“tortious liability in constituting negligence
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Transcript of “tortious liability in constituting negligence
DR. RAM MANOHAR LOHIA NATIONAL LAW UNIVERSITY, LUCKNOW
Subject- TORT
Topic: “tortious liability in constituting negligence”
Submitted To- Submitted By-
Mrs.Gitu Singh KETAN SURI
Assistant professor Roll No- 66
Department of legal studies Section A
DR. RMLNLU B.A LLB(Hons.),Sem-I
TABLE OF CONTENTS:
1. Introduction
2. Objective of study
3. Research question
4. Research methodology
5. Literature review
6. Definition of Neglagence
7. History
8. Negligence
I. Ingredients
II. Types of negligence
III. Defenses
IV. Landmark cases
V. awarding of damages
9. Conclusion
10. Bibliography
INTRODUCTION:
the term ‘tort’ is the derived from the latin term “tortum” which means “to twist”. It is
counterpart to English term ‘wrong’. Tort is committed in the form of tortious act. Tortious
act refers to that conduct, which violates the legal right of other person. Negligence is a part
of tortious act and the tort of negligence and its principles of liability are based upon a
common duty of care.
The aim of law of tort is to compensate the aggrieved party for the loss suffered.
Compensation is shifting or transferring loss suffered by the victim to the defendant. It is a
system of loss distribution. The “deterrent” aim of tort is designed to reduce the frequency
and the severity of accidents. Deterrence is a part of the justification for a tort that it identifies
what actions should be avoided and deters people from engaging in them. Fear of legal
liability and the resulting awards of damages provides an incentive to person, both injurers
and potential victims, to indulge in safer conduct, both by avoiding hazardous activities and
by increasing the level of safety precaution they provide. The primary aim of tort as being to
reduce the disruption which accidents cause to the lifestyle of the people and those dependent
upon them.
The difficulty presented by the law of tort is that it has developed with only limited reference
to these aims are that it may fail to achieve any of them properly. In addition, deterrence and
compensation are almost certainly compatible with each other.
OBJECTIVE OF RESEARCH
this research is aimed at identifying the wrong of negligence as a tort. a detatiled research to
show the ingredients essential to constitute the tort and the remedies available thereafter,
supported by various landmark cases. The objective of this project is to highlight and
understand the ingredients that form the essence of constituting the tort of negligence and
remedies and defences available to escape the liability of negligence. Negligence is a large
and amorphous subject, and all parts of law on it are interlocking. Through illustrations and
cases, the project will reflect theory of negligence.
RESEARCH METHODOLOGY
Doctrinal Methodology is followed throughout the project. Secondary Sources have to be
used due to absence and impossibility of First Hand surveys and information.
The content is descriptive and analytical. An in-depth study of negligence as a tort and
principles propounded in cases dealing with negligence, and Analysis of those excerpts and
their application has been done and presented accordingly.
LITERATURE REVIEW
Law of Torts by R.K Bangia is a wonderful book for understanding of torts. It elucidates the
tort of negligence with lucidity and clearly. It also cites the important landmark cases
concerning negligence.
Also the book of Team Satyam and the Tort module by geetu ma’am provides for an n-
depth area for research.
LIST OF CASES REFERRED
1. Hedley Byrne and Co. Ltd. v. Heller and Partners, [1964] AC 465.
2. Donoghue v. Stevenson, [1932] AC 532.
3. Jones v. Boyce [1816] 1 Stark 493
4. Caparo v Dickman (1990).
5. Jolly v Sutton London Borough Council (2000)
6. Kent v Griffiths (2000)
7. Bolton v Stone 1951
8. Osman v Ferguson (1993)
9. Hill v Chief Constable of South Yorkshire (1990)
10. MPC v Reeves (2001)
11. Vaughan v. Menlone (1837)
12. Marshall v Osmand 1982.
13. Scott v London and St. Katherine Docks (1865)
14. DOBSON V. DOBSON
DEFINITION OF NEGLIGENCE:
It is doing of something which a reasonably prudent person would not do, or the failure to do
something which a reasonably prudent person would do under like circumstances produces or
contributes substantially to producing such damage, so it can reasonably be said if not for the
negligence, the loss, injury or the damage would not have occurred. Negligence may be a
legal cause of damage even tough it operates in combination with the act of another, a natural
cause, or some other cause if the other cause occurs at the same time as the negligence and if
the negligence contributes substantially to producing such damage.
In the modern law of tort, the word negligence has two meanings. Firstly, it indicates the state
of mind of a party in doing act and secondly, it means a conduct which the law deems
wrongful. Originally the word was generally used in its subjective sense as a particular mode
of doing another wrongful act. In this sense negligence means inadvertence or carelessness. It
means blameworthy inadvertence in the consequences of conduct insofar as a reasonable man
would have adverted to them.1
Negligence in the sense of conduct refers to the behavior of a person who, although
innocent of any intention to bring about the result in question, has failed nevertheless to act
up to the standards set by law, which is usually that of a reasonable man. When a statue,
prescribes a certain standard of behavior with a view to avoiding injury to persons, it has
been said that the failure to come up to that standard is statutorily equivalent to negligence,
without proof of carelessness.2
HISTORY:
Negligence as an independent tort was established by the following decision
Donoghue v Stevenson3
This case is the starting point for the modern UK tort of negligence. Despite being a
Scottish case, it is equally an English precedent because the House of lords stated that
they were declaring the law of England as well the next major development was the
decision in
1 P.S.A. Pillai, Law of Tort, Eastern Book Company, Lucknow, 2009, p.160 2 . Ibid. 3 [1932] AC 532.
Hedley Byrne and Co. Ltd. v. Heller and Partners 4
The fact of economic loss was recognized in Hedley Byrne and Co. Ltd. v. Heller and
Partners, wherein a banker negligently gave a reference to one who acted thereon and
suffered damage; it was held that the duty is plain and the damage was not too remote.
In other words it was held by that a duty of care in making statements was a legal
possibility.
I. INGREDIENTS OF NEGLIGENCE:
THE PRIMA FACIA CASE FOR NEGLIGENCE REQUIRES:
1. Duty is owned to the plaintiff by the defendant
Duty of care is a legal obligation imposed on an individual requiring that they
exercise a reasonable standard of care while performing any acts that could
foreseeable harm other. Duty of care may be considered a formilisation of the implicit
responsibilities held by an individual towards another individual within society.
Breach of duty of care, if resulting in an injury, may subject an individual to liability
in tort. Duty of care is an important prerequisite in the tort of negligence as the duty of
care must exist and must have been breached for the tort to occur.
The duty of care between individuals may exist between individual not currently
related, but related in some other manner as defined by law. The duty arises by reason
of relationship in which one person stands to another person or authority such a
relationship may not arise in variety of circumstances.
FOR INSTANCE,
a) An engineer or construction company involved in erecting a building may be
reasonably responsible to tenants inhabiting the building many years in the future.
b) Duty of care is evident between drivers of automobiles on the road. Each
individual driver owes a duty of care to each other to prevent accidents and drive
in a reasonable manner, in the case if an automobile accident, drivers not paying
attention or driving irresponsibly will have breached that duty of care.
4 Dillon v. Legg, 68 Cal. 2d 728 [1968] and Molien v. Kaiser Foundation Hospitals, 27 Cal. 3d 916 [1980].
DONOGHUE V. STEVENSON [1932] often referred to as “the snail in the
bottle case”
The idea of a duty of care in the tort of negligence has developed through
judges making decisions in cases. This started in a negligence case of Donoghue v
Stevenson (1932) where the claimant (Mrs. Donoghue) went to a cafe with a
friend. The friend bought her a drink of ginger beer and ice cream. The bottle of
ginger beer had dark glass so that the content could not be seen. After drinking
some of it, Mrs. Donoghue poured the rest out and then saw that it contained a
dead (and decomposing) snail. This appalled Mrs. Donoghue and she became ill
as a result of the sight and the ginger beer she had already drunk.
Mrs. Donoghue had no direct claim against the manufacturer or the shopkeeper
based on contract because she did not buy the ginger beer. Mrs. Donoghue’s
friend could claim against the café in contract, but had not suffered any loss apart
from the fact that she had bought defective goods; she could get her money back,
but nothing for Mrs. Donoghue’s illness. Therefore, Mrs. Donoghue claimed
damages against the manufacturer, Stevenson. Her claim was for the resulting
shock and stomach upset, which she claimed was caused through drinking the
ginger beer. The practical efforts of this case was to provide individuals with a
remedy against the suppliers of consumer goods, even where the complainant had
no privity of contract with those individual or company tortfeasors.
Donoghue v Stevenson (1932) was the first successful attempt to set out a general
principle with respect to the concept of the duty of care. How as lawyers realised
this principle could be manipulated to be used with different types of situations,
the test was reformed to form the three-part test in the case of Caparo v
Dickman (1990).
The general test set in “Caparo” requires three elements to be demonstrated:
1. It was reasonably foreseeable that a person in the claimant’s position would be
injured,
2. There was sufficient proximity between the parties,
3. It is fair, just and reasonable to impose liability on the defendant.
Two issues arise in terms of duty of reasonable care:
o Foreseeability
o Standard of care
FORESEEABILITY-
An objective test: would a reasonable person in the defendant’s position could augur
that someone in the claimant’s position might be injured? Whether the defendant
owes a duty to the plaintiff or not depends on reasonable forseeability of the injury to
the plaintiff. If at the time if the act or omission the defendant could reasonably forsee
injury to the plaintiff he owes a duty to prevent that injury and the failure to do that
make him liable. Duty to take care is the duty to avoid doing or omitting to do
anything, the doing or omitting to do which may have as its reasonable and probably
consequence injury to other, and the duty is owed to those whom injury may
reasonably be anticipated if the duty is not observed.
In Donoghue v Stevenson (1932) it can be seen that a snail getting in a bottle will
affect the consumer of the contents. This is a consequence of producing food that has
foreign bodies in it, and a reasonable person in the defendant’s position (a soft drink
manufacturer) would foresee that the a consumer might be injured.
In Kent v Griffiths (2000) a doctor called for an ambulance for a patient suffering
from a serious asthma attack to hospital immediately. The ambulance control centre
gave the affirmation to the doctor. The ambulance, without a satisfactory reason,
failed to arrive within a reasonable time. The patient, shortly after, suffered a heart
attack which could have been avoided if she had been taken to hospital earlier. It was
reasonably foreseeable that the claimant would suffer harm from the failure/delay of
the ambulance to arrive.
In Jolly v Sutton London Borough Council (2000) a boy, aged 14, was paralysed
when a boat he was trying to repair slipped on top of him. The boat had been
abandoned on land belonging to the council residing nearby. The council knew that
the boat was in dangerous condition and that children were likely to play on it. The
House of Lords held that attempting to repair the boat was akin to normal play, so the
injury to the claimant was reasonably foreseeable.
Standard of care
The law requires taking of two points into consideration to determine the standard of
care required:-
a) The importance of the object to be attained
b) The magnitude of the risk
c) The amount of consideration for which services, etc. are offered.
PROXIMITY
Even if the harm is reasonably foreseeable, a duty of care will only exist if the
relationship of the claimant and the defendant is sufficiently close.
in the case of Osman v Ferguson (1993) where the police officers knew that there
was a real risk of an attack on victim. The victim was the murdered by the attacker.
The court held that there was a sufficiently close relationship between the police and
the victim. However, the case did not succeed because it was ruled that it not fair, just
and reasonable to impose a duty of care on the police. Therefore, it means that to
establish negligence it is not enough to prove that the injury was forseeable, but a
reasonable likelihood of the injury has also to be shown because “forseeability doesn’t
include any idea of likelihood at all.
FAIR, JUST AND REASONABLE
this the test to determine whether it is fair, just and reasonable to impose a duty of
care, is really a matter of public policy. The courts are usually reluctant to impose a
duty on public authorities, as seen in the case of Hill v Chief Constable of South
Yorkshire (1990) where it was pointed out that imposing a duty on police could lead
to policing being carried out in a defensive way which would divert attention away
from the suppression of crime, leading to lower standards of policing, not higher ones.
However, there are some circumstances where the police do owe a duty of care. In
the case of MPC v Reeves (2001) the police took a man into custody who was a
prisoner known to be at risk of committing suicide. Whilst in custody he hanged
himself in his cell. The court found that the police owed him a duty of care.
4. BREACH OF THE DUTY
Breach of duty means not taking due care which is required in a particular case. The
standard of care demanded is that of a reasonable or a prudent man. If the defendant
acted like a reasonable or a prudent man, there is no negligence.
The standard of care that the defendant must exercise towards the plaintiff is that of a
reasonable, ordinary and prudent person in the same or similar circumstance.
Once a claimant has proved the duty of care is owed he must then show that the
defendant breached that duty. This is merely when the defendant falls below the
standard of care appropriate to the duty. Breach of duty is measured objectively by the
‘reasonable man test’.
The reasonable man is the ordinary person performing the particular task: he is
expected to perform it reasonably competently. Thus, one riding a motorcycle, he is
expected to be a reasonably competent rider who can ride a motorcycle. Therefore, a
number of factors that can be considered to raise or lower the standard. This is logical
because a reasonable person will rightly take greater risks in an emergency, and take
more care when the risk of harm is greater. For a breach of duty to occur, the court
will take four factors into account:
Potential seriousness of injures in comparison to the importance of the act
causing it:
The law doesn’t require greatest possible care but the care required is that of a
reasonable man under a certain circumstances. In some cases, the negligence
is small as compared to the importance of the act carried out. In such cases,
the law considers the risk of injury to be unavoidable or worth it. The law
permits taking chances of some measure of risk so that in public interest
various kinds of activities should go on. The first case which introduced the
concept of reasonable standard of care in the case of negligence was Vaughan
v. Menlone (1837).
Vaughan v. Menlone (1837)- in this case defendant hay risk had been built
with a precautionary chimney to prevent the hay from spontaneously igniting,
but it ignited, anyway. Despite warnings by the plaintiff he kept saying ‘he
will change’ but after five weeks hay ignited and spread out to the plaintiffs
land, burning down the two of the plaintiff cottages. The defendant was held
liable by the court.
but cases like some orchid trees got decayed due to absorption of excess water
from the canal through roots, the state government, who had constructed the
canal for irrigation purpose, was not held liable.
The degree of risk involved:
the greater the risk, the more the defendant has to take care. (Bolton v Stone
1951). The degree of care varies according to the likelihood of the harm and
seriousness of injury. A person handling a loaded gun is expected to take more
care than a person carrying an ordinary stick. When there is some apparent
risk due to abnormal condition, necessary care must be taken to prevent the
harm.
The cost of precautions:
the courts will see how high the risk is involved, and then take into account
the expense of taking precautions to prevent that risk (Bolton v Stone and
Latimer v AEC).
The importance of the activity:
in an emergency, sometimes it is not possible to reflect, think of a possible risk
(Marshall v Osmand 1982).
Damage to the plaintiff
it is also necessary that the defendant breach of duty must cause damage to the
plaintiff. The plaintiff has also to show that the damage caused is not too
remote as a consequence of the defendant negligence.
Standard for experts –
where the defendant has some expertise, for example, he is a doctor carrying
out medical treatment, then the standard of care is that which would normally
be expected from a doctor.
In some situations, it is difficult to know exactly what happened, although it is
found obvious that the defendant was negligent. In these situations a rule
called res ipsa loquitur.
Res Ipsa Loquitur
which means (things speak for themselves) was developed by judges. It is not
a rule of law but ‘rule of evidence’. This doctrine only shifts ‘ onus of proof’
its is applicable only where there is a probability that accident is due to
negligence is materially greater then it is due to any other cause and
circumstances contributing to the accident are within the defendant control. In
other words, it couldn’t be anyone but the defendant who caused the harm. In
such cases, it is sufficient for the plaintiff to prove accident and nothing more.
If the claimant proves these two things then the defendant has to prove that he
was not negligent. This rule was shown in the case of Scott v London and St.
Katherine Docks (1865) where the claimant was hit by six bags of sugar
which fell from the defendant’s warehouse. The claimant could not say why
the bags had fallen but the court ruled that the facts spoke for themselves and
it was up to the defendant to prove that he was not negligent.
a. Causation: the defendant caused the harm to occur
In the majority of cases the claimant’s negligence will have contributed
to the accident which led to his injury (as where a driver or pedestrian fails
to keep a proper look-out or an employee omits to turn off a machine
before cleaning it) but this is not necessary for a finding of contributory
negligence: what is essential is that the claimant’s conduct contributes to
his damage. Thus there may be a reduction where a motor cyclist fails to
wear a crash helmet,5 where a passenger in a car does not wear his seat
belt, or where a man rides in a dangerous position on the outside of a dust
cart, or rides with a rider whom he knows to have taken substantial
quantities of alcohol.
b. Damages: the plaintiff suffers harm
it refers to the harm the plaintiff has suffered due to the negligent act of the
defendant. It is basically the physical injury done through the negligent act
of the defendant. A person owes a duty of care to it’s neighbors.
II. TYPES OF NEGLIGENCE
Contributory negligence
The first case in which the principles of contributory negligence were evolved was
Butterfield v. Forster6
a doctrine of common law that if a person was injured in part due to his/her own
negligence (his/her negligence "contributed" to the accident), the injured party would
not be entitled to collect any damages (money) from another party who supposedly
caused the accident. Under this rule, a badly injured person who was only slightly
negligent could not win in court against a very negligent defendant.
Composite negligence
When the negligence of two or more persons results in the same damage, there is said
to be Composite Negligence, and the persons responsible for causing such damage are
known as Composite Tortfeasors.
III. DILEMMA PRODUCED BY NEGLIGENCE:-
Where a person is placed in a perilous situation or in a dilemma due to the
negligent act of another and the person in danger, just to save himself, in the
agony of the moment moves in a manner which turns out to be dangerous and
sustains injuries, he will be able to get damages from the other although he could
5 Froom v. Butcher [1976] QB 286. 6 [1809] 11 East 60.
have avoided the harm if he had remained calm and quiet in his original place.
In Jones v. Boyce7 the plaintiff, a passenger on the top of the defendant’s coach,
was placed by the negligence of the defendant in a perilous alternative of to jump
or not to jump. He jumped and was injured. Had he kept his seat he would have
escaped. But he was able to recover from the defendant for he had acted
reasonably and not from a rash apprehension of danger. The court does not
demand of the plaintiff the care of a superman, but of a superman, but of a man of
ordinary nerve and presence of mind.
IV. DEFENCES IN NEGLIGENCE
1) Contributory negligence
In common law, contributory negligence was a complete defense. When the plaintiff
was guilty of contributory negligence he could not claim any compensation from the
negligent defendant. The rule that contributory negligence was a complete defense
worked a great hardship to the plaintiff because for slight negligence on his part, he
may lose his action against the defendant who was more to blame.
a) Doctrine of last opportunity’s rule
In the law of TORTS, the doctrine that excuses or negates the effect of the plaintiff's
contributory Negligence and permits him or her to recover, in particular instances,
damages regardless of his or her own lack of ordinary care.
The rule of last clear chance operates when the plaintiff negligently enters into an
area of danger from which the person cannot extricate himself or herself. The
defendant has the final opportunity to prevent the harm that the plaintiff otherwise
will suffer. The doctrine was formulated to relieve the severity of the application of
the contributory negligence rule against the plaintiff, which completely bars any
recovery if the person was at all negligent.
7 [1816] 1 Stark 493
There are as many variations and adaptations of this doctrine as there are
jurisdictions that apply it. Four different categories have emerged, which are
classified as helpless plaintiffs, inattentive plaintiffs, observant defendants,
and inattentive defendants.
b) Doctrine of alternative danger
It is the Dilemma Principle or the Choice of the Evils or the Agony of the
moment means: Where the plaintiff is suddenly put in a position of imminent
personal danger by the wrongful act of the defendant and he takes a reasonable
decision to avoid the danger and acts accordingly and suffers injuries consequently,
the defendant is liable.
V. LANDMARK OR IMPORTANT CASES
DOBSON V. DOBSON
On March 14, 1993, Cynthia Dobson, who was then in her 27th week of
pregnancy, was driving her motor vehicle in a snowstorm to Moncton, New
Brunswick. She lost control of her vehicle on a patch of slush and struck an
oncoming vehicle. The infant child with whom she was pregnant, Ryan Dobson,
was allegedly injured while in utero as a result of this accident, and was delivered
prematurely by caesarean section later that same day. Ryan was born with
permanent mental and physical disability, including cerebral palsy. When the
infant, by his grandfather and litigation guardian, launched a tort claim in
negligence against his mother for the damages that he sustained after his birth as a
consequence of her allegedly negligent driving, the legal stage was set for what
would become one of the most unusual and important cases in tort law to be heard
by the Supreme Court. For the first time Canadian courts would be asked to
examine, and pronounce upon, the legal theory in relation to maternal tort liability
for prenatal negligence.
VI. AWARDING OF DAMAGES CONCLUSION:
To claim compensation a person must suffer harm. Recovery of compensation
depends upon the type of harm suffered. These harms may fall in following
cases:-
a) Physical harm, i.e. harm to body;
b) Harm to reputation.
c) Harm to property, i.e. land and buildings and interests pertaining thereto, and
his goods;
d) Economic loss; and
e) Mental harm or nervous shock.
Classification of damages
There are several types of damages a court may award.
General and special damages
General damages are determined by the court as they are not capable of being precisely
calculated at the time of trial. They must be stated but no precise figure can be placed on
them. General damages are strictly described as damages which are presumed to flow
from torts which are actionable per se (without the need to prove loss or damage).
Special damages are losses which can be precisely calculated at the time of trial and are
presented in the form of a calculation. Special damages are strictly described as damages
which the claimant can prove as part of their action. Therefore, in Negligence a claim for
actual loss is classified as special damages.
The classification of damages, as general or special, has practical relevance for the
calculations relating to interest payments.
Nominal damages
Nominal damages are awarded in torts which are actionable per se. Negligence requires
the loss or damage to be proved therefore, nominal damages do not apply in Negligence
claims.
Exemplary or punitive damages
If it is particularly difficult to assess he damages that should be awarded to a claimant, in
monetary terms, then the courts can impose exemplary or punitive damages. The courts
use these damages to punish the defendant and to act as a deterrence to others, so can
award high sums in extreme cases.
CONCLUSION
When the plaintiff by his own want of care contributes to the damage caused by the
negligence or wrongful conduct of the defendant, he is considered to be guilty of contributory
negligence. It is one’s failure to avoid getting hurt by the defendant or it is the fault of the
claimant in the very occurrence of the accident. When the negligence of two or more persons
results in the same damage, there is said to be Composite Negligence, and the persons
responsible for causing such damage are known as Composite Tortfeasors. The five elements
of negligence should be recognizable under tort law. However, as professor Robertson of
Texas University has noted the five elements needs to be kept separate, this is because in
practice there arises lots of conceptual mistakes or confusions.
The use of vicarious liability as a defense against a case of law on tort of negligence has
widely been disputed over its rationale. Many scholars have argued that the use of vicarious
liability is only intended to find legally a more solvent defendant.
Damages awarded are usually compensatory but not punitive in nature. For the sake of the
family friendly fishing company, the damages it would have to pay would most probably
include a punitive element. The punitive element would arise if the employee, Neil would
declare that indeed he had asked the company to change the boats gear, although the
company declined. This refusal of the company to use standard tools for profiteering reasons
would be termed as an act of maliciousness or acting in an callously indifferent way.
BIBLIOGRAPHY:
1. BOOKS:
Prasad,Akash, Torts handout, Team Satyam, CP, 2012
Singh Gitu, Law of Tort, vol.-I, 2013,
Bhangia, P.N., law of tort.
All India Reporter