LLB NOTES: First Year: Law Of Torts: Unit II: Specific Torts-I

NEGLIGENCE

Negligence is defined as the absence of such care as was the duty of the defendant to use or exercise. It is conduct that fails to meet the standard required by law to safeguard others. It can be committed against a person or their property.

Winfield defines negligence as “a breach of a legal duty to take care, which results in damage to the plaintiff.”

Essentials of Negligence

To claim negligence, a plaintiff must prove the following:

1. Defendant owed a duty of care to the plaintiff.
2. This duty was breached.
3. This breach caused the plaintiff to suffer damage or loss.

• Duty of Care

The defendant must owe some duty to the plaintiff which they did not fulfil. This duty could have arisen in the course of a contract or maybe a statutory duty. The duty of care must not be a mere moral, religious or social duty. It must be a legal duty.

It must act as an obligation recognized by law, and if avoided, it can be reasonably assumed that it will risk damage to others.

Whether a duty exists in a particular case is determined by the standard of reasonable foreseeability of injury. This implies that the defendant’s conduct could reasonably lead to a dangerous result. If the injury to the plaintiff was not reasonably foreseeable, the defendant will not be held liable.

• Breach of Duty

Not taking the due care is required in a particular case. The law does not require the greatest possible care to be taken but requires the care a reasonable man will take in the given circumstances.

The amount of care expected also depends on the magnitude of risk negligence can cause. Eg. A person holding a loaded gun is expected to take more care than a person holding a butter knife.

• Damages

It finally must be proved that the breach of this duty was the cause of damage. The damage cannot be too remote to the consequence.

Res Ipsa Loquitur- “the thing speaks for itself”

The burden of proof of negligence as a general rule is on the plaintiff. However, in certain cases, it can be determined from the facts that the defendant was negligent. The maxim applies to cases where a presumption of negligence can be made from the facts.

Important Case- Donoghue v. Stevenson 1932 (Snail in a Bottle Case)

The Appellant brought a ginger beer produced by the defendant. Upon drinking it, the appellant was discovered a decomposed snail in the bottle. She subsequently suffered health issues due to it. Plaintiff brought an action against the manufacturer to recover damages. The defendant claimed they had no duty of care to the plaintiff.

Lord Atkin redefined the concept of duty of care in this case. Stating that manufacturer owes a duty to their consumers, and they must ensure their product did not contain any dangerous substance. There was an absence of reasonable care.

Medical Negligence

A skilled professional is expected to have different standards of duty of care when providing a medical opinion.

A doctor consulting a patient owes certain duties of care to a patient. A breach of these duties gives a patient right of action.

To prove medical negligence, theBolam test (Bolam v. Friern Hospital Management committee) is used. The case established that negligence for a medical man means failure to act in accordance with the standards of a reasonably competent medical man. The doctor is required to reach the standard of a responsible medical opinion that a reasonably average medical practitioner will provide.

NERVOUS SHOCK

Claim for damages can be made without showing the direct impact of the injury. Causing nervous shock alone is not actionable in torts, but some injury must happen as a result of the shock. This may be caused by words or actions of the defendant. The shock and injury must be natural and direct consequences of the wrongful act of the defendant.

The damage caused can be in the form of some loss to property or harm to a person, but the damage need not be physical.

The person has to show the necessary chain of causation between the nervous shock and the traumatic event. Nervous shock must be foreseeable to a reasonable man. To decide if the defendant is liable, the test of ordinary prudence is applied to the plaintiff to see if the traumatic event would have a similar reaction from any other reasonable man.

Important Case- Bourhill v. Young (1943)

A motorcyclist and a car were involved in a collision that led to the motorcyclist’s death. A fish-wife went to the scene of the accident after the body of the cyclist was removed and suffered a fright due to the excessive blood on the scene. She was pregnant at the time, and due to the shock, the baby was stillborn. She sued the representative of the motorcyclist.

The court held that the injury to the woman was not foreseeable by the cyclist, and he owed no duty of care to her and was not liable.