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TORT OF NEGLIGENCE: A CRITICAL ANALYSIS

AUTHOR: Majjari Pavani, B.B.A. LL.B. (Hons.), Alliance School of Law, Alliance University, Bengaluru, Karnataka, India.


ABSTRACT

The rights and obligations that persons owe to others, as well as the violation of these rights and obligations, are covered under tort law and it is a civil wrong. The objective of tort law is to compensate or monetarily compensate those whose rights have been violated. The various categories of torts include trespass, defamation, nuisance, and negligence.


A tort is one of the numerous wrongdoings. Certain torts are sometimes committed through negligence. Actually, it refers to a mental aspect. In general, negligence refers to carelessness or unreasonable behavior, however unreasonable behavior without causing harm is not actionable even though it may be a crime, but if such behavior is continued, it may affect another person and result in liability for negligence. In legal terms, negligence is the inability to uphold a standard of conduct created to safeguard society from unjustified risk, and it is the main issue in the majority of personal injury and property damage prosecutions. To better understand the concept of negligence, the critical examination of the tort of negligence will be described in this article.

Keywords: Tort, negligence, civil wrong.


INTRODUCTION

English common law is a basis for Indian tort law. The Indian courts follow the tort law's negligence-related provisions. On the basis of the principles of justice, equity, and good conscience, the Indian courts made certain changes to the legislation relating to negligence.According to the law of negligence, a person must act in a way that complies with specific moral principles. The law mandates that people who disregard those criteria must pay anyone who suffers harm as a result. In some cases, a person's failure to act is also covered under the law of negligence.


Negligence is a distinct cause of action under tort law, and it is defined as behavior that falls short of the legal minimum required to safeguard others from an unreasonably high risk of harm.Negligence is a duty breach and is characterized by a failure to use reasonable caution. When it is foreseeable that another person could be damaged by one's acts or inactions, one is required to exercise reasonable care toward that person. Negligence is conduct that is thoughtless or irrational and implies a lack of intent to create the harm that is the subject of the complaint. However, even though it might be an offense punishable by law, simply being unreasonable without causing harm is not actionable.


Negligence is a civil as well as a criminal offense. Thus, it refers to a situation in which one person suffers harm or injury as a result of another's carelessness. The tort of negligence is committed even though the other party does not directly hurt the other because of the negligent act he committed. There are two categories of negligence that are civil and criminal. Criminal negligence occurs when a person does an act that puts the safety of human life at clear risk. Normal care, usually referred to as due diligence, is what is meant by civil negligence.


HISTORY,CONCEPT,ANDESSENTIALSOFNEGLIGENCE

One of the most common torts is negligence, which developed in the 19th century. In tort law, negligence refers to either any separate tort or a mental state in which a specific tort may be committed. The Latin word negligentia, which means "failing to pick up," is where the word "negligence" comes. In its simplest meaning, the word "negligence" refers to the act of being careless; in the legal sense, it refers to the failure to exercise the level of care that a reasonable person in the same position would have exercised.


Negligence is the failure to perform a duty as a result of failing to take the actions that a sensible and reasonable man would take or refraining from taking those actions that a reasonable man would take under the circumstances. Actionable negligence is the failure to exercise ordinary care or skill with respect to a person to whom the defendant owes the obligation to exercise ordinary care and skill, such failure has resulted in harm to the plaintiff's person or property.


ESSENTIAL CONDITIONSTOSUE FOR NEGLIGENCE

  • Duty of care to the plaintiff

  • Duty must be owed to the plaintiff

  • Breach of duty of care

  • Injury caused by the plaintiff


1. DUTY OF CARE

The law acknowledges the obligation of care. It refers to a legal obligation rather than just a moral, religious, or social one. The plaintiff must prove that the defendant owes him a specific legal obligation to care for, which obligation has been broken. Whether an obligation is owed and how it arises from different relationships depends on each individual circumstance. Except in cases where the person whose conduct is being criticized owes a duty of care, negligence is not a basis for liability. When a defendant violates the responsibility that the defendant owes to the plaintiff, the defendant is liable for negligence. By failing to take reasonable care to fulfill the obligation, the defendant violates the duty.


In Donoghue, Stevenson case, an individual purchased a bottle of the defendant's ginger beer from a store. The man passed the bottle to his female friend, who drank the contents and fell ill. The decayed shell of a snail was in the bottle. Because the bottle was opaque, it was impossible to see what was inside, which went undetected until the woman was re-filling her glass. The manufacturer was sued for negligence by the customer. The House of Lords ruled that the manufacturer owed the consumer compensation. Additionally, it was decided that because she and not her friend purchased the bottle, the consumer lacked a contractual claim against either the manufacturer or the retailer. She alleges negligence and a breach of a duty of care she had to exercise as a customer in support of her claim.


Out of it, the following inclusive definition of the duty of care emerged. You must exercise reasonable care to avoid any actions or inactions that you can reasonably anticipate could harm your neighbor. The people most immediately and directly impacted by an act are the neighbors. When there is a possible likelihood of danger as a result of the defendant's actions, there is an obligation to exercise care. It is impossible to define carelessness or neglect; rather, it can only be measured against a standard or norm.


The standard of care that must be met is not the highest standard probable, but rather the standard that a normal, reasonable man would use in the defendant's situation. The level of caution that a man must use in a given circumstance depends on how clear the risk is. If there is a significant risk, extreme caution is required.


A minimal amount of caution is necessary if there is any potential for harm. They will be expected to take the same precautions that any reasonable, responsible person would take. The skill necessary to perform the act one undertakes is possessed by the prudent guy. A person is required to use greater caution than an average man or has intentionally taken on a higher level of responsibility.


2. DUTY MUST BE OWED TO THE PLAINTIFF

Mere negligence on the part of the defendant is insufficient unless it can be proven that the plaintiff was owed a duty. Even if the plaintiff may have been injured, he cannot bring a lawsuit if the defendant owes him no responsibility. It is the violation of the duty of care that must be present in the negligent conduct, therefore the carelessness is not in dispute if the act is performed with the same degree of care and protection that any other prudent person would use.


3. BREACH OF DUTY OF CARE

It refers to failing to use the proper caution that is called for in a given circumstance. The standard of care is that of a prudent man acting in a reasonable manner. The next stage is to demonstrate that the defendant violated the duty of care that it had to the claimant if the defendant had one.


In the case of State of Bihar v. SK Mukherji, the Asst Engineer in the Irrigation Department assigned to the Kosi Project was given a boat by the department to cross the river; however, due to the swift current, the boat capsized, and the respondent's son drowned. The state was found negligent for failing to include a life-saving device in the boat in the Kosi, which is known for its turbid current.


In the case of Klaus Mittelbachert v. East India Hotel Ltd., the judgment was overturned since the claimant passed away while the appeal was pending because a five-star hotel failed to give the visitor the 50 lakhs in damages that were required.


4. THE INJURY CAUSED BY THE PLAINTIFF

It is essential that the plaintiff has actually suffered harm as a result of the defendant's actions. Additionally, the plaintiff must show that the harm he has suffered is a direct and not indirect result of the defendant's actions.


The claimant need only demonstrate that the defendant's negligence directly caused the loss or harm in order to satisfy this criterion. Generally speaking, a causal link can be drawn between the defendant's activities and the claimant's loss or injury.


The 'but for' test, a basic assessment, is used. The claimant only needs to demonstrate that they would not have suffered the loss or harm if it weren't for the defendant's acts. The defendant will only be held accountable if it can be demonstrated that their activities are the most likely cause of the loss or harm when there are other potential causes.


A casualty department doctor sent a patient home irresponsibly in the case of Barnett v. Chelsea and Kensington HMC (1969), and the patient passed away. The patient was poisoned with arsenic and would have died regardless of what the careless doctor may have done, hence the doctor was not found to be accountable for any damages. The actual loss cannot be "too remote."


It is crucial that persons only be held accountable for damages they might have reasonably predicted would result from their acts. The Waggon Mound (1961) is a case that is frequently used to explain this idea. In Sydney Harbour, oil from the defendant's boat leaked and came into contact with cotton waste that had been dumped into the water. Because of its special composition, the oil could not possibly catch fire on water. However, the cotton caught fire, which then ignited the oil, setting it ablaze and damaging the claimant's wharf. The real source of the fire was deemed to be too remote to hold the defendants accountable for the harm caused by the fire.


DEFENCES

1. CONTRIBUTORY NEGLIGENCE

In a case of contributory negligence, the plaintiff's damages are subject to reduction "to the extent the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage," according to Section 12 of the Civil Law Act 1956 revised 1972.


To establish contributory negligence, one must show that the plaintiff failed to exercise ordinary care for his own safety and that his disregard of his own safety contributed to the accident that resulted in his damages. Contributory negligence occurs when a person knew or should have known that, if he did not act in a wise and reasonable manner, he may injure himself. This calculation must also account for the likelihood that others may have been negligent.


As a result, the court must determine what is "just and equitable" when allocating damages, and one important consideration is how much the plaintiff neglected to take care of his own safety.


2. VOLENTI NON-FIT INJURIA-VOLUNTARY ASSUMPTION OF RISK

A plaintiff who knows there is a risk but places himself in a situation where that risk could even result in death is not entitled to damages. A plaintiff will not be entitled to any compensation if the voluntary assumption of risk, also known as non-fit (where there is an agreement, there is no injury), is established as a defense. Risk-taking must be done voluntarily only if:

  • The plaintiff was aware of the danger.

  • Plaintiff took the risk voluntarily. This is known as voluntary action.

  • In Morris v. Murray case, it was mentioned that a plaintiff will not be deemed to have acted voluntarily if they were prevented from doing so by external factors.


3. COMPARATIVE NEGLIGENCE

It is the process of comparing the defendant's and plaintiff's negligence. In a case of comparative negligence, the plaintiff's negligence would not prevent recovery but instead limit it to the amount that it contributed to the harm.


Contributory negligence used to be completely disallowed by the courts as a ground for awarding any damages. According to the conventional viewpoint, a person was not eligible for compensation for their injuries if they in any way contributed to the accident. Most jurisdictions now use a comparative negligence strategy in an effort to lessen the severe, frequently unfair effects brought on by this strategy.


To determine comparative negligence, there are two methods:

  • PURE COMPARATIVE NEGLIGENCE: The plaintiff's damages are totaled, then they are diminished to account for how much of the harm they contributed to. For instance, if a plaintiff received Rs 10,000 in damages and the court or jury found that she was 25% to blame for her injury, she would only receive Rs 7,500.


  • MODIFIED COMPARATIVE NEGLIGENCE: The most frequent method is this one. If the plaintiff is determined to be either equally or more at fault for the harm that resulted, they are not going to be compensated. In other words, the plaintiff must not be more than 50% responsible for the harm that results in order to be entitled to damages.


CONCLUSION

To conclude that in the context of tort law, negligence refers to failing to take a particular action or to take a particular action that a wise or reasonable person wouldn't have taken in the same circumstances. As we looked at in this article, there are two sorts of negligence. Negligence on both criminal and civil grounds. Criminal negligence occurs when someone acts in a way that clearly threatens the security of human life.


Criminal negligence is an act that goes beyond simple fault or a justifiable accident, and those who commit it must be aware of the potential harm that results from their actions. Civil negligence, on the other hand, is the act of failing to exercise ordinary care, often known as due diligence. What a prudent person would have done in an identical situation is used to determine the standard of civil negligence. Additionally, there is a distinct difference between the two terms. Negligence can be either criminal or civil, and each has a different definition, burden of proof, and consequences.


Therefore, different types of negligence can be found in the situations that have been mentioned. While some forms of negligence may be considered civil, others may be considered criminal. When we stop engaging in careless behavior, we will also stop tolerating it, and only then will we start to take more care with how we act, how we speak, and how we behave.

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