Negligence in law of Torts


     Indian law of torts is based on the English common law. Therefore, the law of negligence is ratified and amended by the courts of India on the principles of justice, equity and good conscience. The term Negligence is descended from the Latin word negligentia, which means ‘failing to pick’, Generally, the term negligence signifies the act of being careless and legally, it signifies the failure to exercise a standard of care which the doer as a reasonable man should have exercised in a specific situation. 

    Definition of Negligence:

    As per the Winfield and Jolowicz, Negligence is the breach of a legal duty of care by the plaintiff which results in undesired damage to the plaintiff.

    In Blyth v. Birmingham WaterWorks Co, 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.

    It can be characterized in three forms-

    Nonfeasance: It connotes the act of failure to do something which a person should have done. For example, failure to carry out the reconstructing of an old building when it should have been done.

    Misfeasance: It connotes the act of not doing an action accurately when it should have been done. For example, reconstruction of an old building but doing so by using very bad quality materials constituting a major possibility of a collapse which harms people.

    Malfeasance: It signifies the act of doing something which should not have been done from starting. For example, using products that are not authorized and combustible to carry out the reconstruction of an old building, therefore, transforming the building into a firetrap risking an accident.

    Essentials of Negligence Tort:

    1. Duty to Take Care:

    There is an essential condition under the liability for negligence that the defendant owes a legal duty towards the plaintiff. For instance, in case of Grant v. Australian Knitting Mills Ltd., 1935 AC 85;  From a retailer, the plaintiff purchases two sets of woolen underwear. After wearing it, he encounters a  skin disease. This problem was caused due to the more sulphates present in the wool and not cleaning it at the time of washing it due to the negligence at the time of washing it. In this case, the manufacturers are completely liable as they are not able to execute their duty accurately.

    2. Duty to whom:

    Donoghue v. Stevenson, 1932 AC 562, adds further to this idea and diversifies the scope of duty by stating that the duty so raises extends to our neighbor. While explaining who my neighbor is, LORD ATKIN states that the answer must be “the persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question”.

    3. Duty must be towards the plaintiff:

    It is not sufficient that the defendant owes a duty to take care of. A duty should be there, following to which, the defendant should owe a duty of care towards the plaintiff.

    4. Breach of Duty to take care:

    One essential condition for the liability in negligence is that the plaintiff must prove that due to the negligence the defendant is not able to execute his duties.

    In Municipal Corporation of Delhi v. Subhagwanti, AIR 1966 SC 1750; a number of persons died due the collapsing of a clock-tower in the heart of the Chandni Chowk, Delhi.

    The normal life of such structures are normally 40 45 years but the tower was around 80 years old. The Municipal Corporation of Delhi is held liable as it is under their hands and they are not able to take care and execute their duties proficiently.

    Defenses available in a suit for negligence:

    1)Contributory negligence by the plaintiff

    Contributory negligence signifies that when the instant 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 deemed to be the author of his own wrong. It is based on the maxim volenti non fit injuria 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.

    2) An Act of God

    An Act of God is a direct, vicious 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.

    3) Inevitable Accident

    An inevitable accident can also be called as a defense of negligence as it signifies an accident which had no chance of being impeded by the exercise of ordinary care, caution, and skill. It means a physically unavoidable accident.

    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.