NEGLIGENCE

Submitted By
IMRAN ALAM
BA,LLB.(Hons) 1ST SEMESTER
 Acknowledgement
Firstly, I would like to express my profound sense of gratitude towards
the almighty for providing me with the authentic circumstances which were
mandatory for the completion of my project.

Secondly, I am highly indebted Mrs. Manjula Batra at Faculty of Law,

Jamia Millia Islamia University, New Delhi for providing me with constant
encouragement and guidance throughout the preparation of this project.

My cardinal thanks are also for my parents, friends and all teachers of law
department in our college who have always been the source of my inspiration
and motivation without which I would have never been able to unabridged my
project.

Contents
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  List of negligence cases
 Introduction
 What is negligence ?
 Development of the tort of negligence
 How does negligence differ from trespass?
 The evolution of the concept of duty of care
 Failure to comply with duty of care
 The central legal issues of negligence today
 Issues of facts
 Conclusion

TABLE OF CASES
Blyth v Birmingham Waterworks (1856)
Bolam v Friern Barnet Hospital Management Committee (1957) QBD
Bolitho v City & Hackney Health Authority [1997] HL
Bolton v Stone [1951] HL
Carroll v Fearon (1999) CA
Djemal v Bexley Health Authority 1995 QBD
Gates v McKenna (1998) QBD
Hall v Simons (2000) HL
Home Office v Dorset Yacht [1970] HL
Jolley v Sutton LBC (1998) HL

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Latimer v AEC Ltd [1953] HL
Mahon v Osborne [1939] CA
Mansfield v Weetabix (1997) CA
Marshall v Osmond [1983] CA
Mullin v Richards (1998) CA
Nettleship v Weston [1971] CA
Newman & others v United Kingdom Medical Research Council (1996) CA
Paris v Stepney BC [1951] HL
Phillips v William Whiteley Ltd [1938] KBD
Roberts v Ramsbottom [1980] QBD
Roe v Minister of Health [1954] CA
Simonds v Isle of Wight Council (2003) QBD
Thompson v Smith Shiprepairers (North Shields) (1984) QBD
Vaughan v Menlove (1837) Ct CP
Vowles v Evans and Welsh Rugby Union Ltd [2003] CA
Watt v Hertfordshire PP [1954] CA
Wells v Cooper [1958] CA
Wilson v Governors of Sacred Heart RC Primary School, Carlton (1997) CA
Wiszniewski v Central Manchester Health Authority (1998) CA

TABLE OF ABBREVIATIONS

 A.C. – Appeal Cases

 All E.R. – All England Reports
 A.I.R. – All India Report
 Del –Delhi High Court
 Ex. – Court of Exchequer Chamber
 K.B. – King’s Bench
 N.Z.L.R. – New Zealand Law Reports
 Q.B. – Queen’s Bench

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  S.C.C. – Supreme Court Cases
 W.L.R. – Weekly Law Report

INTRODUCTION OF TORTS

A tort is a civil wrong for which a remedy, usually compensation, is

available to the wronged person in the civil courts. In the Law of Torts, duties
are owed to persons in various circumstances, and liability for negligent or
wrongful action is imposed by law. For example, a duty of care to other road
users is imposed by law on all drivers. An occupier of property owes a duty of
care to all visitors on his premises. This is different from obligations in a
contract where the parties voluntarily agree to be bound. The occupier of
property and the driver of a vehicle cannot escape liability for breaching their

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duties, although they may be able to cover losses through insurance. Where
persons are insured, the insurance company usually ‘steps into the shoes’ of the
insured and, in the event of a legal action, it is the insurance company that
settles any claims. The primary function of the Law of Torts is to provide
remedies to claimants who have suffered harm, loss, or an infringement of
rights. The harm includes physical injury to persons or property, damage to
persons’ reputations or financial interests, and interference with persons’ use
and enjoyment of their land. However, just suffering such a loss does not
necessarily mean the law will provide a remedy; a claimant must show that the
person committing the tort owed them a duty of care and that the tort caused the
loss. The Law of Torts covers a range of different civil wrongs including
negligence, trespass, nuisance, and defamation. Each tort has its own rules
about liability but most torts require an element of culpability, which means that
liability is only imposed on a person who intentionally or negligently acts or
fails to act in a particular manner. However, there are some torts, called strict
liability torts, that impose liability on a person even though they have not been
at fault in any way. In some situations, a person can be held strictly liable for
torts committed by another person. This liability is called ‘vicarious liability’
and it is particularly important in the business environment as employers may
be vicariously liable for the torts of their employees.

The Tort of Negligence

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Usually, to succeed in a tortious claim, a claimant must prove that the
tortious act or omission caused some damage (although there are a few torts
such as trespass where the claimant does not have to prove he suffered actual
damage). There are various defences to an action in tort. Some are called
general defences because they apply throughout the Law of Torts, and other
defences are called specific defences because they only apply to a particular
tort.
The Law of Torts has largely been developed through case law from decision
of judges, although, in more recent times, new tortious duties have been created
by statute. The enactment of the Human Rights Act 1998, which brought the

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European Convention on Human Rights into UK law, means that judges must
now develop the common law and interpret torts to ensure compliance with the
Convention.

WHAT IS NEGLIGENCE ?
The word negligence came into the English language, through French, from
a Latin word negligentia which means oversight or carelessness. Today, when
people use "negligence" in ordinary English speech, they mean carelessness.

Legal definition of negligence

However, in a legal context the word negligence has a more narrow and
specific meaning. It means carelessness that is actionable as a civil wrong or
tort. There are some forms of carelessness that are not actionable, and do not
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give rise to liability in the courts. The term negligence describes only the kinds
of carelessness that give rise to liability.

Development of the tort of negligence

The tort of negligence developed relatively late in English legal history.
Before 1762, court pleadings and judgments often included the English adverb
"negligently" and the Latin adverbs negligenter ac improvise. However, in these
contexts, it seemed that often the users simply meant the terms to emphasise the
wrongness of a defendant’s conduct in relation to an established tort. Such
words were sometimes described as "a gloss" or "a pleader’s adverb", in
contrast to words which indicated a separate tort.

It was not until 1762, when Comyn’s Digest was published, that a
commentator referred to a form of action on the case called negligence. By the
19th century, the courts were recognising that negligence was a separate basis
of liability.

How does negligence differ from trespass?

Initial view: negligence involves consequential damage

At first, the courts were unsure of exactly how they should differentiate
negligence from trespass. Their initial view was that the two forms of action
differed on the ground that:

 negligence was the appropriate form of action in cases where

the damage suffered was a consequence of the defendant’s
action; but
 trespass involved an action which caused immediate damage
to another.

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 The following case shows how the courts made this initial distinction.

Ogle v Barnes1

As a result of careless navigation, one ship damaged another ship. The owner
of the damaged ship brought an action in the Court of King’s Bench. The Court
held that the owners of the other ship were liable because their careless
navigation had caused the damage, and the damage was consequential upon
their action, rather than an immediate result of their actions.

Lord Kenyon CJ explained this distinction:

It is not necessary to have recourse to the Year Books for cases or principles
on which to decide the case before us. All the authorities on this subject agree in
the principle which must govern the present case. It is clear that, the mind need
not concur in the act that occasions an injury to another: if the act occasion [i.e.
causes] an immediate injury to another, trespass is the proper remedy; but if the
injury be not immediate but only consequential upon the act done, there the
party injured must bring an action on the case.

This is clearly established in a variety of cases, and particularly in those cited

from 1 Strange, and 2 Bl. Rep. in the latter of which, though the Judges differed
as to the conclusion to be drawn from the facts of the case, they all agreed in the
principle. In Day v Edwards, and Sarignac v Roome, the defendants did an act
which was immediately injurious to the plaintiffs; in the one case it was alleged
that the defendant furiously, and in the other that he wilfully, drove his cart
against the plaintiff’s chaise [i.e. a kind of horse-drawn carriage].

But it cannot be said, that in this case the defendantsdid an injury to the
plaintiffs, when it appears that they did not do any act at all. The charge
imputed to these defendants is, that they so carelessly and negligently steered
their vessel, that by reason of such negligence, their vessel sailed against and
ran foul of the plaintiff’s; and for that negligence they are liable in an action
upon the case.

Later view: negligence involves an action that is not wilful

Later, the courts moved away from the idea that the tort of negligence
differed from trespass on the ground that an action in negligence caused damage
that was not immediate. Instead, they held that the distinguishing feature of

1
(1799) 101 ER 1338

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negligence was that the action of the defendant was careless rather than wilful.
The following case reflects this change of view.

Williams v Holland2

A man was carelessly driving a gig (i.e. a kind of horse cart) and struck
another cart, injuring its two passengers. The Court of Common Pleas granted
an award of damages to the father of these passengers on the ground that the
driver of the gig was negligent, although the damage was immediate, because
his action was careless, not wilful.

Tindal CJ outlined the events of the first trial:

This was an action on the case, in which the declaration states that the
Plaintiff was possessed of a cart, and horse drawing the same, in which cart
were the Plaintiff’s son and daughter, and that Defendant was possessed of a
gig, and horse drawing the same, "which gig and horse were then under the care
of Defendant, who was driving the same in and along the highway:"
nevertheless Defendant that through the carelessness of the Defendant the said
gig and horse of Defendant and struck with great violence upon and against the
horse and cart of Plaintiff, and hereby broke to pieces the same, and the son and
daughter of Plaintiff were greatly hurt, The Defendant pleaded the general issue;
and on the trial the question left to the jury was, whether the injury was
occasioned by the negligence and carelessness of the Defendant, which question
the jury found in the affirmative, and gave their verdict for the Plaintiff, with 12
Damages.

The Defendant then appealed on the ground that the Plaintiff should have
relied on trespass, not negligence:

After the trial, the present rule was obtained for setting aside the verdict and
entering a nonsuit, under by the immediate act of the Defendant himself, the
action ought to have been trespass, and that the case was not maintainable; and
amongst other cases cited by the Defendant’s counsel in support of this
objection, that of Leame v Bray3 was principally relied upon as an authority in
point.

However, Tindal CJ held that negligence was the appropriate form of action
in this case, and cited authority to support this view:

2
(1833) 131 ER 848.
3
3 East, 593

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 The declaration in this case states that the ground of action is an injury
caused by the carelessness and negligence of the defendant in driving his own
gig; and that each carelessness and negligence is, strictly and properly in itself,
the subject of an action on the case would appear, if any authority were wanting,
from Com. Dig. tit. Action upon the Case for Negligence; and the jury have
found in the very terms of the declaration, that the jury was so occasioned.
Under such a form of action, therefore, and with such a finding by the jury, the
present objection ought not to prevail, unless some positive and inflexible rule
of law, or some authority too strong to be overcome, is brought forward in its
support. If such are to be found, they must, undoubtedly, be adhered to; for
settled forms of action, adapted to different grievances, contribute much to the
certain administration of justice.

But upon examining the cases cited in argument, both in support of, and in
answer of the objection, we cannot find one in which it is distinctly held, that
the present form of action is not maintainable under the circumstances of this
case.

Finally, he supported the rule that negligence involves action that is careless
rather than wilful:

We think the case last above referred to has laid down a plain and intelligent
rule, that where the injury is occasioned by the carelessness and negligence of
the Defendant, the Plaintiff is at liberty to bring an action on the case,
notwithstanding the act is immediate, so long as it is not a wilful act; and, upon
the authority of that case, we think the present form of action [is] maintainable
to recover damages for the injury.

Rule discharged.

This case shows that by the 19th century the courts had established the
essential element or basis for liability in negligence—that element was
carelessness, not wilful intent.

The evolution of the concept of duty of care

However, the courts also recognised that some kinds of carelessness did not
give rise to civil liability. Thus they evolved the concept of duty to take care as

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the basis for determining the kinds of carelessness that give rise to liability and
the kinds that do not. This concept is unique to the common law system, and
does not have an exact parallel in the legal systems of Europe based on the
Roman law.

In Le Lievre v Gould4,

The question of liability for negligence cannot arise at all until it is

established that the man who has been negligent owed some duty to the person
who seeks to make him liable for his negligence. What duty is there when there
is no relation between the parties by contract? A man is entitled to be as
negligent as he pleases towards the whole world if he owes no duty to them.

The case of Heaven v Pender has no bearing upon the present question. That
case established that, under certain circumstances, one man may owe a duty to
another, even though there is no contract between them. If one man is near to
another, or is near to the property of another, a duty lies upon him not to do that
which may cause a personal injury to that other, or may injure his property. For
instance, if a man is driving along a road, it is his duty not to do that which may
injure another person whom he meets on the road, or to his horse or his carriage.
In the same way it is the duty of a man not to do that which will injure the house
of another to which he is near. If a man is driving on Salisbury Plain, and no
other person is near him, he is at liberty to drive as fast and as recklessly as he
pleases. But if he sees another carriage coming near to him, immediately a duty
arises not to drive in such a way as is likely cause an injury to that other
carriage. So, too, if a man is driving along a street in a town, a similar duty not
to drive carelessly arises out of contiguity or neighbourhood. That is the effect
of the decision in Heaven v Pender.

In the years after Lord Esher’s statement, judges in the highest court of
England—the House of Lords—echoed his words many times. Thus in
Donoghue v Stevenson5, Lord Thankerton said,

There can be no doubt, in my opinion, that equally in the law of Scotland

and of England it lies upon the party claiming redress in such a case to show
that there was some relation of duty between her and the defender which
required the defender to exercise due and reasonable care for her safety.

4
[1893] 1 QB 491
5
[1932] AC 562

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 In the same case Lord Macmillan said,

Negligence apart from contract gives a right of action to the party injured by
that negligence, and here I use the term negligence of course in its technical
legal sense, implying a duty owed and neglected.

In Bourhill v Young6, judges in the House of Lords made similar statements.

One was Lord Thankerton again, who said, 98:

It is clear that, in the law of Scotland, the present action can only be based on
negligence and it is necessary for the pursuer in such an action to show there
was a duty owed to him by the defenders, because a man cannot be charged
with negligence if he has no obligation to observe diligence: per Lord Kinnear
in Kemp &Dougall v Dongavil Coal Co Ltd7.

Lord Russell of Killowan also said,

My Lords, the foundation of the appellants’ claim is fault or negligence

alleged against John Young, an allegation which postulates a breach by him of
some duty owed by him to her. Therefore, the first essential for the appellant to
establish is the existence of a duty owed to her by John Young of which he
committed a breach.

Finally, Lord Macmillan said,

She [i.e. the plaintiff] can recover damages only if she can show that in
relation to her the late John Young acted negligently. To establish this she must
show that he owed her a duty of care which he failed to observe, and that, as a
result of this failure in duty on his part, she suffered as she did.

Failure to comply with duty of care

If it was established that there was a duty to exercise care in a given case, it
was essential to then show that the defendant had failed to comply with that
duty of care, in order to establish negligence. There could be no liability in
negligence if the defendant had exercised proper care.

Alderson B stressed this point in his judgment in Blyth v Birmingham

Waterworks Co. 8 , in which he held that a water company was not liable in
6
[1943] AC 92
7
1909 SC 1314
8
(1856) 156 ER 1047

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negligence when water escaped from its pipe after an exceptionally heavy frost
in 1855. He defined negligence in the following way

The case turns upon the question whether the facts proved show that the
defendants were guilty of negligence. Negligence is the omission to do
something which a reasonable man, guided upon those considerations which
ordinarily regulate the conduct of human affairs, would do, or doing something
which a prudent and reasonable man would not do. The defendants might have
been liable for negligence, if, unintentionally, they omitted to do that [action]
which a reasonable person would have done, or did that [action] which a person
taking reasonable precautions would not have done …

In this case, Alderson B held that the defendants had done all that they
reasonably could to fulfil their duty of care, and that the frost was an
exceptional event that it was not reasonable to expect them to provide against:

The defendants had provided against such frosts as experience would have
led men, acting prudently, to provide against; and they are not guilty of
negligence because their precautions proved insufficient against the effects of
the extreme severity of the frost of 1855, which penetrated to a greater depth
than any which ordinarily occurs south of the polar regions. Such a state of
circumstances constitutes a contingency against which no reasonable man can
provide. The result was an accident, for which the defendants cannot be held
liable.

THE CENTRAL LEGAL ISSUE IN NEGLIGENCE

TODAY
You have seen that, as the tort of negligence emerged, the courts considered
that it was a form of action in the case which was distinct from trespass. So the
courts held that there should be no liability in negligence unless damage was
caused, just as they held for all forms of action which were not trespass.

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 Three essential elements for liability in negligence
The result is that today it is necessary to establish three elements in order to
establish liability in negligence. These essential elements are:

1. a duty to take care;

2. a failure to take care; and
3. harm resulting from that failure to take care.

In Donoghue v Stevenson 9 , Lord Macmillan summarised these three

elements, and later Lord Porter repeated his words in Bourhill v Young10:

The law takes no cognizance of carelessness in the abstract. It concerns itself

with carelessness only where there is a duty to take care and where failure in
that duty has caused damage. In such circumstances carelessness assumes the
legal quality of negligence and entails the consequences in law of negligence …
The cardinal principle of liability is that the party complained of should owe to
the party complaining a duty to take care, and that the party complaining should
be able to prove that he has suffered damage in consequence of a breach of that
duty.

In this part of the course, we will look in more detail at each of the three
essential elements to liability in negligence.

Required standard of care

Let us assume that we are dealing with a situation where the courts should
impose a duty to take care. In this case, what degree or standard of care should
the courts insist that the defendant must observe? Should the courts require the
defendant to observe all possible care, or only a moderate amount, or a bare
minimum of care? Obviously it is important for the courts to determine this
issue.

Liable for what harm?

Finally, let us assume that we are dealing with a situation where there is a
duty to take care, and that the defendant has failed to observe the necessary
standard of care. In that case, we must consider the kind of harm that results

9
[1932] AC 562, 618–619
10
[1943] AC 92, 113

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from such failure. For what kind of harm should a person be liable in
negligence? Should a careless person be liable for all harm that is caused by his
or her failure to exercise appropriate care, regardless of whether that failure is a
direct or indirect cause? Or should such a person be liable only for the harm that
is directly caused by the failure, or only the harm that is a foreseeable result of
the failure to comply with the duty to take care?

ISSUES OF FACTS
So the considerations above are the main legal issues in relation to liability
in negligence. In addition, when a court is trying to decide if a person is liable
for negligence, it must consider some issues of fact which relate to these legal
issues. The questions of fact that a court must answer include the following.

 Was the person in fact in a situation where he or she was

under a duty to take care?

 Did the actions of that person in fact reach the standard of

care required, or was he or she in breach of that standard?

 What harm was in fact caused which is within the category

of harm for which a person is liable negligence?

CONCLUSION

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A tort is a civil wrong and is primarily about providing a remedy for people for
harm that they have
suffered. The Law of Torts concerns involuntary obligations that are imposed
upon persons by the law.
• Criminal Law is primarily about punishing the people who have committed
wrongs in the eyes of
the state.
• In the Law of Contract, the obligations imposed in the contract have been
voluntarily agreed to by
the parties when they entered into the contract.

The necessary ingredients of negligence

• The three necessary ingredients to establish a duty of care are:
– The defendant owed the claimant a duty of care;
– The defendant breached that duty of care;
– Reasonably foreseeable damage was caused by the breach of duty.
• The three elements sometimes overlap, and in a court case the issues are often
looked at together
rather than separately.

How a duty of care may be established

•For a duty of care to exist, the claimant must establish that there is earlier legal
authority for a duty
existing in the same circumstances, or prove the three-stage test:
– The harm or loss caused was reasonably foreseeable, and
– There was proximity between the claimant and the defendant, and
– It is fair, just, and reasonable in all the circumstances for the law to impose a
duty on the defendant.

The principle of breach of a duty of care

• The claimant must establish that the defendant broke his duty of care by doing
something that a
reasonable man in the circumstances would not have done, or failing to do
something that a
reasonable man in the circumstances would have done.

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• The standard of care is an objective test.
• In deciding a duty has been breached, the court will take into account the
probability and potential
seriousness of harm being caused to the claimant, the
reasonableness/practicalities of taking
precautions, and the usefulness to society of what the defendant was attempting
to achieve.

The extent of damages resulting from breach of a duty

of care
• The claimant must prove, on the balance of probabilities, that the defendant’s
negligence caused or
materially contributed to the injury or loss sustained.
• The loss or damage suffered by the claimant must be reasonably foreseeable.
• If a claimant has a particular weakness and, therefore, suffers a greater injury
than a normal person,
the defendant will be liable to the full extent of the claimant’s injuries.
• The chain of events may be broken by an intervening event or act.
• The defendant is only liable for injury up until the intervening event.
• A defendant who injures a claimant who has already been injured will be
liable only in so far as his act increases or exacerbates the pre-existing injury.

BIBLIOGRAPHY

Law of Torts, Dr. R.K. Bangia

Law of Tort, P.S. Atchuten Pillai

The Law of Torts, Ratanlal and Dheerajlal

Law of Torts, Dr. B.M. Gandhi

Www.paclii.org
Indiankanoon.org

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