ACADEMIC SESSION: 2020-21

Law of Torts – Assignment IV (GCT 2)

Topic: TORT OF NEGLIGENCE

Submitted to: Submitted by:

Ms. Rabab Khan mam Ayush Saini

Asst. Professor (Law Faculty) BA LLB (Hons.)

Aligarh Muslim University Semester I

Roll No.: 40
 ACKNOWLEDGEMENT

Thanks to the almighty god who gave me the strength to accomplish the assignment with sheer
hard work and honesty.

May I observe the protocol to show my deep gratitude to the venerated faculty’s Assist. Prof.
Rabab Khan mam for her kind gesture in allotting me such a wonderful and elucidating topic.
Ma'am, your sincere and honest approach have always inspired me and pulled me back on track
whenever I went astray.

It would be very unjust to forget the friends, while expressing thanks to one and all. Honestly
speaking I feel proud to have friends.

Last, but no means the least, I would like to thanks all the members of AMU family in general
and my blooming and charismatic friends in particular for their wholehearted co-operation
throughout the odyssey.

Ayush Saini

Enr. No.: GM-4347

Sec.: A
 RESEARCH METHODOLOGY

This project is purely doctrinal and based on primary & secondary sources such as websites,
books and internet sources. The referencing style followed in this project is Indian Law
Institute's format of citation. This Research process deals with collecting and analyzing
information to answer questions. The Research is purely descriptive in its boundaries of the
topic.
 SYNOPSIS

 INTRODUCTION

 COMPONENTS OF NEGLIGENCE

o Duty of Care
o Breach of Duty
o Damages

 DEFENCE – CONTRIBUTORY NEGLIGENCE

o General Principles

o Last-Opportunity Rule

 JUDICIAL PRONOUNCEMENT

 CONCLUSION

 BIBLIOGRAPHY
 INTRODUCTION

DEFINITION: Negligence is a failure to exercise the care towards others which a reasonable or
prudent person would do in the circumstances, or taking action which such a reasonable person
would not.

LEGAL DEFINITION: Negligent tort means a tort committed by failure to act as a reasonable
person to someone to whom s/he owes a duty, as required by law under the circumstances.
Further, negligent torts are not deliberate, and there must be an injury resulting from the breach
of the duty. Examples of negligent torts are car accidents, slip and fall accidents, and most
medical malpractice cases.

The jurisprudential concept of negligence defies any precise definition. Eminent jurists and
leading judgements it is said have assigned various meanings to negligence. 1 The apex court in
Mathew v. State of Punjab2, observed:

Negligence is the breach of duty caused by the omission to do something which a reasonable
man, guided by those considerations which ordinarily regulate the conduct of human affairs
would do, or doing something which a prudent and reasonable man would not do. Actionable
negligence consist in the neglect of the use of ordinary care or skills towards a person to whom
the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff
has suffered the injury to his person or property.

1
Jacob Mathew v. State of Punjab and another, AIR 2005 SC 3180
2
Ibid., quoting Ratanlal and Dhirajlal, Law of torts, 2002, 441-42
The definition involves three constituents of negligence:

1. A legal duty to exercise due care on the part of the party complained of towards the
party complaining the former’s conduct within the scope of the duty.

2. Breach of the said duty

3. Consequential damage.

Negligence is accidental as distinguished from "intentional torts" (assault or trespass, for

example) or from crimes, but a crime can also constitute negligence, such as reckless driving.
Negligence can result in all types of accidents causing physical and/or property damage, but can
also include business errors and miscalculations, such as a sloppy land survey. In making a claim
for damages based on an allegation of another's negligence, the injured party (plaintiff) must
prove: a) that the party alleged to be negligent had a duty to the injured party---specifically to the
one injured or to the general public, b) that the defendant's action (or failure to act) was
negligent---not what a reasonably prudent person would have done, c) that the damages were
caused ("proximately caused") by the negligence. An added factor in the formula for determining
negligence is whether the damages were "reasonably foreseeable" at the time of the alleged
carelessness. If the injury is caused by something owned or controlled by the supposedly
negligent party, but how the accident actually occurred is not known (like a ton of bricks falls
from a construction job), negligence can be found based on the doctrine of res ipsa loquitor
(Latin for "the thing speaks for itself").

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.
Negligence in the sense of conduct refers to the behaviour 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 behaviour 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.

Through civil litigation, if an injured person proves that another person acted negligently to
cause his injury, he can recover damages to compensate for his harm. Proving a case for
negligence can potentially entitle the injured plaintiff to compensation for harm to their body,
property, mental well-being, financial status, or intimate relationships. However, because
negligence cases are very fact-specific, this general definition does not fully explain the concept
of when the law will require one person to compensate another for losses caused by accidental
injury. Further, the law of negligence at common law is only one aspect of the law of liability.
Although resulting damages must be proven in order to recover compensation in a negligence
action, the nature and extent of those damages are not the primary focus of negligence cases.
Negligence suits have historically been analyzed in stages, called elements, similar to the
analysis of crimes. An important concept related to elements is that if a plaintiff fails to prove
any one element of his claim, he loses on the entire tort claim.

For example, let's assume that a particular tort has five elements. Each element must be proven.
If the plaintiff proves only four of the five elements, the plaintiff has not succeeded in making
out his claim.

Now, negligence has become an independent, specific tort itself. Although it is cleared a mental
element, still Judges in deciding whether a man is guilty of negligent conduct or not apply an
external standard and do not take into consideration his real mental attitude at the moment of the
act. Thus to determine whether a particular driver has been negligent in driving his car along the
public road, or whether a doctor has been negligent in performing a particular operation, they
apply an external standard of a reasonable man placed in similar circumstances.

If the Judge is of opinion that a reasonable man placed in similar circumstances as the defendant
would not have acted in that way and caused damage to the plaintiff, then the defendant is liable.
The reason for the application of this external standard by Judges in England was due to increase
of railway accidents and other injuries from industrial machinery in that country during the
nineteenth century. Then it would be easy for even wilful wrongdoers to say that they never
intended to do any harm to any person, much less to the particular plaintiff, it would never
intended to do any harm to any person, much less to the particular plaintiff, and it would be very
difficult for the latter to prove the mental state of such a defendant. The existence of a duty
situation or a duty to take care is thus essential before a person can be held liable in negligence.

The conduct of a reasonable man as envisaged in English common Law could be seen
from the decision of Vaughan v. Menlove. The plaintiff had some interested in certain cottages
on land adjoining that on which the defendant had erected a haystack. The plaintiff’s cottages
were damaged by a fire which had spread from the haystack which was insured. When the
condition of the stack, and the probable and almost inevitable consequence of permitting it to
remain in its then state were pointed out to him, he abstained from the exercise of the
precautionary measures that common prudence and foresight would naturally suggest, and very
coolly observed that he would change it. It was manifest that he adverted to his interest in the
insurance office.

The defendant was held liable. Tindal, C.J. while rejecting the argument of the defendant that he
had acted bona fide to the best of his judgment and that should be accepted, said thus: Instead,
therefore, of saying that the liability for negligence should be co-existence with the judgment of
each individual, which would be as variable as the length of the foot of each individual, we ought
rather to adhere to the rule which requires in all cases a regard to caution such as a man of
ordinary prudence would observe.
Lord Macmillan remarked thus in Glasgow Corporation v. Muir:3 The standard of foresight of
the reasonable man eliminates the personal equation and is independent of the idiosyncrasies of
the particular person whose conduct is in question. A reasonable man does not mean a paragon
of circumspection. He can be calm, cool, collected and is expected to take normal precautions for
his own safety even in an emergency.

In Poonam Verma v. Ashwin Patel the negligent doctor caused the death of a patient by
prescribing medicines of the discipline for which he was not registered under the law. His
negligence was held to be negligence per se which is defined in BLACK LAW DICTIONARY
as under: Negligence per se: conduct, whether of act or omission, which may be declared and
treated as a negligence without any argument or proof as to the particular surrounding
circumstances, either because it is a violation of a statue or valid municipal ordinance, or because
it is so probably opposed to the dictates of common prudence that it can be said without
hesitation or doubt that no careful person would have been guilty of it. As a general rule, the
violation of a public duty, enjoyed by law for the protection of person or property, so constitutes.

3
(1943) A.C. 448, at 457.
 COMPONENTS OF NEGLIGENCE

There are three components of negligence they are: Duty, Breach and Damage.

In law to constitute negligence, it must possess the following three conditions:

a) That the defendant owes to the plaintiff a legal duty to exercise care;

b) That the defendant was in ‘breach’ of that duty that is failure to exercise that the ‘duty of
care’ and

c) That as a result of breach, the plaintiff suffered damage.

Thus, in strict legal analysis, ‘negligence’ means more than needless or careless conduct,
whether in omission or commission. It connotes the complex concept of duty, breach and
damage suffered by the person to whom the duty owed.

DUTY OF CARE
 In law, there is no negligence unless there is in the particular case a ‘duty to take care’. The duty
of care is an essential element in civil wrong4. Law does not take cognisance of carelessness in
the abstract. It concerns itself only when there is a duty to take care and where failure of that
duty has caused damage5. The duty signifies that one must not interfere with the lawful act of
another6. The duty of care performs two distinct functions. Firstly, if the claimant is to succeed, it
must be proved that the circumstances in which his damage or loss was caused were capable of
give rise a duty of care and secondly, the defendant actually owed him a duty on the particular
facts of the case. The first requirement raises question of law while the second raises questions of
mixed law and fact.

a) Idea of Duty: The duty is not the sole factor to decide the question of negligence, it has to be
decided on some other grounds such as contributory negligence, remoteness of damage,
inevitable accident, volenti-non-fit injuria. The critique states there are limits of action of
negligence, which are nothing to do with the things referred above .

b) Criteria of duty: The question how to determine there is or is not, a duty? It is suggested that
the task of the court is to follow the established precedent. What is the alternative way of
deciding the notion of duty, in the absence of relevant precedent? Under this situation, the court
has to examine the circumstances which warrant the existence of duty to be careful 7. Is it the
general rule of law? It can be seen the first attempt to formulate a principle made by Lord Brett
MR in Heaven Vs Pender8 and Lord Atkin in Donoghue v. Stevenson9 that it is a ‘right of every
injured person to demand relief ‘. This rule implies that every one must take reasonable care to

4
Jolowicz JA, Ellis Lewis T, et.al., Winfield  and Jolowicz on Tort 205, (London: Sweet and Maxwell, 9th edn.,
1971).
5
(1932) AC 562.
6
Jolowicz JA, Ellis Lewis T, et.al., Winfield  and Jolowicz on Tort 205, (London: Sweet and Maxwell, 9th edn.,
1971).
7
Pollock F, The Law of Torts: A Treatise on the Principles of Obligations Arising from Civil Wrongs in the
Common Law 455 (Oxford University Press 1967, 11th edn.).

8
(1883) 11 QBD 503, 509.
9
(1932) AC 562.
avoid acts or omissions which he can reasonably foresee would be likely to injure his neighbour.
Neighbour is one who is so closely and directly affected by another’s act, this rule is what is
known as principle of “neighbour”.

c) Duty towards whom: It is not enough to prove circumstances which give rise to a notion of
duty, it is also necessary to establish that defendant owed a duty of care towards him. The test for
the existence of a duty owed to the person is in substance, ‘neighbouring principle’ that is
foresight of the reasonable man. For this purpose all circumstances must be taken into account
including the sequence of events leading to the accidents 10. It is not mere sufficient to prove that
the injury to the claimant would have been foreseeable and it is also not required that injured
should necessarily be identifiable by the defendant.

BREACH OF DUTY

Breach of duty means non-observance of due care which is required in a particular situation.
What is standard of care required? The standard is that of a reasonable man or an ordinarily
prudent man. If the defendant has acted like a reasonably prudent man, there is no negligence. As
stated by Alderson B. in Blyth v. Birmingham Waterworks Co.,11

“Negligence is the omission to do something which a reasonable man, guided upon those
considerations which ordinarily regulate the conduct of human affairs, would not do, or doing
something which a prudent and reasonable man would not do”. The law requires the caution
which a prudent man observes. “We ought to adhere to the rule which requires in all cases a
regard to caution such as a man of ordinary prudence would observe…. The care taken by a

10
. Woods v. Duncan (1946) AC 401.
11
. (1856) II Ex. 781, 784, Smith v. L. & S.W. Rail Co., (1870) L.R. 5 C.P. 98 at p. 102; Bridges v. Directors, etc. of
N.L. Ry., (1873-74) L.R. 7 H.L. 231, 233; Bengal Nagpur Railway Co. Ltd. v. Taraprasad Maity, (1926) 48 C.L.J.
45; Governor General in Council v. Mt. Saliman, (1948) Pat. 207.
prudent man has always been the rule laid down”.12 The standard is objective and it means what
a judge considers should have been standard of a reasonable man. “It is…left to the judge to
decide what, in the circumstances of the particular case, the reasonable man would have in
contemplation, and what accordingly, the party sought to be made liable ought to have
foreseen.”13

Standard of care required

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 –

The law does not require greatest possible care but the care required is that of a reasonable man
under certain circumstances. The law permits taking chance of some measure of risks so that in
public interest various kinds of activities should go on.

” As has been pointed out, if all trains in this country were restricted to the speed of five miles an
hour, there would be fewer accidents, but our national life would be intolerably slowed down.
The purpose to be served, if sufficiently important, justifies the assumption of the abnormal
risk.”14 A balance has, therefore, to be drawn between the important and usefulness of an act and
the risk created thereby.

Thus, a certain speed may not be negligent for a fire brigade vehicle but the same speed may be
an act of negligence for another vehicle

12
. Vaughan v. Menlove, (1837) 3 Bing N.C. 475.
13
. Glasgow Corporation v. Muir, (1943) A.C. 448, 457, per Lord MacMillan.
14
Dabron v. Bath Tramways, (1946) 2 AII E.R. 333, 336; Wall v. Hertfordshire Country Council, (1956) 1 W.L.R.
835; Also see Quinn v. Scott, (1965) 1 W.L.R. 1004.
 b) the magnitude of the risk-

The degree of care depends upon the risk involved in the act. The magnitude of a risk can be
determined with the help of two factors namely seriousness or gravity of the injury risked and the
likelihood of injury being in fact caused. The relevance of seriousness of the injury was
recognized by The House Of Lord in Paris v. Stepney Borough Council15, the plaintiff who had
only one good eye was blinded in the course of his employment. He contended, he was entitled
to the remedy because the employer did not provide him with a goggle which was in breach of
his duty to take reasonable care of his safety. It was observed that goggle should have been
provided as the plaintiff risked the greater injury of total blindness. As a reasonable and prudent
employer, the defendant would have known not only probability of an accident but also the
gravity of the consequences if an accident did occur. In addition to seriousness of injury, the
likelihood of injury should be considered in measuring/evaluating magnitude of the risk. If the
likelihood of injury to a person is so slight, failure to take precaution against the injury would not
be breach of duty. In Bolton v. Stone16, the plaintiff was standing on the highway road adjoining
to cricket ground when she was struck by a ball which had hit out of the ground, such an event
was foreseeable as it happened on three occasions. Nevertheless, taking into account such factors
as the distance from the pitch to the edge of the ground, the presence of a seven foot fence and
upward slope of the ground in the direction in which the ball was struck, the House of Lord
considered that the likelihood of injury to a person in the plaintiff position was so slight, and
allowing cricket to be played without having taken additional precautions such as increasing the
height of the fence, was not negligent.

15
(1951) AC 367.
16
(1951) AC 850, 886-889, per Radcliff L J.
Thus, in assessing the magnitude of the risk, it is important to notice that duty of care is owed to
the plaintiff himself and the injury which exposes risk to the plaintiff, should be known to the
defendant. If it is unknown and not reasonably known to the defendant, then it is irrelevant.

c) The amount of consideration for which services, etc. are offered-

The degree of care depends also on the kind of services offered by the defendant and the
consideration charged therefor from the plaintiff. For instance, one who purchases a glass of
water from a trolley in the street for 10 or 25 paise is entitled to safe drinking water which should
not ordinarily infect him. But if a person purchases a mineral water bottle for Rs. 10/- or 15/-,
then he can justifiably demand higher degree of purity. The manufacturer of water bottle cannot
be heard to say that so long he has made it equivalent to trolley man’s water, he has done his
duty. Similarly, a patient a admitted to a luxury hospital say for Rs. 3000 or Rs. 5000 a day
would be justified in demanding higher and sophisticated degree of care, comfort, convenience
and recovery than merely sterilization from infection as could be expected in the general ward of
a hospital.

In the same way. A person sipping a cup of tea at road side Dhaba for a rupee or fifty paise may
accept it as his luck if the chair offered to him collapses when he sits on it, but a person paying
Rs.50/- for a cup of tea at a five star hotel is entitled to a safer chair and a better quality of tea.
There should be no difference between a five star hotel owner and insurer so far as the safety of
the guest is concerned.17

17
See Klaus Mittelbachert v. East India Hotels Ltd., A.I.R. 1997 Delhi 201, at 209, 210 ( Single Judge).
DAMAGES

The third component of the tort of negligence is the claimant’s damage must have been caused
by the defendant’s breach of duty and must not be too remote a consequence of it 18. In case of
breach of contractual duty, the amount of damage will be assessed from the breach itself; in case
of breach of duty not founded on contract, the plaintiff has to prove that damage has been caused
to his person or property19. It is also necessary to prove that negligent act of the defendant is the
“direct and proximate” cause of the damage. If the causal connection between the negligent act
and damage is not direct, the damage is too remote; there is no remedy at law. The defendant is
not guilty of breach of duty, when he has taken reasonable care as everyone is expected to take,
the damage would have occurred. In such a case, plaintiff is not entitled to any remedy.20

Damages place a monetary value on the harm done, following the principle of restitutio in
integrum (Latin for "restoration to the original condition"). Thus, for most purposes connected
with the quantification of damages, the degree of culpability in the breach of the duty of care is
irrelevant. Once the breach of the duty is established, the only requirement is to compensate the
victim.

One of the main tests that is posed when deliberating whether a claimant is entitled to
compensation for a tort, is the "reasonable person". The test is self-explanatory: would a
reasonable person (as determined by a judge or jury) be damaged by the breach of duty. Simple
as the "reasonable person" test sounds, it is very complicated. It is a risky test because it involves
the opinion of either the judge or the jury that can be based on limited facts. However, as vague
as the "reasonable person" test seems, it is extremely important in deciding whether or not a
plaintiff is entitled to compensation for a negligence tort.

18
Woods v. Duncan (1946) AC 401. At pg. 83.
19
(1954) 2 QB 66.
20
Ibid. p. 158.
Damages are compensatory in nature. A compensatory damage addresses a plaintiff/claimant's
losses (in cases involving physical or mental injury the amount awarded also compensates for
pain and suffering). The award should make the plaintiff whole, sufficient to put the plaintiff
back in the position he or she was before Defendant's negligent act. Anything more would
unlawfully permit a plaintiff to profit from the tort.

Types of damage:-

 Special damages - quantifiable dollar losses suffered from the date of defendant's
negligent act (the tort) up to a specified time (proven at trial). Special damage examples
include lost wages, medical bills, and damage to property such as one's car.

 General damages - these are damages that are not quantified in monetary terms (e.g.,
there's no invoice or receipt as there would be to prove special damages). A general
damage example is an amount for the pain and suffering one experience from a car
collision. Lastly, where the plaintiff proves only minimal loss or damage, or the court or
jury is unable to quantify the losses, the court or jury may award nominal damages.

 Punitive damages - Punitive damages are to punish a defendant, rather than to

compensate plaintiffs, in negligence cases. In most jurisdictions punitive damages are
recoverable in a negligence action, but only if the plaintiff shows that the defendant’s
conduct was more than ordinary negligence.
 DEFENCE-CONTRIBUTORY NEGLIGENCE

Contributory negligence is a common law defense to a claim based on negligence, an action in

tort. It applies to cases where a plaintiff has, through his own negligence, contributed to the harm
he suffered. For example, a pedestrian crosses a road negligently and is hit by a driver who was
driving negligently.

Contributory negligence differs from contribution, which is a claim brought by one tortfeasor
against another to recover some or all of the money damages awarded to the plaintiff.

GENERAL PRINCIPLES

In trying claim arising out of death or injury caused by negligence, the court may be faced with a
situation where both the parties were negligent in some respect. The court is then to decide as to
whose negligence caused the death or injury. There are three possible answers to such a query
depending upon the circumstances of the case.

I. The defendant’s negligence alone caused the death or injury.

II. The deceased’s or the plaintiff’s negligence was solely responsible the death or injury.

III. The negligence of both the parties caused the death or injury.

It is obvious that if the finding is that the defendant’s negligence alone caused the death or
injury, then the plaintiff would succeed even if the plaintiff or the deceased was negligent in
some respect. Similarly, if there is no difficulty in holding that the plaintiff will fail if the
deceased’s or his negligence was solely responsible for the death or injury, as the case maybe
even if defendant was in some respect was negligent. In the third case, where the negligence of
both the parties caused the death or injury, the common law rule was that the plaintiff was to fail
even if the defendant was more at fault. In other words, if the deceased’s negligence contributed
in some degree to the death or injury, the defendant succeeded by pleading contributory
negligence irrespective of the fact that death or injury was largely caused by the defendant’s
negligence. The defence of contributory negligence means that the defendant or the plaintiff
failed to take the reasonable care of his own safety which was a material contributory to his
death or injury.21As the defence enabled the defendant to escape completely even when he was
more at fault, the courts were slow to infer that the negligence of the plaintiff was a contributory
factor.

THE LAST OPPORTUNITY RULE

The Courts devised the Last Opportunity Rule which meant that if the defendant had the last
opportunity to avoid the accident resulting in injury he was held solely responsible for the injury
in spite of the fact that the plaintiff was also negligent. 22This rule was further extended to cover

21
Municipal Corporation of Greater Bombay v. Laxman Iyer,(2003) 8 SCC 731, p. 737.
22
Davies v. Mann : (1842) 10 M7W 546 : 62 RR 698 is often referred to as the originator of the rule though the
words ‘last opportunity’ do not occur there. The plaintiff in this case fettered the forefeet of his donkey and turned it
into a narrow lane. It was run over by a heavy wagon not properly looked after longing to the defendant. The wagon
was going a little too fast and was not properly looked after by the driver. In suit for damages, the plaintiff
succeeded as the defendant by using ordinary care could have avoided the accident even though the plaintiff was
cases of constructive last opportunity.23 A more rational approach was made in cases involving
maritime collisions where the courts had the opportunity apportioning the damages under the
Maritime Conventions Act, 1911. In Admiralty Commissioners v. S.S volute24 a collision had
occurred between merchant ship volute and the destroyer Radstock.

The volute was at fault in changing her course without giving any proper signal and the Radstock
was at fault in increasing speed although she had the knowledge of the danger caused by the
change of course of Volute. It was held that both the ships were responsible for the collision even
though the last opportunity for avoiding the accident was with the Radstock. The decision in the
case of Volute was followed by the House of Lords in a non-maritime collision case and was
regarded as one of general application.25 In this case a crossroad collision between car and a
motorcycle was occurred. Who was negligent in this action was not clear. The House of Lords
held that that it was a sufficient direction. The defendant in this case while driving the car at
about thirty miles an hour along a main road, approached a point in the road without keeping a
proper look out or slowing down where it was crossed by a side road, when a man driving a
motorcycle came into the road into the side road without warning and a collision occurred in
which the motor cyclist was killed. In a suit for the damages filed by the widow of the deceased,
the defendant was not held liable under the common rule as the deceased was also negligent. The
case lays down that where the negligence of parties is contemporaneous as so nearly
contemporaneous as to make it impossible to say that either could have avoided the
consequences of others negligence, it would be said that negligence of both contributed to the
accident. Had it been a case of maritime collision the court could have apportioned the damages
as in case of Volute. But the question of contributory negligence has all cases to be decided on
same principles.
also at fault in turning the donkey into the lane with its forefeet fettered.
23
British Columbia Electric Ry. V. Loach (1916) 1 AC 719
24
(1922) 1 AC 129:38 TLR 255:126 LT 425:66 SJ 156 (HL). The Maritime Conventions Act, 1911, applies to India.
Under this act where by the fault of two or more vessels, damage or loss is caused to one or more of them, to their
cargoes, or freight or to any property on board, the liability to make good the damage or loss shall be in proportion
to the degree in which each vessel was in fault, the liability shall be apportioned equally. Where loss of life or
personal injuries are suffered by any person on board of a vessel owing to the fault of that vessel and any other
vessels or vessel, the liability of the owner of the vessels shall be joint and several subject to any defense which
could have been pleaded to an action for the death or personal injury inflicted.

25
American Main Line Ltd. v. Afrika, AIR 1937 PC 168
 The common law rule is that if the plaintiff’s or the deceased’s (in case of death) negligence
contributed in some degree to the injury or death, the action failed, was illogical and its origin
lay possibly in procedural and pleading anomalies of the common law. 26 The Madhya Pradesh
case of Vidya Devi contains an elaborate discussion why the principle of English Act should be
followed in India even though there is no corresponding act in India. 27 The Supreme Court
without any reference to the English act, has held that “it is now well settled that in case of
contributory negligence, courts have the power to apportion the loss between the parties as seems
just and equitable.

In Municipal Corporation of Greater Bombay v. Laxman Iyer28, the deceased who was
riding a bicycle came from the left side and took right turn contrary to traffic regulations. At that
time he was hit by corporation bus which was running at a moderate speed and the deceased was
visible from a distance of 30 feet. It was found that the deceased was negligent in taking a wrong
turn contrary to traffic regulations and the bus driver was negligent in not stopping the bus by
quickly applying the brakes and in omitting to blow the horn. The deceased’s negligence was
held to have 25% contributed to the damage and the compensation was reduced to that extent.

The act applies when the plaintiff’s act contributes to the ‘the damage’ and not
necessarily to the accident which results in damage although in most of the cases it would be so.

26
LORD WRIGHT, 13 Modern Law Review 5; Vidyadevi v. M.P. State Road Transport Corporation,1974 ACJ 374
(MP) 89
27
Vidyadevi v. M.P. State Road Transport Corporation, Supra : In this case there was a collision between a
bus and a motorcycle at a road intersection when the bus was going on the main road and the motorcycle
came from a side road. The person riding the motor cycle was killed. In a claim for damages by the widow
and the children it was found that the bus driver was negligent in not having a proper look out while
approaching the intersection and the deceased was negligent as he was driving at excessive speed while
coming from the side road to the intersection.It was further held that negligence of both the parties was liable
for the accident but the motorcyclist was far more to blame than the bus driver. The responsibility was
apportioned in form of two-third and one-third.

28
(2003) 8 SCC 731
Thus the damage would be reduced if a motorcyclist involved in an accident and suffering a
head injury did not wear a crash helmet. 29 It may be noticed that a omission to wear a helmet is
not negligence contributing to the accident but only to the damage suffered in the accident. This
example also illustrates that for being responsible for contributory negligence the plaintiff need
not be in breach of duty to the defendant. The question simply is whether the plaintiff or the
deceased had failed to take reasonable care of his own safety which had contributed to the
damage.30 As observed by Balakrishnan, J. “Negligence ordinarily means breach of a legal duty
to care, but when used in expression contributory negligence it does not mean breach of any
duty. It only means the failure by a person to use reasonable care for the safety of himself or his
property, so that he becomes the ‘author of his own wrong’.”

29
Oconell v. Jackson, (1972) 1 QB 270 : (1971) 3 A11 ER 129; (Damages were reduces by fifteen percent)
30
Sushma Mitra v. M.P. State Road Transport Corporation, 1974 ACJ 87 (MP) pp, 92, 95
 JUDICIAL PRONOUNCEMENT

Donoghue v. Stevenson31

Facts

On the 26 August, 1928, May Donoghue and a friend were at a café in Glasgow (Scotland).
Donoghue's companion ordered and paid for her drink. The cafe purchased the product from a
distributor that purchased it from Stevenson. The ginger beer came in a Dark bottle, and the
contents were not visible from the outside. Donoghue drank some of the contents and her friend
lifted the bottle to pour the remainder of the ginger beer into the tumbler. The remains of a snail
in a state of decomposition dropped out of the bottle into the tumbler. Donoghue later
complained of stomach pain and her doctor diagnosed her as having gastroenteritis and being in
a state of severe shock. Donoghue sued the David Stevenson, the manufacturer of the drink, for
negligence. She was unsuccessful at trial and appealed the decision to the House of lords.
Finally, her claim was successful.

Issue

Does the defendant owe a duty of care to the plaintiff being as there is no contract?

Held

In this case appeal allowed.

Reasons

31
(1932) A.C. 562
The majority stated that the manufacturer does owe a duty of care to the end consumer, for the
purpose of their product is to be consumed, not to be sold to a distributor.

Winterbottom v. Wright does not apply in this case, for that case was about breach of contract
and this one was not

The absence of a contract between two parties does not mean that a duty is not owed

Overall, the court found that in cases like this where the manufacturers are manufacturing goods
for the eventual consumption of consumers, they do have a duty to take reasonable care to ensure
that their products are safe for consumption.

You cannot knowingly foresee harming your neighbour. Neighbours are persons who are
reasonably foreseeable as being affected by your actions or omissions. A duty of care is not
owed to the world at large; it is owed to your neighbours.

Ratio 

Manufacturers owe the final consumer of their product a duty of care (at least in the instance
where the goods cannot be inspected between manufacturing and consumption). There need not
be a contractual relationship, or privity, in order for the final consumer to sue in negligence.
 CONCLUSION

To conclude, Negligence is a fault based tort. To be successful in an action a claimant must

prove all of the earlier discussed criterions. Negligence, as is true with all legal claims, is
comprised of various “elements,” identifiable components which draw together a cluster of
related issues for analysis and resolution. Too often, the elements of negligence are merely
recited and not explained. In formulating the elements here, this Idea can just scratch the surface
of each one, filling each with only elemental content. But the idea of this Idea is quite modest: to
identify and explain, compactly and conjointly, the three elements of negligence, the most
important tort. The law of negligence requires that for any claimant to succeed, the court must
be satisfied that the defendant in question owed him a duty of care, that there was breach of duty
by the defendant and finally the claimant's damages were as a result of the breach. 
 BIBLIOGRAPHY

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