Negligence, theories of negligence, essentials, defence and medical negligence

Negligence, theories of negligence, essentials, defence and medical negligence

Introduction : Generally, speaking one is responsible for the direct consequences of his negligent acts where he is placed in such a position with regard to another that is obvious that if he does not use due care in his own conduct he will cause injury to another , Negligence causes risk , danger of harm .

Theories of negligence :

There are two rival theories of the meaning of the term negligence. According to the one , negligence is the state of mind (subjective theory)

As per to the other , it is merely a type of conduct (objective theory)

Subjective theory:

It is given by Salmond .His view is that negligence is culpable carelessness. Although negligence is not the same as thoughtless ness or inadvertentence , it is nevertheless essentially consists in the mental attitude of undue indifference with respect to one’s conduct and it’s consequence.

Winfield an advocate of this theory states “as a mental element in tortious liability, negligence usually signifies total or partial inadvertentence of the defendant to his conduct and for its consequences.

Objective theory :

It is given by pallock .his view is that negligence is an objective fact .It is not particular state of mind or form of the mensrea at all , but a particular kind of conduct . Negligence is a breach of duty to take care , and to care means to take precautions against the harmful results of one’s actions and to refrain from unreasonably dangerous kinds of conduct.

Meaning and definition of negligence :

As noted above , negligence has two meanings in law of torts :

• Negligence as state of mind : Negligence is a mode of committing certain torts Eg “negligently vor carelessly committing trespass , nuisance or defamation. This is subjective meaning of negligence advocates by the Austin , Salmond , and Winfield.
• Negligence as a type of conduct : Negligence means a conduct and not a state of mind – A conduct, which involves the risk of causing damage . This was the objective meaning of negligence which treats negligence as a separate or specific tort .

Essentials of negligence :

• Duty of care to the plaintiff :An action for negligence lies upon the idea of an obligation or duty on the part of the defendant to use care, a breach whereof results in the plaintiff’s injury.

• Legal duty : ‘Duty of care ‘means a legal duty rather than merely moral , religious or social duty’ . In absence of such legal duty , negligence in the popular sense has no legal consequences It is not sufficient bro show that the defendant was careless; the plaintiff has to establish that the defendant owed to the plaintiff a specific legal duty to take care . It rests on each case whether a duty exists.

Leading case : Donoghue vs Stevenson : In this case , the plaintiff (Donoghue) drank a bottle of ginger beer which was brought from a retailer by her friend.The bottle contained a decomposed snail which was found out by her and when she had already consumed a part of the contents of the bottle .The plaintiff brought an action against the manufacturer (Stevenson) to recover damages when she suffered serious effects on her health and severe gastro enteritis The court held that the manufacturer was responsible for his negligence towards the plaintiff. It was the duty of the manufacturer to use reasonable diligence to ensure that the bottle did not contain any noxious matter.

• Reasonable foreseeability of injury : whether the defendant owes a duty to the plaintiff or not depends on the reasonable foreseeability of the injury to the plaintiff.

In Heaven vs Pender , the court held that the duty arises only if a person is near to the person or property if another.

• When the defendant is not liable for negligence : In Fardon vs Harcourt, the defendant parked his car by the roadside and left a dog inside the car The dog jumped out and smashed the glass panel. A splinter from this glass injured the plaintiff while he was walking past the car. Held , that the accident being very unlikely, the defendant was not liable.

2) Breach of duty : It means not taking due care which is required in a particular case. The law requires braking of two points into consideration to determine the standard of care :

• The important object to be attained

• The magnitude of risk.

In Nitin Walia vs Union of india AIR 2001) A child visitor of Delhi zoo aged 3 yrs put his hand inside iron bars where the tigress was kept and his hand was crushed by the tigress. It was held that the zoo authorities should have put iron mesh on the rods and we’re liable in damages for the injury and the child was not guilty bod any contributory negligence.

3) Damages : It is also necessary that the defendant’s breach of duty cause damage to he plaintiff.The plaintiff has also to show that the damage thus caused is not too remote a consequence of the defendant’s negligence.

Defences of negligence :

Vis major : Vis major or act of God is such a direct , sudden and irresistible act of nature as could not by any amount of human care or skil have been resisted.

Inevitable accident : the second defence is an action for negligence is that of inevitable accident. Thus A is lying drunk on a roadway . B approaches in a motor – car round a bend in the road but just before he reaches the point at which , under ordinary circumstances, he would first see A , a sheet of newspaper is blown by the wind against his windscreen and materially obscures his view. He runs over A, and injures him. Here, A cannot succeed , it being a case a inevitable or misfortune.

Contributory negligence of the plaintiff :

The third defence to an action for negligence is that of the contributory negligence of the plaintiff himself. In certain circumstances a person who has suffered an injury will not be able to get damages from another for the reason that his own negligence has contributed to his injury ; every person is expected to take reasonable care of himself .Thus when the plaintiff by his own want of care contributes to the damage caused by the negligence or wrongful conduct of the defer, he is considered to be guilty of “contributory negligence”.

Medical negligence : A doctor when consulted by a patient owes him certain duties viz a duty of care in deciding whether to undertake the case, A duty of care in deciding what treatment to give and a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to patient ( Phillips India vs kunju Punnu AIR 1975)

Author: Harshita Swami,
Guwahati University BALLB9th sem