Negligence is a failure to care for someone like that a reasonably prudent person would exercise in similar circumstances. It is a non intentional tort and has four elements:-
- Duty of Care
- Breach of Duty
Duty of Care
It is the first element of negligence that the plaintiff must prove to establish negligence. Duty of care is nothing but the duty owed by the plaintiff towards the defendant.
Leading Case on ‘duty of care’ is Donoghue v. Stevenson ( AC 562). It defined duty of care as the duty to take reasonable care to avoid acts or omissions which one can reasonably foresee and would be likely to injure our neighbour. He defined neighbours as persons who are so closely and directly affected by plaintiff’s act that he/she ought reasonably to have them in contemplation as being so affected when he/she is directing his mind to the acts or omissions which are called in question.
Caparo Industries plc v Dickman ( UKHL 2) is another leading English tort law case on the test for a duty of care. It prescribes a “three-fold test” to check if duty of care to arise:
- Harm must be reasonably foreseeable
- The parties must be in a relationship of proximity
- It must be fair, just and reasonable to impose liability
Another case to illustrate the concept is Home Office v Dorset Yacht Co Ltd  AC 1004.
In this case the defendants were jail authority supervising offenders. The offenders were serving their time by doing some work. The offenders were left unattended by the prison authorities which lead to seven of them escape. These offenders then stole a boat which collided with a Yacht owned by the plaintiff. It was held that the Home Office owed a duty of care for their omission as they were in a position of control over the 3rd party who caused the damage and it was foreseeable that harm would result from their inaction.
- The landowner owes no ‘duty of care to a trespasser but from willful injury. They owe a reasonable ‘duty of care’ towards invitee and licensee.
Breach of Duty is the failure to maintain the required standard of care.
In order to determine whether there has been breach of duty one must check the following:
- the importance of the object to be attained
- the magnitude of the risk
- the amount of consideration for which services, etc. are offered
Ordinary Prudence Test – Plaintiff must prove that Defendant acted/omitted to do something, which a “reasonable person of ordinary prudence” would, or would not have done (Blyth v Birmingham Waterworks).
Klaus Mittelbachert v. East India Hotels Ltd. (1999 ACJ 287) – The question of liability of a five star hotel arose to a visitor, who got seriously injured when he took a dive in the swimming pool. It was observed that there is no difference between a five star hotel owner and insurer so far as the safety of the guests is concerned. It was also observed, a five star hotel charging high from its guests owes a high degree of care as regards quality and safety of its structure and services it offers and makes available.
Kerala State Electricity Board v. Suresh Kumar (AIR 1986 Ker 72) – A minor boy came in contact with overhead electric wire which had sagged to 3 feet above the ground, got electrocuted thereby and received burn injuries. The Electricity Board had a duty to keep the overhead wire 15 feet above the ground. The Board was held liable for the breach of its statutory duty.
Causation – It is the second element required to establish negligence. Causation is demonstration of the link between the plaintiff’s injury and defendant’s act which caused the injury. In order to establish negligence there must be proximity in time and space between the defendant’s act and injury. The injury must be foreseeable too. Causation actually has two components:
- Actual cause (also called “but for” cause)
- Proximate (also known as “legal” cause)
A famous English Case Law for ‘But for Cause’ is Robinson v Post Office [(1974) 1 WLR 1176]. In this case the plaintiff fell down staircase as they were slippery and was not cleaned. The plaintiff then visited a doctor who carelessly treated him leading to plaintiff fall sick. This lead to plaintiff suing the defendant arguing but for he had not fallen he wouldn’t have got this disease. The court accepted plaintiff’s reasoning and provided damages.
In Scott v. Shepherd [96 Eng. Rep. 525 (K.B. 1773)] plaintiff threw a lighted squib in a crowded marketplace. The squid was thrown around by until it hit defendant burning his eye. The Court held that the plaintiff when he threw the lighted squid had the knowledge that it is likely to do some mischief and therefore there was proximity between the plaintiff and the defendant. Defendant was accordingly held liable.
In strict liability cases there is no need to show causation.
Injury is the legal damage suffered by the plaintiff due to defendant’s act or omission. The plaintiff has also to show that the damage thus caused is not too remote a consequence of the defendant’s negligence.
Damnum sine injuria – Damage without wrongful act; damage or injury inflicted without any act of injustice; loss or harm for which there is no legal remedy. It is also termed damnum absque injuria
Gloucester Grammar School Case ((1411), Y. B. 11 Hen. 4, f. 47, pi. 19)- The defendant, a schoolmaster, set up a rival school to that of the plaintiffs. Because of the competition, the plaintiffs had to reduce their fees from 40 pence to 12 pence per scholar per quarter. It was held that the plaintiffs had no remedy for the loss thus suffered by them.
Injuria sine damno– This maxim means injury without damage. Wherever there is an invasion of a legal right, the person in whom the right is vested is entitled to bring an action and may be awarded damages although he has suffered no actual damage. Thus, the act of trespassing upon another’s land is actionable even though it has done the plaintiff not the slightest harm.
Ashby v. White [(1703) 92 ER 126 ] – In this case, the plaintiff was not allowed to cast his vote despite him being legally allowed to do so. After that, the candidate whom the plaintiff wanted to cast vote for also won but the plaintiff’s right to cast was violated and hence this was accepted as a lawful loss.