Negligence in law refers to carelessness that breaches a legal duty to avoid causing harm to others, resulting in damage to the plaintiff. The essentials of negligence include a duty of care owed to the plaintiff, a breach of that duty, and resulting damage. Various defenses exist against negligence claims, such as lack of duty, absence of damage, and contributory negligence, where both parties share fault.

1. NEGLIGENCE

2. MEANING AND DEFINITION
• In every day usage it denotes carelessness
• But in its legal interpretation the word carries two senses in the
law of torts:
1. Negligence as a mode of committing certain torts –
trespass, nuisance or defamation. It denotes mental element.

3. 2. An independent tort which consists of breach of legal duty to
take care which results in damage undesired by the defendant. It
means conduct rather than a state of mind.
Civil and Criminal Negligence
If mens rea is present – criminal negligence
In civil negligence – conduct of the party is important

4. DEFINITION
Negligence is the 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 and reasonable man
would do. Actionable negligence consists in the neglect of the use of ordinary care or
skill towards a person to whom the defendant owes the duty of observing ordinary care
and skill, which neglect the plaintiff has suffered injury to his person or property.

5. Winfield – Negligence as a tort is the breach of a legal duty to take care
which results in damage, undesired by the defendant to the plaintiff.
Austin – Negligence is a faulty mental condition which is penalized by
the award of damage
Clark and Lindsell – Negligence is the omission to take such care as
under the circumstance it is the legal duty of a person to take.

6. ESSENTIALS OF NEGLIGENCE
1. Duty of care to the plaintiff
2. There had been a breach of that duty
3. The plaintiff suffered damage as a consequence thereof

7. DUTY OF CARE
• A man may be as negligent as he pleases towards the whole
world, if he owes no duty to them. But when a man does any act
and he know its consequence, that it is likely to cause any harm
to another; then he is having a duty of care towards another
persons.

8. • If a person driving a car or bike, he must be careful and has duty of
care towards pedestrian. If a person carrying a knife in crowded
place, he has duty of care not to cause injury to people. A doctor
must take care of a patient while operating. A shopkeeper must
take care of consumer. There are many more categories.

9. • The duty of care must be that is recognised by law.
• Negligence is not one of the ground of liability, till the person whose
conduct is impeached is under duty of taking care.
• According to brown L.J. ‘ the idea of negligence and duty are correlative
as there is no such thing as negligence in abstract; negligence is simply
neglect of some care which we are bound to exercise towards somebody.

10. DONOGHUE VS. STEVENSON
• In this case, a man brought from a retailer a bottle of ginger beer manufactured by the
defendant. The man gave the bottle to his lady friend who became ill from drinking
the contents. The bottle contained the decomposed remains of a snail. The bottle was
opaque so that the noxious substance could not have seen and was not discovered
until the lady was refilling her glass. The consumer sued the manufacturer under
negligence. It was held by House of Lords, that manufacturer was liable to the
consumer.

11. • It was also held that, the consumer had no cause of action in contract
against either retailer or manufacturer because it was she and not he friend
who bought the bottle. Her claim arose in tort e.g. Negligence and the
breach of duty of care owed to herself as a consumer.
• Out of it has come the following board definition of the duty of care.
• You must take care reasonable care to avoid acts or omissions which you
can reasonably foresee would be likely to injure your neighbour.

12. The rule enunciated has been applied to a manufacturer of food stuffs, clothing, hair care,
and many similar stuffs
The recognised duties in law are....
1. Highway
2. Employer’s Liability
3. Professionals like doctors, surgeons, solicitors, engineers etc.
4. Bailees of goods
5. Carriers

13. DEGREE OF CARE
• Duty to take care arises as soon as there is a reasonable probability of
danger from the conduct of the defendant.
• There is no proper definition of carelessness or negligence because it has
different definitions in different situations; it can be evaluated in the light
of some norm or standard which the person has in mind while evaluating.

14. • The required standard of care is not the highest possible standard
but the standard of the ordinary average reasonable man if he were
placed in the defendant’s circumstances.
• The degree of care which is required to be taken in a particular
situation varies with the obviousness of risk. If the possibility of
risk is high, then high care is required.

15. If the possibility of risk is low, then low care is required. The care that
will be required will be the care that an ordinary prudent man is bound
to exercise. The prudent man is the man who has acquired the skill to
do the act which he undertakes. A person who profess to have special
skill or who have voluntarily undertake a higher degree of duty are
bound to exercise more care than an ordinary prudent man.

16. BREACH OF DUTY OF CARE
• Breach of duty means non observance of due care which is required in particular
situation. What standard of care is required? It is that of a reasonable man or an
ordinary prudent man. For this following things are considered.
1. Importance of the object to be attained
2. The magnitude of the risk
3. The amount of consideration for which services etc. are offered

17. DAMAGES
• It is necessary that the defendant’s breach of duty must cause damage to the plaintiff
otherwise it wont constitute the negligence. The plaintiff has also to show that the
damage thus caused is not too remote a consequence of the defendant’s negligence.
• In suits in which damages are claimed, the onus, it is held, is on the plaintiff to prove
all items of the damages. In such a case, any fact which enables the court to determine
the amount of damages, which ought to be awarded, is held to be relevant.

18. • There are some defences available for the defendant which he can use against the plaintiff that are: -
1. When there was no duty of defendant towards the plaintiff.
2. When there is no damage caused to the plaintiff.
3. When there was consent of plaintiff.
4. When damage was caused but not due negligence
5. Contributory Negligence (when both parties contributed equally)
DEFENCES

19. CONTRIBUTORY NEGLIGENCE
• This is the defence which can be used by defendant for
negligence. The foundation of this defence is based on principle
that not alone defendant is liable for negligence, but also the
plaintiff has also contributed for negligence.

20. • The legal maxim for the following is – ‘in pari delicto potior est
condition defendantis’ which means that if both parties are at equal
fault then the defendant condition is to be preferred. Both the parties
are equally responsible or liable for the injury. Though the burden of
proof lies on the defendant to prove that there was contributory
negligence.

21. The question comes that who caused the accident?
• The plaintiff can recover for the damages in spite of his negligence if it
was possible for the defendant to avoid it. (Rule of last Opportunity)
• In spite of defendant’s negligence plaintiff cannot recover for the damages.
• If negligence was caused by both plaintiff and defendant, plaintiff cannot
recover damages.

22. RES IPSA LOQUITUR (Speaking of the event itself)
• The general rule says that the burden of rule is on the plaintiff to
prove the negligence of the defendant. The initial burden of
making out at least a prima facie case of negligence as against the
defendant lies heavily on the plaintiff but once the plaintiff
proved his part.

23. • Then the burden goes to the defendant to prove that the incident or
damage caused was the result of inevitable accident or contributory
negligence.
• But if in the initial stage of case plaintiff was not able to prove
negligence on the part of the defendant, then defendant cannot be
made liable. Nor there is need for defendant to prove any thing.

24. NERVOUS SHOCK
• It is a shock to the nerve and brain structure of the body .
• It is not a physical injury either by stick, bullet or sword but merely by what has been seen or
heard.
• Example; injury through agitation caused by a false alarm or unlawful threats may result in a
nervous breakdown or a mental shock which may injure the plaintiff for his ordinary activities.
• It is a shock which arises from a reasonable fear to immediate personal injury to oneself.

25. Requirements
For a case under nervous shock, the plaintiff has to prove the
following things:
 Necessary chain of causation between nervous shock and the
death or injury of one or more parties caused by the defendant’s
wrongful act.

26.  Plaintiff is required to prove the shock caused to him by seeing
or hearing something. Physical injury is not necessary.
 His proximity to the accident was sufficient close in time and
space.