S.

S JAIN SUBODH LAW COLLEGE

MANSAROVAR, JAIPUR

Affiliated to Dr. Bhimrao Ambedkar Law University

Session 2020-21

Subject – LAW OF TORTS

TOPIC:- CONCEPT OF NEGLIGENCE

Submitted To: Submitted By:

Mrs.Monika Chaudhary Mukul Maheshwari

Assistant professor of law BA.LL.B student

1st Sem (Section A)

 DECALARATION

I, Mukul Maheshwari do hereby declare that, this project titled “CONCEPT OF NEGLIGENCE”
is an guidance of Mrs.Monika Chaudhary (Asst. prof. of Law) at S.S jain Subodh Law College
in fulfillment for the award of the degree of B.A.LL.B. at the Bhimrao Ambedkar Law
University.

I also declare that , this work is original, except where assistance from other resources has been
taken and necessary acknowledgement for the same has been made at appropriate places. I
further declare that, this work has not been submitted either in whole or in part, for any degree or
equivalent in any other institution.

Date: July 15, 2021 Mukul Maheshwari

Place: Jaipur 1st sem (SEC-A)

 CERTIFICATE

To whomsoever it may concern

This is to certify that the Project entitled “CONCEPT OF NEGLIGENCE” submitted by

MUKUL MAHESHWARI in fulfillment for the award of the degree of BA.LL.B in S.S Jain
Subodh Law College, Jaipur is the product of research carried out under my guidance and
supervision.

Mrs.Monika Chaudhary

Asst. Prof. of Law

S.S jain Subodh Law college

 ACKNOWLEDGEMENT

I acknowledge with profundity, my obligation to Almighty god and my parents for giving me the
grace to accomplish my work, without which this project would not have been possible.

I express my heartfelt gratitude to my respected faculty, Mrs.Monika Chaudhary(Asst.Prof.of

Law) for providing me with valuable suggestions to complete this dissertation.

I am especially to all my faculty members at S.S jain subodh Law college who have helped me
imbibe the basic research and writing skills.

Lastly, I take upon myself.the drawbacks and limitations of this study, if any.

Date: July 15, 2021

Place: Jaipur

Mukul Maheshwari
 INDEX

1. INTRODUCTION
2. DEFINITION OF NEGLIGENCE
3. ESSENTIALS OF NEGLIGENCE
4. DIFFERENCE
5. DEFENSES AVAILABLE
6. LATIN MAXIM
7. CASE LAWS
8. CONCLUSION
 INTRODUCTION
It is already known that the Indian law of torts is based on the English common law. Thus, the
law relating to negligence is adopted and modified by the courts of India on the principles of
justice, equity and good conscience. The term Negligence is derived from the Latin word
negligentia, which means ‘failing to pick up’. In the general sense, the term negligence means
the act of being careless and in the legal sense, it signifies the failure to exercise a standard of
care which the doer as a reasonable man should have exercised in a particular situation.
Negligence in English law emerged as an independent cause of action only in the 18th century.
Similarly in Indian law, the IPC, 1860 contained no provision for causing the death of a person
by negligence which was subsequently amended in the year 1870 by inserting section 304A.

DEFINITION OF NEGLIGENCE
According to Winfield and Jolowicz, Negligence is the breach of a legal duty of care by the
plaintiff which results in undesired damage to the plaintiff1.

In  Blyth v. Birmingham Water Works Co2, Negligence was defined as the omission to do
something which a reasonable man would do or doing something which a prudent or reasonable
man would not do.

ESSENTIALS OF NEGLIGENCE
To commit the tort of negligence, there are primarily 6 main essentials that are required. An act
will be categorized as negligence only if, all the conditions are satisfied namely –

1)Duty Of Care:- It is one of the essential conditions of negligence in order to make the person
liable .It means that every person owes, a duty of care, to another person while performing an
act. Although this duty exists in all acts, but in negligence, the duty is legal in nature and cannot
be illegal or unlawful and also cannot be of moral, ethical or religious nature.

2) The Duty must be towards the plaintiff:- A duty arises when the law recognizes a
relationship between the defendant and the plaintiff and requires the defendant to act in a certain
manner toward the plaintiff. It is not sufficient that the defendant owed a duty of care towards the
plaintiff but it must also be established which is usually determined by the judge.

3)Breach of Duty to take care:- It’s not enough for a plaintiff to prove that the defendant owed
him a duty of care but he must also establish that the defendant breached his duty to the plaintiff.
A defendant breaches such a duty by failing to exercise reasonable care in fulfilling the duty. In
1
https://blog.ipleaders.in/negligence-in-the-law-of-torts
2
(1856) 11 Ex Ch 781, 156 ER 1047
other words, the breach of a duty of care means that the person who has an existing duty of care
should act wisely and not omit or commit any act which he has to do or not do.

4)Actual cause or cause in fact:- In this scenario, the plaintiff who is suing the defendant for
negligence has the liability to prove is that the defendant’s violation of duty was the actual cause
of the damages incurred by him. This is often called the “but-for” causation which means that,
but for the defendant’s actions, the plaintiff would not have incurred the damages. For example,
When a bus strikes a car, the bus driver’s actions are the actual cause of the accident.

5)Proximate cause:- Proximate cause means “legal cause,” or the cause that the law recognizes
as the primary cause of the injury. It may not be the first event that set in motion a sequence of
events that led to an injury, and it may not be the very last event before the injury occurs.
Instead, it is an action that produced foreseeable consequences without intervention from anyone
else. A defendant in a negligence case is only responsible for those damages that the defendant
could have foreseen through his actions.
6)Consequential harm to the plaintiff:- Proving that the defendant failed to exercise reasonable
care is not enough. It should also be proved that the failure of the defendant to exercise
reasonable care resulted in damages to the plaintiff to whom the defendant owed a duty of care.

The harm may fall into the following classes:-

a.) Bodily harm
b.) Harm to the reputation
c.) Harm to property
d.) Financial Loss
e.) Mental Harm.

When such damage is proved, the defendant is bound to compensate the plaintiff for the damages
occurred.

DIFFERENCE BETWEEN CRIMINAL NEGLIGENCE AND CIVIL

NEGLIGENCE
 Criminal negligence is said to take place when a person acts in a particular way which is
an extreme departure from which a reasonable person would act in a similar or same
circumstance. The difference in civil negligence is that the conduct may not be seen as a
radical departure from the way a reasonable person would have responded.
 Civil negligence occurs when a person fails to exercise ordinary care or due diligence but
criminal negligence relates to a conduct that is considered so extreme and rash that it is a
clear divergence from the way an ordinarily prudent person would act and is considered
to be more than just a mistake in judgment or distraction.
  In civil negligence, there is a lesser burden of proof because the plaintiff in such a case
only has to prove that it is most likely that the defendant was negligent. But in criminal
negligence, the plaintiff has to prove “beyond a reasonable doubt” that the defendant was
negligent which is the highest standard of proof which means that the evidence is so
strong that there is no other logical explanation besides the fact that the defendant acted
with criminal negligence.
 The punishment for a person who was liable in a civil negligence case only extends to the
extent of damage caused to the plaintiff i.e compensation for the damages.
In criminal negligence cases, the punishment is much more serious and can be convicted
for a prison term, fine and probation supervision. Example the punishment for criminal
negligence amounting to death under section 304A of IPC can extend to 2 years of jail
and fine or both.
 For example, if someone driving a vehicle under the influence of drugs and alcohol and
caused the death of an individual, it would amount to criminal negligence since this is
considered extreme carelessness on their part.
But if a housekeeper in an office is mopping the floor and has forgotten to keep a ‘wet
floor’ signboard, any accident that occurs would amount to civil negligence as there was
only a lack of due diligence on the part of the housekeeper but not extreme neglect.

DEFENSES AVAILABLE IN A SUIT OF NEGLIGENCE

1) Contributory negligence by the plaintiff

Contributory negligence means that when the immediate cause of the damage is the negligence
of the plaintiff himself, the plaintiff cannot sue the defendant for damages and the defendant can
use it as a defense. This is because the plaintiff in such a case is considered to be the author of
his own wrong. It is based on the maxim volenti non fit iniuria which states that if someone
willingly places themselves in a position which might result in harm, they are not entitled to
claim for damages caused by such harm.

The plaintiff is not entitled to recover from the defendant if it is proved that-

1) The plaintiff by the exercise of ordinary care could have avoided the consequence of the
defendant’s negligence.
2)The defendant could not have avoided the consequence of the plaintiff’s negligence by an
exercise of ordinary care
3)There has been as much want of reasonable care on the plaintiffs part as on the defendants part
and the former cannot sue the latter for the same. The burden of proving contributory negligence
rests on the defendant in the first instance and in the absence of such evidence, the plaintiff is not
bound to prove its non-existence.
In the case of shelton Vs L & W Railway3, while the plaintiff was crossing a railway line, a
servant of the railway company who was in charge of crossing shouted a warning to him. Due to
the plaintiff being deaf, he was unable to hear the warning and was consequently injured. The
court held that this amounted to contributory negligence by him.

2) An Act of God
An Act of God is a direct, violent and sudden act of nature which by any amount of human
foresight could have been foreseen and if foreseen could not by any amount of human care and
skill have been resisted. Thus such acts which are caused by the basic forces of nature come
under this category. For example storm, tempest, extraordinary high tide, extraordinary rainfall
etc.

If the cause of injury or death of a person is due to the happening of a natural disaster, then the
defendant will not be liable for the same provided that he proves the same in the court of law.
This particular defence was talked in the case of Nichols v. Marsland4 in which the defendant
had a series of artificial lakes on his land. There had been no negligence on the part of the
defendant in the construction and maintenance of the artificial lakes. Due to unpredictable heavy
rain, some of the reservoirs burst and swept away four country bridges. It was held by the court
that the defendant could not be said to be liable since the water escaped by the act of God.

3) Inevitable Accident
An inevitable accident can also be called as a defense of negligence and refers to an accident that
had no chance of being prevented by the exercise of ordinary care, caution, and skill. It means a
physically unavoidable accident.

In the case of Brown v. Kendal5 the plaintiff’s and defendant dogs were fighting and their owners
attempted to separate them. In an effort to do so, Defendant beat the dogs with a stick and
accidentally injured the Plaintiff, severely injuring him in the eye. The Plaintiff brought suit
against the Defendant for assault and battery. It was held that the injury of the plaintiff was as a
result of an inevitable accident.

3
1964
4
(1876) 2 Ex D 1.
5
60 Mass. 292 (1850)
 LATIN MAXIM
Res ipsa loquitur :- Res ipsa loquitur is a Latin phrase that means “the thing speaks for itself.” It
is considered to be a type of circumstantial evidence which permits the court to determine that
the negligence of the defendant led to an unusual event that subsequently caused injury to the
plaintiff. Although generally the duty to prove that the defendant acted negligently lies upon the
plaintiff but through res ipsa loquitur, if the plaintiff presents certain circumstantial facts, it
becomes the burden of the defendant to prove that he was not negligent.

Thus the following are the three essential requirements for the application of this maxim:-

1)The thing causing the damage must be under the control of the defendant or his servants
2)The accident must be such as would not have happened in the ordinary course of things
without negligence.
3)There must be no evidence of the actual cause of the accident.

This doctrine arose out of the case of Byrne vs Boadle6

The plaintiff was walking by a warehouse on the road and suffered injuries from a falling barrel
of flour which rolled out of a window from the second floor. At the trial, the plaintiff’s attorney
argued that the facts spoke for themselves and demonstrated the warehouse’s negligence since no
other explanation could account for the cause of the plaintiff’s injuries.

LANDMARK CASES RELATED TO NEGLIGENCE

1. Municipal Corporation of Delhi v/s Subhagwanti and Others7

FACTS:- Three suits for damages were filed by the respondents as heirs of three persons who
died as a result of the collapse of the Clock Tower in Chandni Chowk, Delhi, belonging to the
appellant-Corporation, formerly the Municipal Committee of Delhi. The building was 80 years
old and the life of the structure of the top storey, having regard to the type of mortar used, could
be only 40 to 45 years and the middle storey could be saved for another 10 years. The collapse of
the Clock Tower was due to the thrust of the arches on the top portion. If an expert had examined
this building specifically for the purpose he might have found out that it was likely to fall. When
the building was inspected after the collapse it was found that it had deteriorated to such an
extent that it was reduced to powder without any cementing properties.

JUDGEMENT:- It is true that the conventional rule is that it is for the plaintiff to prove
negligence and not for the defendant to disprove it. However, there is an exception to this rule
6
(2 Hurl. & Colt. 722, 159 Eng. Rep. 299, 1863)
7
1966 AIR 1750, 1966 SCR (3) 649
which applies where the circumstances surrounding the thing which causes the damage are at the
material time completely under the control or management of the defendant or his servant and
the happening does not occur in the ordinary course of action without negligence on the
defendant’s part.  The principle has been clearly expressed in Halsbury’s Laws of England, 2nd
Edn., Vol. 23, at p. 671 as follows: “An exception to the general rule that the burden of proof of
the alleged negligence is within the initial instance on the plaintiff which occurs wherever the
facts already established are such that the proper and natural thesis immediately arising from
them is that the injury, complained was caused by the defendant’s negligence, or where the event
charged as negligence tells its own story’ of negligence on the part of the defendant, the story so
told being clear and not open to more than one interpretation. To these form of cases, the
maxim res ipsa loquitur applies. Where the rule applies, a presumption of fault is raised against
the defendant, which, if he is to succeed in his defence, must be overcome by contrary evidence,
the burden on the defendant being to show how the act complained of could reasonably happen
without negligence on his part.”

2. The Municipal Corporation Of ... vs Smt. Sushila Devi & Ors8

FACTS:- On 18th August, 1964, in the evening, late Suresh Chander and his brother Ramesh
Chander were going on a scooter from their office to their residence. The deceased was driving
the scooter and his brother was riding his pillion. When they were passing against Sant
Permanand Blind Relief Mission Building situated at 20, Alipur Road, a branch of the neem tree
standing there suddenly broke down and fell on the head of the deceased. His head was crushed.
He was rushed to Irvin Hospital where in spite of medical care and attendance, he died the next
day at about 10 a.m. A piece of wood was found embedded into his brain for which a surgery
had also to be performed on the deceased. The deceased was survived by a widow, three minor
sons and a minor daughter and his mother. All the six brought a suit for damages claiming Rs.3
lacs.

JUDGEMENT:- A learned Single Judge sitting on the Original side of the High Court held the
Municipal Corporation of Delhi liable for damages in torts and granted a decree of Rs.90,000/-
by way of compensation payable to the widow and the children of the deceased. Two Letters
Patent Appeals were preferred. The Municipal Corporation sought for the suit being dismissed
while the claimants sought for enhancement in the amount of compensation. The Division Bench
dismissed the appeal filed by the Corporation but at the same time partly allowed the appeal
preferred by the claimants enhancing the amount of compensation to Rs.1,44,000/- payable with
interest calculated at the rate of 6 per cent per annum from the date of suit, i.e., 5.8.1966 till
17.9.1970 when the amount was deposited by the Corporation in the Court for payment to the
successful claimants. The Division Bench also allowed interest at the rate of 3 per cent per
annum on Rs.90,000/- from the date of deposit in the Court till the date of actual withdrawal of
the amount by the claimants and interest at the rate of 6 per cent per annum on Rs.54,000/- from

8
7 May, 1999
17.9.1970 till payment. The reasons for the award of additional interest calculated at the rate of 3
per cent per annum on Rs.90,000/- and the legality thereof we shall deal with separately.

3. State of Haryana and Others v. Smt. Santra9

FACTS:- Smt. Santra, poor laborer woman with 7 children, underwent sterilization through a
state-run program in order to avoid a future pregnancy. After the sterilization was performed,
Smt. Santra was provided with a certificate signed by authorized government medical officers
and was assured that the procedure had been successful and she therefore would not become
pregnant again. She subsequently became pregnant and ultimately gave birth to a girl. When she
initially contacted doctors at the hospital, she was told she was not pregnant. However, when the
pregnancy became apparent, she was told the sterilization procedure had not been successful.
The procedure had only been done on one fallopian tube, with the other remaining untouched.
Smt. Santra requested an abortion but was told that this would be dangerous to her life. Smt.
Santra filed a civil claim for damages of rupees two lakhs (about $3,000 USD), citing medical
negligence.

JUDGEMENT:- The Supreme Court recognized that the doctor who performed the procedure
had been negligent by failing to perform any action on one of Smt. Santra’s fallopian tubes.
Therefore, the question at issue in this case was who had to bear the expenses of bringing up the
child. The Supreme Court considered analogous case law from United Kingdom, Scotland,
United States, South Africa, New Zealand and Australia finding that there was no consensus: in
some cases, courts refused to grant damages for birth of a child, viewing this as being against
public policy, whereas in many others, damages were offset against the benefits derived from the
pleasure of having and bringing up that child. The Court also considered cases where damages
were granted if the sterilization had been undertaken for social and economic reasons.

The Supreme Court differentiated this case from those wherein damages had been rejected on the
basis of public policy or due to the pleasure derived from having a child, recognizing that India is
a highly populated developing country and the state itself had launched programs to combat
population growth (e.g. sterilization programs). Further, in the context of persons existing below
the poverty line, the Supreme Court considered they should not be denied a claim for damages
for medical negligence, stating that “damages for the birth of an unwanted child may not be of
any value for those who are already living in affluent conditions, but those who live below the
poverty line or who belong to the labor class cannot be denied the claim for damages on account
of medical negligence.”

CONCLUSION
9
24 April, 2000
Negligence as a tort has evolved from the English law and accepted by the Indian law as a
substantially important tort. As discussed negligence is of two types, civil and criminal and each
has various repercussions. In order to prove that an act was negligent, it is necessary to prove all
the essentials namely duty, breach of duty, damages and actual and proximate cause. An
important maxim regarding negligence i.e Res Ipsa Loquitur is used by the courts when a
negligent act cannot be explained. Also, the defences in a suit for negligence can be used by the
defendant to defend himself from a suit issued by the plaintiff.

REFERENCES
 https://blog.ipleaders.in/negligence-in-the-law-of-torts
 https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2779963/