Date: 26 October, 2020
by Divya Menon, UILS, Panjab University
Even though the jurisprudential concept denies giving a precise definition to Negligence, various jurists and leading judgments have led to certain conclusions.
ESSENTIAL ELEMENTS OF NEGLIGENCE:
In an action for negligence, the plaintiff has to prove the following:
1. That the defendant owed duty of care to the plaintiff: this refers to a legal duty rather than a mere moral, religious or social duty. There is no general rule of law that defines this duty, it depends in each case.
2. That the defendant made a breach of that duty: non-observance of due care leads to breach of duty. The standard of care is that of an ordinary prudent man. The standard of care depends on 1. The importance of the object. 2. The magnitude of the risk, and 3. The amount of consideration being offered for the services, etc.
If the defendant has acted like a reasonably prudent man, there is no breach of duty.
3. That plaintiff suffered damage as a consequence thereof: it is necessary that the defendant’s breach of duty caused damage to the plaintiff and the plaintiff has to prove that the damage caused is not too remote to be a consequence of the negligence.
The case of Donoghue v. Stevenson (1932) is a famous case of negligence. In this case Donoghue, the plaintiff, went to a café with a friend.
They ordered some refreshments along with a bottle of ginger beer. The ginger beer which was served was manufactured by the defendant, Stevenson himself. As the plaintiff’s friend started pouring the remaining beer in her glass, the remains of a decomposed snail floated out of the bottle. As a result of this nauseating site and consuming the impurities of the snail, the plaintiff suffered from shock and had Gastro-enteritis.
The court held the defendant liable by stating that he was under a legal duty to take reasonable care in delivering the articles free from any defect which could cause injury to the health of any person.
TYPES OF NEGLIGENCE:
Broadly, Negligence can be described as a Tort and as a Crime. It is the amount of damages incurred which determines the extent of liability in tort; but the amount of degree of negligence and the element of mens rea in criminal law.
Civil negligence is negligence where a person omits to take ordinary care which is also known as due diligence whereas, Criminal negligence is when a person does an act which is in regard to the obvious risk to the safety of human life.
It is important to note that criminal negligence involves two things-
It should be more than a mistake or excusable accident: for an act to be criminal negligence, it should not merely be a simple carelessness or inattention or a mistake in judgment.
Knowledge of danger must be known: the defendant must know that his act has or may cause danger to another person. And a reasonable person, if had been in the same situation, would have foreseen the risk.
Driving a car at top speed while using mobile phone is an example of criminal negligence.
Dr. R.K Bangia, Law of Torts, twenty-fourth edition