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Nature of Tort
NEGLIGENCE
Negligence is a failure to exercise the care that a reasonably
prudent person would exercise
in like circumstances. The area of tort law known as negligence
involves harm caused by carelessness, not intentional harm.
According to Jay M. Feinman of the Rutgers University School of
Law;
"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 foreseeably cause harm to other people."
"those who go personally or bring property where they know that
they or it may come into collision with
the persons or property of others have by law a duty cast upon
them to use reasonable care and skill to
avoid such a collision." Fletcher v Rylands ([1866] LR 1 Ex 265)
Through civil litigation, if an injured person proves that another
person acted negligently to cause their injury, they can
recover damages to compensate for their harm. Proving a case for
negligence can potentially entitle the injured plaintif
to compensation for harm to their body, property, mental wellbeing, financial status, or intimate relationships. However,
because negligence cases are very fact-specific, this general
definition does not fully explain the concept of when the
law will require one person to compensate another for losses
caused by accidental injury. Further, the law of negligence
at common law is only one aspect of the law of liability. Although
resulting damages must be proven in order to recover
compensation in a negligence action, the nature and extent of
those damages are not the primary focus of negligence cases.
Theories of Negligence
There are two rival theories of the meaning of the term
negligence. According to the one, negligence is a state of mind
(Subjective theory); according to the other, it is merely a type of
conduct (Objective theory).
(1)
Subjective theory- It is given by Salmond. His views
is that negligence is culpable carelessness. Although
negligence is not the same as thoughtlessness or
inadvertence, it is nevertheless essentially an attitude of
indiference with respect to ones conduct and its
consequences. A person is made liable on the ground of
negligence because he does not sufficiently desire to avoid a
particular consequence- a harm. He is careless about the
consequence and does the act not withstanding the risk that
may ensue. Winfield, an advocate of this theory, says that
as a mental element in tortuous liability, negligence usually
signifies tota or partial inadvertence of the defendant to this
conduct and for its consequences.
(2)
Objective theory- It is given by Pollock. His view is
that negligence is an objective fact. It is not a particular
state of mind or form of the mens rea at all, but a particular
kind of conduct. Negligence is a breach of duty to take
care, and to take precautions against the harmful results of
ones actions and to refrain from unreasonably dangerous
kinds of conduct. To drive at night without lights is
Essentials of Negligence
In an action for negligence, the plaintif has to prove
following essentials:
(1)
That the defendant owed duty of care to the plaintif.
(2)
The defendant made a breach of the duty i.e. he failed
to exercise due care and skill.
(3)
Plaintif sufered damage as a consequences thereof.
(2)Breach of Duty
It means not taking care which is required in a particular case.
The law requires taking of two points into consideration to
determine the standard of care required.
(i)
The importance of the object to be attained : The law does
not require greatest possible care but the care required is
that of a reasonable man under certain circumstances.
The law permits taking chance of some measure of risk so
that in public interest various kinds of activities should go
on.
In Latimer v A.E.C. Ltd. (1953) A.C. 643, due to heavy rain a
factory was flooded with water, which which got mixed with some
oily substance. The floors in the factory became slippery. The
factory owners spread all the available sawdust but some oily
patches still remained there. The plaintif slipped and was injured.
He sued the defendants and contended that, as a matter of
precaution the factory should have been been closed down. Held,
that the risk created was not so great as to justify that precaution.
The defendants had acted reasonably and, therefore, they were
not liable.
(ii)
(3)Damages
`
It is also necessary that the defendants breach of duty must
cause damage to the plaintif. The plaintif has also to show that
the damage thus caused is not too remote a consequence of the
defendants negligence.
(4)
The principle of res ipsa loquitur has no application
where the circumstancesin which the accident has taken
placeindicate that there must have been negligence but do
not indicate as to who was negligent or when the accident is
capable of two explanations.
(5)
Res ipsa loquitur is a common sense approach, not
limited by technical rules, to the assessment of the efect of
evidence in certain circumstances . It means that a plaintif
prima facie establishes negligence where
(i)
(ii)
Defences to Negligence
(a)
Vis Major
Inevitable accident