 7: Defences

• Contributory negligence: the claimant's own carelessness helped cause the damage. Damages are reduced in proportion.
• Volenti non fit injuria: the claimant freely accepted the risk. In Hall v. Brooklands Auto Racing Club, a car left the track and killed spectators, and the club was not liable because spectators accept the ordinary risks of the sport.
• Inevitable accident and act of God.
• Statutory authority.

Step 8: Remedies

• Damages for the loss, including medical costs, loss of earnings, pain and suffering.
• Injunction where the risk continues.
• Compensation under the Consumer Protection Act or the Motor Vehicles Act in suitable cases.

Don't confuse: negligence and strict liability

Common mistakes

• Forgetting causation. Careless conduct alone is not enough.
• Applying the ordinary standard to professionals. They are judged by their own field.
• Saying that res ipsa loquitur proves negligence. It only allows an inference.
• Saying that the defendant pays for all consequences. Only foreseeable damage counts.
• Treating Donoghue v. Stevenson as proof of negligence. It decided only that a duty can exist.

Apply it

Leading case laws

• Donoghue v. Stevenson (1932)

  Facts. A decomposed snail was found in a bottle of ginger beer that a friend bought for the claimant.

  Principle. A manufacturer owes a duty of care to the consumer. Lord Atkin's neighbour principle.

  Significance. The foundation of the modern law of negligence.

• Overseas Tankship (UK) Ltd v. Morts Dock & Engineering Co. (The Wagon Mound No. 1) (1961)

  Facts. Oil spilled from a ship was later set alight and damaged a dock.

  Principle. Liability is limited to damage that was reasonably foreseeable.

  Significance. The test of remoteness.

• Barnett v. Chelsea & Kensington Hospital Management Committee (1969)

  Facts. A doctor turned away a poisoned man without examining him. The man died.

  Principle. The claim failed because death would have occurred anyway.

  Significance. The but-for test of causation.

• Cassidy v. Ministry of Health (1951)

  Facts. A routine hand operation left the claimant with a stiff hand, and he could not identify who was careless.

  Principle. The hospital was responsible for its whole team and could not hide behind the uncertainty.

  Significance. Res ipsa loquitur and medical negligence.

• Indian Medical Association v. V.P. Shantha (1995)

  Facts. Conflicting rulings on whether medical work is a service under the Consumer Protection Act.

  Principle. Medical work for a fee is a service, except care that is completely free.

  Significance. Doctors answer before Consumer Commissions.

How to write this answer in the exam

Key points to remember

• Negligence has three essentials: duty, breach, damage caused and not too remote.
• The standard is that of the reasonable man. Professionals are judged by their own field.
• But-for test for causation (Barnett). Foreseeability for remoteness (Wagon Mound).
• Res ipsa loquitur allows an inference of negligence.
• Defences: contributory negligence, volenti non fit injuria.

Quick self-test

Related topics

• Negligence
• Liability arising out of accidents -Relevant provisions of the Motor Vehicles Act
• Negligent Misstatement
• Defects in goods and deficiency in services