Negligence

Question 1

What are the 4 essentials of negligence

Answer 1

1. The defendant was under a legal duty
2. The duty was owed to the plaintiff
3. Defendant committed a breach of duty
4. This breach was the direct and proximate cause of damage to plaintiff

Question 2

1. Legal duty/ duty of care

Answer 2

Lord atkin defined - legal duty to thy neighbor in donogue vs stevenson

Reasonable care to avoid acts which u can reasonably foresee as to be likely to injure your neighbor

Question 3

2. Breach of duty

Answer 3

Not taking due care that is required in a particular case.
1. The importance of object to be attained - the law permits taking chance of some measure of risk so that in public interest various kinds of activities should go on.

Latimer vs AEC Ltd - factory flooded- oily- spread sawdust - slipped
Held - acted reasonable . Risk was not so great to justify precautionary closing down of factory

2. Magnitude of risk- degree of care depends upon likelihood of harm.

Nirmala vs tn electricity board. - wire snapped. Electrocuted. Poor Maintainence.

3. The amount for which service was offered
   Bottled. Mineral water - higher degree of care

Question 4

Res ispa loquitor is not a rule of law but a rule of evidence

Answer 4

1. Generally bop on plaintiff- must prove negligence of defendant and his own damages. Certain cases bop shifts to D when there is presumption of negligence - res ipsa loquitor
2. The accident itself constitutes reasonable evidence of negligence in that particular circumstances

REQUIREMENTS

1. the thing under control of def
2. Wouldn’t have happened in ordinary circumstances w/o negligence
3. There must be NO evidence of actual cause of accident

Not applicable when
1. All facts relevant to injury is known. No room for assumption
2 . Under the control of 2 or more persons

When the accident is more consistent with defendants negligence then law raises this presumption against defendant. Rule of evidence such that onus shifts. However D need not prove how and why accident happens. Sufficient to satisfy the court that he was personally not liable

Question 5

Relevant case laws for res ipsa loquitor

Answer 5

1. MCD vs subhagwanti
   Presumption of negligence of defendants in maintaining the clock tower
2. Bryne vs Broadle
   A barrel flour fell from warehouse onto the plaintiff
   Presumption- d negligible
   Why? Thing under control of D harmed P. Injury wouldn’t have happened if stored prudently. No other possible explanation.

Question 6

What are the defences available against negligence

Answer 6

1. Act of God -
2. Inevitable accident - a drunk, newspaper against b’s windscreen
3. Contributory negligence

Question 7

Explain contributoey negligence as a defence to tort of negligence

Answer 7

When plaintiff by his lack of care contributes to the damage caused due to negligence of defendant -CN. P will be considered author of his own wrong

Principles

1. Ps own negligence- proximate cause of damage
2. Ps exercise of ordinary care would have averted the consequences of Ds negligence
3. There has been as much want of reasonable care on ps part as Ds

Ultimate quo- which party had it last in his power to avert the disaster.

bop- defendant

Illustration- attemoting to board a moving tramcar - loose footboard.

Question 8

Defence of CN not available

Answer 8

1. P not bound but D legally obligated to perform duty of care
   Illustration- travelling on train. Placed hand on window. Duty of staff to screw

2 . D had the later opportunity. W/o headlight. Wrong side. Enough time to recourse and avoid accident

3. Doctrine of alternative danger or dilemma principle.- plaintiff gets reasonable apprehension of threat and in order to escape such danger he acts rationally

JONES VS BOYCE - jumped out of coach bcoz defendant’s negligent driving - accident seemed evident.

Though P contributed to his injury he was placed in a situation to choose between 2 apparent dangers due to Ds negligence.
D can escape liability only if he proves that P acted with less than avg pridence

4. Children

Question 9

Cn doesn’t applybto children

Answer 9

Sufficient to show that as much care as a person of that age may reasonably take

But will not apply if accident causing thing is not likely to attract children.

Lynch vs nardin- left horse unattended. One climbed other pulled the bridle

Donovan vs cartage - unattended horse van - climbed - no horse to attract the child

Question 10

medical negligence

Answer 10

3 things - duty and breach, proximate, not foreseeable

1. Laxmi balakrishna vs trimbak bapu - “ The practitioner must bring to his task reasonable degree of skill and reasonable degree of care. Not the highest nor very law is required. Circumstances of the case “
2. Jacob mathew vs state
   - mere deviation from normal prof practice, judgement of error, patient didn’t respond to treatment no res ipsa loquitor, an accident
3. In a 2022 case report of medical council of India - on professional conduct of doctors

Question 11

Case study about ball being hit off the boundary

Answer 11

Not enough to prove that injury was forseeable but a reasonable likelihood of it happening. The duty is to guard against probabilities rather than bare possiblities

Question 12

Nervous shock intro

Answer 12

Shock of the nerves and brain structure of the body. Not only injury caused by direct physical contact but also those suffered by plaintiff due to what she heard or saw. Test - shock/illness direct consequence of wrongful act of defendant