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