Negligence under Torts

The author is Aaryan Wadhawan, a 2nd year Law student pursuing his B.A. LL.B degree from UPES, Dehradun. Passionate yet persistent, he is a legal aspirant with Criminal Law, Torts, and Constitutional Law as his areas of interest.

Definition of Negligence

In India, the Law of Torts is derived from the English Law. The word ‘Tort’ is derived from the Latin word ‘Tortum’ which means ‘twisted’. Talking about Negligence under torts, the word Negligence originated from the Latin word ‘Negligentia’ which means careless. In the legal sense, Negligence is a failure to take due care during a situation. It is the legal duty of every person to avoid any harm or injury to another person when the risk is foreseeable.

There are 3 forms of Negligence

1. Misfeasance- an act that is completed without proper care and diligence. For example, a catering company forgets to prepare the food along with the drinks during a function even though the food was already paid for.
2. Nonfeasance- Failure to complete a task that should have been done. For example, a mechanic does not fix the car despite being paid for it.
3. Malfeasance- commencement of an act which should not have been done. For example, cheating during an exam.

Essentials of Negligence

Under negligence, the burden of proof lies on the plaintiff. The plaintiff has to prove the following conditions: -

1. Duty of Care- The plaintiff has to convince the court of law that the defendant owed a legal duty towards him, following the breach of the same, liability of negligence arises. After Donoghue vs. Stevenson[i], the scope of the duty of care expanded to new bounds. Duty of care covers everyone who is affected.
2. Duty must be towards the plaintiff- a duty arises only when the law believes that there exists a relationship between the defendant and the plaintiff where the defendant is supposed to act in a particular manner.
3. Breach of the duty- after proving that the defendant had a legal duty towards the plaintiff, the plaintiff must also prove to the court of law that the defendant breached his duty of care. In the case of Municipal Corporation of Delhi vs. Subhagwanti[ii], a clock tower collapsed which caused the death of many people. The clock tower was estimated to be 80 years old, but the average life span of the tower should have been 40 years. The maintenance of the clock tower was under the Municipal Corporation of Delhi and they owed a duty of care towards the citizens which was breached.
4. Actual cause- The plaintiff has to prove that due to the act of the defendant, the plaintiff suffered damages and that without the violation of the duty of the defendant, the plaintiff would not have suffered any injury/damages.
5. Legal Cause- the term legal cause also means the proximate cause. It is the main reason due to which the plaintiff incurred damages. Although the defendant is liable, he can only be prosecuted for the damages he could have foreseen through his acts.
6. Consequential Harm- the last essential in the liability of negligence which has to be proved by the plaintiff is that the breach of duty by the defendant is the main reason why the plaintiff suffered damages. In the case of Achutrao Haribhau Khodwa v. State of Maharashtra[iii], a cotton ball was left inside the body of the patient. The court held the doctor to be negligent.

Defences available under Negligence

Contributory negligence- when the damages incurred by the plaintiff are due to his own negligent acts, he cannot hold the defendant to be liable. And this defence can be used by the defendant to protect himself. In Howell v. Matchi[iv], 2017 case, a person was jaywalking while he was hit by a truck. The plaintiff incurred extreme injuries including a brain injury. She filed a case stating the negligence of the driver to be the reason for the accident. The court believed her statement and awarded her compensation. The defendant argued that is not only the fault of the truck driver as the plaintiff was also negligent as she was jaywalking. Later on, the court settled with a decision where the plaintiff was held to be 25% negligent.

Act of God (Force Majeure)- it is a sudden act of nature that could not be foresighted by any human being. Even if an act of God is foreseen, it is beyond the capability of any human to avoid the circumstances. Earthquakes, floods, and other natural calamities are covered under the act of god. No compensation is awarded to the plaintiff if the defence, act of God, is proved before the court. In the Cooper v. Horn[v] 1994 case, due to a flood, a dam broke and caused damage to the downstream of the plaintiff. The defendant claimed the defence of the act of god stating that the dam broke due to the floods. The defendant was held to be liable as negligence during the construction of the dam was ascertained.

Inevitable Accident- it is an act that could not have been avoided. These are sudden accidents that occur during an act. In the case of Krishna Patra vs Odisha State Electricity Board[vi], a lady was walking on the road where she came in contact with a live electric conductor which was lying on the road. Due to electrocution, she died in the hospital. The husband of the woman demanded compensation from the Odisha State Electricity Board stating that the death occurred due to the negligence of the Electricity Board. Later on, the court concluded that the electric conductor had outlived its age and it fell down because it became weak over time. The Odisha State Electricity Board was held liable under the liability of Negligence.

Criminal and Civil Negligence

Negligence can also be classified into two categories: Criminal Negligence and Civil Negligence. In case a person breaches any legal obligation, for example, he is texting and driving, or drinking and driving and he gets into a car accident wherein he kills the other person. His act will be considered criminally negligent. Whereas, when a person breaches any civil liability, for example, a doctor who misreads a chart and operates on the wrong body part, such an act would be considered under civil negligence.

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References:

[i] Donoghue v. Stevenson [1932] UKHL 100

[ii] Municipal Corporation of Delhi v. Subhagwanti & Ors. 1966 AIR 1750

[iii] Achutaro Haribhau Khodwa v. State of Maharashtra (1996) 2 SCC 634

[iv] Howell v. Matchi (2017 BCSC 1806)

[v] Cooper v. Horn 448 S.E.2d 403

[vi] Krishna Patra v. Orrisa State Electricity Board AIR 1997 Ori 109