Negligence

If some mishap happens due to which any common man gets injured then the legally authorized person will be held liable under the wrong of Negligence. That is, where a person is held liable for performing an act, or non-performing an act due to which some accident happens can be termed under legal prospect wrong of Negligence.

Negligence can be or civil or criminal wrong, depending upon the nature of the act done and the injury being suffered. That is, criminal negligence is one in which the act and injury suffered is of such a gross nature that the punishment is only imprisonment or any other in criminal liability, whereas in the civil liability act done is not of such a gross nature.

Example

If a driver under duty obligation has to drive a car with certain precautions. But if while driving he hits another vehicle and stops afterward he can be therefore liable for civil negligence, as negligence did is not such gross, but if he hits another vehicle and ran away as was in intoxication then he can be held liable for criminal negligence.

In Case of Jacob Mathew vs. State of Punjab, can be set as a breach of duty caused by the omission to do or not to do some act which a normal prudent man would have either done or ought not to have either done under the authority which has been assigned to him. Therefore where A was a government servant under the legal duty to check the sewage system and roads before the rainy season, which he omitted to follow resultant was that during rain there was water clogging on the roads. In this situation, if any incident happens then A would be held liable for he has omitted to perform his legal duty. 

Essentials

1. Defendant owns duty of care towards the plaintiff

In order to perform certain act i.e. enjoy ones right the person owns a certain duty of care to be taken so that it did not interfere with the right of others. The duty of care in this situation doesn’t mean any social or religious duty. But it refers to the certain risk that a person takes while doing a certain act, it is his duty that risk factor doesn’t interfere with the right of others. That is, in simple words the duty of care is a specific legal duty to take care of which he has made a breach. In law, there is no such particular duty defined in law, such duty depends upon the case, whether any duty involves in it or not.

In the case, Donoghue vs. Stevenson, the plaintiff bought a bottle of ginger beer from a retailer. He went to a friend’s home who was the appellant. The half portion was drunk from that bottle and when half was poured into the glass where it was found decaying of a snail. The bottle was opaque and therefore the plaintiff was not able to note that. The Resultant was that the lady claimed to suffer serious health injuries. It was held that it was not retailers rather it was manufacturer’s wrong of negligence as he owns duty of care towards all his customers and therefore he was held liable under wrong of negligence.

2. Breach of duty

Breach of duty refers to the reasonable care that a person owns towards another in a particular situation. A duty of care depends differently on different persons. The standard of care that a person owns towards another is that of a reasonable man or of an ordinarily prudent man. If the defendant has taken reasonable care but even after taking reasonable precaution accident occurs then it can’t be constituted as negligence.

Standard of care usually depends upon the aim or the objective which is to be obtained i.e. if a chance of taking the risk involved in the certain act but that action is necessary for public welfare then it can be permitted under law. Moreover, it also depends upon the amount of risk involved, i.e. the more the amount of risk the more will be the duty of care towards the defendant. And also the standard of care also depends upon the consideration amount for which the act or service is being done, i.e. if for example, the same amount of precaution and hygienic food can’t be demanded from a street vendor as that from a hotel or restaurant as the amount of consideration varies in both.

3. Damage suffered

For holding any person liable for the act of negligence, it is also necessary that the plaintiff must prove that there has been some loss or injury being suffered. Usually where there is a claim for damages being asked by the plaintiff, the onus of proof will lie over the plaintiff to prove before the court of law that there has been damage suffered by him due to the act of the defendant. 

Therefore generally, the plaintiff has to prove that he has suffered some loss or damage due to the negligent act of the defendant. But many a time, it so happens that the inference of the defendant’s negligence can be drawn from the facts. The presumption that the wrongful act can’t happen unless the defendant is negligent, is based on the maxim ‘res ipsa loquitur’ which means ‘the thing speaks for itself’. However, it is also necessary to apply this maxim that the plaintiff has to prove that during the time the accident occurred, the defendant was having control over it, and in such a situation the burden of proof shifts from plaintiff to the defendant, where he has to disapprove it.

Example

Chief Executive Officer, CESCO vs. Prabhati Sahoo, the case, there was a death happened because of the electrocution of live wire conductor hanging at the lower height. The deceased person came in contact with it and hence died. There was nothing to show that the supply of electricity was totally cut off. Moreover, it was also revealed that the supply of electricity was supplied only to one of the consumers. It was held that the accident could have happened without negligence of the defendant, and hence the maxim of res ipsa loquitur was successfully applied and compensation was granted to the deceased representative.

Types of Negligence

1. Contributory Negligence

Contributory negligence refers to the type where the plaintiff by his own want of care agrees to suffer damage caused by the wrongful or negligent conduct of the defendantTherefore, contributory negligence can be said when there is the proximate cause of damage caused due to the act or omission amounting to want of care that a prudent man would have done or in defiance of duty on the part of the plaintiff have joined with the defendant.

In the case of Davies vs. Swan Motor Co. Ltd, the employee of Swansea Corporation, by not obeying the orders, riding on steps attached to dust lorry. A speedy driven omnibus colludes with the lorry, as a result, the employee died. It was held that even though the omnibus driver was responsible for negligence the employee was contributing to the fault of negligence and therefore defendant can’t be held liable, as there was contributory negligence.

2. Composite Negligence

It is a type of negligence where the act of negligence is the result of two or more persons which results in the same damage. And the persons involved in such a negligent act can be termed as ‘Composite Tortfeasors’. Therefore the person liable for the wrongful act can’t plead before the court that he is liable only to the act of negligence. It only depends upon the discretion of the family.

3. Gross Negligence

Gross negligence is the type of negligence where the person is found extremely at fault. That is in such cases the defendant was so careless that it shows a complete lack of concern for others’ safety. Like for example, where the person voluntarily took the duty of care of another’s property, but has failed to take care even as an owner of that property then he will be liable for gross negligence.

Author: Shubham siwach

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