This post has been written by Shivangi Khattar pursuing 2nd year B.B.A., LL.B. from JIMS School of Law, IP University
In law of torts negligence has two meanings. Firstly, it is considered as a mode of committing certain tort such as carelessly or negligently committing trespass, nuisance or defamation etc. In this content, it basically denotes the mental element. Secondly, it is considered as a separate tort, that means a conduct which creates a risk of causing damage, rather than a state of mind.
Therefore, in an action for negligence, the plaintiff has to prove that the defendant owed duty of care to the plaintiff, he made a breach of that duty and as a consequence of his acts the plaintiff suffered damages. Therefore, as soon as these essential will be proved by the plaintiff, the defendant will be made liable for the offence he had committed.
WHAT IS NEGLIGENCE UNDER LAW OF TORTS
Under the law of torts, negligence means a breach of legal duty of care by the defendant which results in undesired damage to the plaintiff.
The Apex Court in Jacob Mathew v State of Punjab observed:
“Negligence is a breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent or reasonable man would not do. Actionable negligence consists in the neglect of the use of ordinary care or skills towards a person to whom the defendant owes a duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property.”
This definition involves three constituents of negligence. Firstly, a legal duty to take due care. Secondly, breach of the said duty and lastly there is consequential damage.
ESSENTIALS REQUIRED TO MAKE A PERSON LIABLE FOR COMMITTING THE OFFENCE OF NEGLIGENCE
In order to make the defendant liable for committing the offence of negligence, the plaintiff has to prove the following essentials: –
DUTY OF CARE TO THE PLAINTIFF: –
Here a duty of care means a legal duty rather than a mere moral, religious or social duty. The plaintiff has to establish that the defendant owed him a specific duty to take care of, which he has made a breach. There is no general rule which defines such duty, it depends on each case that whether a duty exists or not. The existence of the duty will depend on the reasonable forcibility of the injury to the plaintiff. If at the time of the act or omission, the defendant could reasonably foresee injury to the plaintiff, he owes a duty to prevent the injury and the failure to that will make him liable.
Lord Atkins propounded a rule in Donoghue v Stevenson i.e. “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor.” He then defined “neighbors” as “persons 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 which are called in questions.” This rule also gained acceptance.
In the above -mentioned case, A purchased a bottle of ginger beer from a retailer for the appellant, a lady friend. Some of the contents were poured in a tumbler and she consumed the same. When the remaining contents of the bottle were poured into her tumbler, the decomposed body of a snail floated out with her ginger beer.
The appellant alleged that she seriously suffered in her health in consequence of having drunk a pat of the contaminated contents. The bottle was of dark opaque glass and closed with a metal cap, so that the contents could not be ascertained by inspection. Therefore, she bought an action against the manufacturer for damages.
The defendants pleaded that they did not owe a duty of care towards the plaintiff and they also pleaded that the plaintiff was a stranger to the contract and her action was therefore, not maintainable.
However, the House of Lords held that the manufacturer owed a duty of care that the bottle did not contain any noxious matter and hence, he would be liable for the breach of his duty.
 (1932) A.C. 562
BREACH OF DUTY: –
Breach of duty means non-observance of due care which is required in a particular situation. A question arises that what is the standard of care required? The standard of care can be determined by considering the importance of object to be attained, the magnitude of the risk and also the amount if consideration for which services etc are offered.
Alderson B. in Blyth v Birmingham Waterworks co, stated that “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 reasonable man would not do.”
Therefore, the law requires that a prudent man should take proper care and caution, however if he fails to do so , then in such case he will be held liable for committing the offence of negligence.
 Latimer v A.E.C. Ltd (1953) A.C. 643
 Nirmala v Tamil Nadu Electricity Board, A.I.R. 1984 Mad.201
 Klaus Mittelbachert v East India Hotels Ltd, A.I.R. 1997 Delhi 201
Damage here basically means any harm or injury that has been caused to the plaintiff by the negligent act of the defendant. So, in order to make the wrongdoer liable, it is necessary to show that the defendant’s breach of duty caused damage and also the plaintiff has to show that the damage caused is not too remote.
As a general rule, it is for the plaintiff to prove that the defendant was negligent. The initial burden of making out at least a prima facie case of negligence as against the defendant lies heavily on the plaintiff, but once this onus is discharged, it will be for the defendant to prove that the incident was the result of an inevitable accident or contributory negligence on part of the plaintiff. If plaintiff is not able to prove negligence on part of the defendant, then the defendant cannot be made liable.
There is also a presumption of negligence according to the legal maxim “Res Ipsa Loquitor” which means “the thing speaks for itself”. When the accident explains only one thing and that is that the accident could not ordinarily occur unless the defendant has been negligent, the law raises the presumption of negligence on the part of defendant. In such a case it is sufficient for the plaintiff to prove accident and nothing more. However, the defendant can avoid his liability by disproving negligence on his part. For this maxim to apply, it is also necessary that the event causing the accident must have been in the control of the defendant.
Thus, when the circumstances surrounding the thing which cause the damage are at the material time exclusively under the control or management of the defendant or his servant and the happening is such as does not occur in the ordinary course of things without negligence on defendant’s part , the maxim applies and the burden of proof shifts from plaintiff to the defendant.
In legal language, negligence signifies failure to exercise the standard of care which the doer as a reasonable man should, by law, have exercised in the circumstances; if there is no legal duty to take care, then lack of care has no legal consequences. Therefore, in order to make the defendant liable for committing the offence of negligence, the plaintiff must prove all the essentials namely legal duty to take care, breach of such duty and the damages that has been suffered by the plaintiff due to the negligent act of the defendant.
 Narayan Puno v Kishore Tanu, A.I.R. 1979 Goa 17
 Municipal Corporation of Delhi v Subhagwanti, A.I.R 1966 S.C 1735, at 1739
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