Negligence Flashcards
Definitions of negligence
- Heaven v pruder 1883
Negligence is a tort means an actionable wrong which consists on the neglect of the use of ordinary care and skill toward a person to whom the defendant ows the duty of observing ordinary care and caution, by which neglect the plaintiff has to suffer injury to his person or property. - By justin alderson b in blyth v bermingham waterworks 1856 Negligence as a tort is am omission to do something, which reasonable man under those circumstances would do, or not doing that Prudent and reasonable man would not do
Essentials of tort of negligence
INGREDIENTS
- Duty of care owed by the defendant to the plaintiff
- Breach of duty of care
- Damage results to the plaintiff
Until 1932, common law did not recognise a cause of action in negligence as it exists today. All there was an action on the case, which had developed to tame the harshness of the law of trespass. A plaintiff could only have an action in negligence where there was a contractual relationship between the plaintiff and the defendant
In the case of Donogue v Stevenson, the cause of action of negligence was propounded by Lord Atkin
After reviewing the authorities on the question, he laid down the rule that “A manufacturer of products which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumers’ life or property, owes a duty to the consumer to take reasonable care.”
It was also held that since action for tort is quite independent of any contract.The privacy of contract will not apply in an action for tort
Rural Transport Services Vs Bezlum Bibi
Facts of the case
Taher Seikh, son of late Isu Seikh had boarded a bus on October 28, 1969, that was run by the appellant and the route of the bus was from Burdwan to Nasigram via Khetia and Bhatar. He boarded at Khetia and was continuing to Bhatar. Since the bus was filled with many passengers Taher Seikh alongside different travelers got on to the top of the bus as there was no seat left inside the bus. He got seated on the right side of the bus. Shockingly for him when the bus was approaching Bhatar it tilted towards the road’s right side while attempting to overtake a cart that was being driven in front of the bus. The expired Taher was struck by an overhanging part of a tree and he tumbled down on the ground supporting numerous wounds in his brow, chest and so forth He was taken out to B. S. Emergency clinic at Burdwan and there he passed on the day following because of the wounds endured.
Judgment of the case
The Calcutta High Court said that the first point that was raised by the appellant, that the Tribunal was wrong in determining that the appellant’s employees, i.e the driver and the conductor were negligent due to which the accident had taken place which had resulted in the death of Taher was wrong as they did not doubt conceding to the proof that had been submitted by P.Ws. 2 and 3 which was that at that particular time the bus was too much crowded and since there were no seats available inside the bus, the conductor had made the passengers sit on the roof of the bus. The court agreed with the tribunal’s findings that making passengers sit on the roof of the bus was a very rash and negligent act and also the driver had to be extra careful since passengers were traveling on the roof of the bus and so when he left the metallic track of the road by tilting his vehicle to the right side was a very negligent act.
The court also while considering the appeal looked upon a very important aspect that the Tribunal had failed to consider which was the concept of contributory negligence. The court found that Taher was not liable for contributory negligence as the Tribunal had failed to consider the fact that along with Taher many other passengers were also traveling on the roof of the bus. If the conductor allowed the passengers to travel on the roof of the bus then it would be implied that extra caution and care would be taken by the driver so that the passengers didn’t face any difficulty and they reached their destination safely. Now if the passengers were made to travel on the roof of the bus, then the defense of contributory negligence could not be taken as the passengers and Taher could assume that due duty and diligence would be taken on the part of the driver to make their journey safe.
When defendant is not liable for negligence
- When injury to plantiff is not forseable
Bourhill v Young [1943] AC 92
Facts
Mr Young had been negligently riding his motorcycle and was responsible for a collision with car in which he himself suffered fatal injuries. At the time of the crash, Mrs Bourhill (C) was in the process of leaving a tram about 50 feet away. C heard the crash and, after Mr Young’s body had been removed from the scene, she approached and witnessed the immediate aftermath. C was 8 months pregnant at the time of the incident and later gave birth to a stillborn child. C subsequently brought an action against Mr Young’s estate, claiming she had suffered nervous shock, stress and sustained loss due to the negligence of D.
Decision/Outcome
D was not liable for any psychiatric harm that C might have suffered as a result of the accident. It was not foreseeable that C would suffer psychiatric harm as a result of D negligently causing a loud traffic accident, nor was C sufficiently proximate to the scene of the crash itself. D, therefore, could owe no duty of care to C - To establish negligence it is not enough to prove that the injury was foreseeable But it is neighbor likelihood of injury has also to be shown
Bolton v Stone [1951] AC 850
TORT OF NEGLIGENCE – FACTORS RELEVANT TO BREACH OF DUTY
Facts
The claimant was injured after a ball from a neighbouring cricket pitch flew into her outside her home. The cricket field was arranged such that it was protected by a 17-foot gap between the ground and the top of the surrounding fence. Balls had been known to get over the fence and land in people’s yards, but this was rare, making the strike which hit the claimant exceptional. The claimant sued the cricket club in the tort of negligence for her injuries.
Issue
Establishing the tort of negligence involves establishing that the defendant owed the claimant a duty of care, which they breached in a manner which caused the claimant recoverable harm. To establish a breach of any duty owed, the claimant must establish that the defendant failed to act as a reasonable person would in their position.
The issue in this case was what factors were relevant to determining how the reasonable person would behave, and therefore when the defendant would be in breach of their duty of care.
Decision / Outcome
The House of Lords held that the cricket club was not in breach of their duty.The following factors were held to be relevant to whether a defendant is in breach of their duty of care:
• The likelihood of harm;
• What precautions were practical for a defendant to take in terms of cost and effort;
• Whether the defendant provides a socially-useful service.
In this case, the likelihood of the harm was very low, and erecting a fence any higher than the defendant had already done would be impractical. The cricket club was also providing a social useful service to the community. A reasonable cricket club would have, therefore, not behaved any differently.
Theories of negligence
Two theories of negligence.
- Subjective theory– according to Austin negligence is a faulty mental condition that is penalized by the award of damages. Although negligence is not synonymous with thoughtlessness or inadvertence, it is, nevertheless, in his view essentially an attitude of indifference.
Negligence, according to Salmond, essentially consists of the attitude of undue indifference concerning one’s conduct and its consequences.
Winfield also supports this theory and says that as a mental element in tortious liability negligence usually signifies a total or partial inadvertence of the defendant to his conduct and for its consequences. In exceptional cases, there may be full advertence to both the conduct and consequences but in any event, there is no desire for the consequences and this is the touchstone for distinguishing it from intention. - Objective theory- According to pollock according to this theory negligence is not a particular state of mind or form of mens Rea at all, but a particular kind of conduct all ok is a supporter of this theory and writes that negligence is the contrary of diligence and no one describes the legends as a state of mind divisions today means activity which is not a state of mind negligence is the branch of duty to take care and take care needs to take precautions against the harmful result of one’s actions and to refrain from unreasonable conducts to drive at night without light is negligence because to carry lights is a precaution taken by reasonable and prudent man for the avoidance of accidents and amount of care which is reasonable in the circumstances of the particular case this obligation to use reasonable care is commonly expressed by reference to the conduct of a reasonable man or an of an ordinarily prudent man meaning thereby reasonably prudent
Breach of duty of care
Yet to be studied
Res ipsa loquitor
The doctrine of res ipsa loquitur, Latin for “the thing speaks for itself,” states that some accidents, by their very nature, imply negligent behavior. Even with no evidence of defendant’s specific action or lack of action, the facts indicate that negligence was the cause of claimant ’s harm.
The elements necessary to establish res ipsa loquitur are: 1. The defendant had full control of the instrumentality that caused the injury
2. The accident could not have happened if those having control had not been negligent; and
3. The claimant ’s injury resulted from the accident.
The classic English case of Byrne v. Boadle illustrates the principle.[19] The claimant washit by a falling flour barrel from a window in a room in which the defendant’s workers stored and managed flour barrels. Though no specific negligent acts could be proven, the defendant was found liable because negligence in handling a flour barrel is the only reasonable explanation for a flour barrel falling out of the window.
Contributory negligence composite negligence
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