SUBJECT – LAW OF TORT
TOPIC - NEGLIGENCE
Introduction
Negligence – A duty is imposed on a person by law to act with care towards others, if this duty
exists and there is a failure to act carefully and another suffers loss, then the tort of negligence
is committed.
It is already knowing that the India law of torts is based on the English Common Law. Thus,
the law relating to negligence is adopted and modified by the courts of India on the principles
of justice, equity and good conscience. The term Negligence is derived from the Latin word
negligentia, which means ‘failing to pick up’. In the general sense, the tem negligence means
the act of being careless and in the legal sense, it signifies the failure to exercise a standard of
care which the doer as a reasonable man should have exercised in a particular situation.
Negligence in English law emerged as an independent cause of action only in the 18tj century.
Similarly, in Indian law, the IPC, 1860 contained no provision for causing the death of a person
by Negligence which was subsequently amended in the year 1870 by inserting section 304A.
Definition of Negligence
In Law of Torts Negligence may be defined as breach of duty caused by the omission
to do something which a reasonable man, guided by those considerations which
ordinarily regulate the conduct of human affairs would, do or doing something which
a Prudent reasonable man would not do, actionable negligence consists in the neglect
of the use of ordinary care or observing ordinary care and skill toward a person to whom
the defendant owes a duty of observing ordinary care and skill.
Negligence has been viewed in three ways firstly involving a careless state of mind,
secondly, a careless conduct, and thirdly done due to negligence injury and damage
may be found due to breach of conduct or tort.
According the Winfield and Jolowicz, Negligence is the beach of a legal duty of care by the
plaintiff which results in undesired damage to the plaintiff.
In Blyth v. Birmingham Water Works 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.
According to Jay M. Feinman, the core idea of negligence is that people should exercise
reasonable care when they act by taking account of the potential harm that they might
foreseeable cause harm to other people.
, How is Criminal Negligence Different from Civil Negligence?
Criminal Negligence is said to take place when a person acts in a particular way which
is an extreme departure from which a reasonable person would act in a similar or same
circumstance. The difference in civil negligence is that the conduct may not be seen as
a radical departure from the way a reasonable person would have responded.
Civil negligence occurs when a person fails to exercise ordinary care or due diligence
but criminal negligence relates to a conduct that is considered so extreme and rash that
it is a clear divergence from the way an ordinarily prudent person would act and is
considered to be more than just a mistake in judgment or distraction.
The punishment for a person who was liable in a civil negligence case only extends to
the extent of damage caused to the plaintiff i.e. compensation for the damages. In
criminal negligence cases, the punishment is much more serious and can be convicted
for a prison term, fine and probation supervision. Example the punishment for criminal
negligence amounting to death under section 304A of IPC can extend to 2 years of jail
and fine or both.
For example, if someone driving a vehicle under the influence of drugs and alcohol and
caused the death of an individual, it would amount to criminal negligence since this is
considered extreme carelessness on their part.
Essentials of negligence
Three basic constituents must be proved for the plaintiff to be successful in negligence –
(a) Duty of Care
(b) Breach of the same duty
(c) Consequential damage
Duty of Care
Duty of care is a specific Legal obligation to not harm others or their property. It means a legal
duty rather than a mere moral, religious or social duty. The Plaintiff has to established that the
defender owed to him a specific legal duty to take care of which he has made a breach. It
depends in each case whether a duty existed between defendant and claimant.
It is one of the essential conditions of negligence in order to make the person liable. It means
that every person owes a duty of care, to another person while performing an act. Although this
duty exists in all act, but in negligence, the duty is legal in nature and cannot be illegal or
unlawful and also cannot be of moral, ethical or religious nature.
The case of Donoghue v. Stevenson (1932) has evolved the principle that we each have a duty
of care to our neighbor or someone we could reasonably expect to be affected by our acts or
omissions. It was held that, despite no contract existed between the manufacturer and the
person suffering the damage an action for negligence could succeed since the plaintiffwas
successful in her claim that hat she was entitled to a duty of care even though the
TOPIC - NEGLIGENCE
Introduction
Negligence – A duty is imposed on a person by law to act with care towards others, if this duty
exists and there is a failure to act carefully and another suffers loss, then the tort of negligence
is committed.
It is already knowing that the India law of torts is based on the English Common Law. Thus,
the law relating to negligence is adopted and modified by the courts of India on the principles
of justice, equity and good conscience. The term Negligence is derived from the Latin word
negligentia, which means ‘failing to pick up’. In the general sense, the tem negligence means
the act of being careless and in the legal sense, it signifies the failure to exercise a standard of
care which the doer as a reasonable man should have exercised in a particular situation.
Negligence in English law emerged as an independent cause of action only in the 18tj century.
Similarly, in Indian law, the IPC, 1860 contained no provision for causing the death of a person
by Negligence which was subsequently amended in the year 1870 by inserting section 304A.
Definition of Negligence
In Law of Torts Negligence may be defined as breach of duty caused by the omission
to do something which a reasonable man, guided by those considerations which
ordinarily regulate the conduct of human affairs would, do or doing something which
a Prudent reasonable man would not do, actionable negligence consists in the neglect
of the use of ordinary care or observing ordinary care and skill toward a person to whom
the defendant owes a duty of observing ordinary care and skill.
Negligence has been viewed in three ways firstly involving a careless state of mind,
secondly, a careless conduct, and thirdly done due to negligence injury and damage
may be found due to breach of conduct or tort.
According the Winfield and Jolowicz, Negligence is the beach of a legal duty of care by the
plaintiff which results in undesired damage to the plaintiff.
In Blyth v. Birmingham Water Works 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.
According to Jay M. Feinman, the core idea of negligence is that people should exercise
reasonable care when they act by taking account of the potential harm that they might
foreseeable cause harm to other people.
, How is Criminal Negligence Different from Civil Negligence?
Criminal Negligence is said to take place when a person acts in a particular way which
is an extreme departure from which a reasonable person would act in a similar or same
circumstance. The difference in civil negligence is that the conduct may not be seen as
a radical departure from the way a reasonable person would have responded.
Civil negligence occurs when a person fails to exercise ordinary care or due diligence
but criminal negligence relates to a conduct that is considered so extreme and rash that
it is a clear divergence from the way an ordinarily prudent person would act and is
considered to be more than just a mistake in judgment or distraction.
The punishment for a person who was liable in a civil negligence case only extends to
the extent of damage caused to the plaintiff i.e. compensation for the damages. In
criminal negligence cases, the punishment is much more serious and can be convicted
for a prison term, fine and probation supervision. Example the punishment for criminal
negligence amounting to death under section 304A of IPC can extend to 2 years of jail
and fine or both.
For example, if someone driving a vehicle under the influence of drugs and alcohol and
caused the death of an individual, it would amount to criminal negligence since this is
considered extreme carelessness on their part.
Essentials of negligence
Three basic constituents must be proved for the plaintiff to be successful in negligence –
(a) Duty of Care
(b) Breach of the same duty
(c) Consequential damage
Duty of Care
Duty of care is a specific Legal obligation to not harm others or their property. It means a legal
duty rather than a mere moral, religious or social duty. The Plaintiff has to established that the
defender owed to him a specific legal duty to take care of which he has made a breach. It
depends in each case whether a duty existed between defendant and claimant.
It is one of the essential conditions of negligence in order to make the person liable. It means
that every person owes a duty of care, to another person while performing an act. Although this
duty exists in all act, but in negligence, the duty is legal in nature and cannot be illegal or
unlawful and also cannot be of moral, ethical or religious nature.
The case of Donoghue v. Stevenson (1932) has evolved the principle that we each have a duty
of care to our neighbor or someone we could reasonably expect to be affected by our acts or
omissions. It was held that, despite no contract existed between the manufacturer and the
person suffering the damage an action for negligence could succeed since the plaintiffwas
successful in her claim that hat she was entitled to a duty of care even though the
