TORT OF NEGLIGENCE By- Madhvi Patidar@lexcliq

Torts are legal wrongs that one party suffers at the hands of another. Negligence is a form of tort which evolved because some types of loss or damage occur between parties that have no contract between them, and therefore there is nothing for one party to sue the other over. In the general sense, the term 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.

In the 1932 case of Donoghue v Stevenson, the House of Lords decided that a person should be able to sue another who caused them loss or damage even if there is no contractual relationship. Donoghue was given a bottle of ginger beer by a friend, who had purchased it for her. After drinking half the contents, she noticed that the bottle contained a decomposing snail and suffered nervous shock as a result. Under contract law, Donoghue was unable to sue the manufacturer because her friend was party to the contract, not her. However, the House of Lords decided to create a new principle of law that stated everyone has a duty of care to their neighbour, and this enabled Donoghue to successfully sue the manufacturer for damages. And till the time this case is having the same sparkles in law of torts as it had.

According to Winfield and Jolowicz, Negligence is the breach 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.

Tort of negligence can be characterized in three forms-

Nonfeasance: It means the act of failure to do something which a person should have done. For example, failure to carry out the repairs of an old building when it should have been done.

Misfeasance: It means the act of not doing an action properly when it should have been done properly. For example, Doing the repairs of an old building but doing so by using very poor-quality materials creating a major probability of a collapse which injures people.

Malfeasance: It means the act of doing something which should not have been done in the first place itself. For example, using products that are not allowed and combustible to carry out the repairs of an old building, therefore, converting the building into a firetrap leading to an accident.


In order to prove negligence and claim damages, a claimant has to prove a number of elements to the court.
These are:

  • the defendant owed them a duty of care
  • the defendant breached that duty of care, and
  • they suffered loss or damage as a direct consequence of the breach.

The essential points which constitute tort of negligence are –

  1. Duty of Care

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 acts, 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.

In the case of Stansbele vs Troman(1948), A decorator was engaged to carry out decorations in a house. Soon after the decorator left the house without locking the doors or informing anyone. During his absence, a thief entered the house and stole some property the value of which the owner of the house claimed from the decorator. It was held that the decorator was liable as he was negligent in leaving the house open and failed his duty of care.

  1. The Duty must be towards the plaintiff

A duty arises when the law recognizes a relationship between the defendant and the plaintiff and requires the defendant to act in a certain manner toward the plaintiff. It is not sufficient that the defendant owed a duty of care towards the plaintiff but it must also be established which is usually determined by the judge.
In the case of Bourhill v. Young (1943) the plaintiff who was a fishwife got down from a tram car and while she was being helped in putting her basket on her back, a motor-cyclist after passing the tram collided with a motor car at a distance of 15 yards which was on the other side of the tram. The motorcyclist died instantly and the plaintiff could not witness the accident or the dead body since the tram was standing between her and the place where the accident occurred. She had only heard the sound of the collision and once the body had been removed from the place of accident, she visited the place and saw some blood which was left on the road. As a reaction to this incident, she suffered a nervous shock and gave birth to a still-born child of 8 months because of which she sued the representatives of the deceased motorcyclist. It was held that the deceased had no duty of care towards the litigant and therefore she could not claim any damages from the deceased’s representatives.

The case of Donoghue v. Stevenson (1932) has evolved the principle that we each have a duty of care to our neighbour 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 plaintiff was successful in her claim that hat, she was entitled to a duty of care even though the defective good i.e., a bottle of ginger beer with a snail in it was bought, not by herself, but by her friend.

  1. Breach of Duty to take care

It’s not enough for a plaintiff to prove that the defendant owed him a duty of care but he must also establish that the defendant breached his duty to the plaintiff. A defendant breaches such a duty by failing to exercise reasonable care in fulfilling the duty. In other words, the breach of a duty of care means that the person who
has an existing duty of care should act wisely and not omit or commit any act which he has to do or not do as said in the case of Blyth v. Birmingham Waterworks Co, (1856). In simple terms, it means non-observance of a standard of care.

In the case of Ramesh Kumar Nayak vs Union of India(1994), The post authorities failed to maintain the compound wall of a post office in good condition on the collapse of which the defendant sustained injuries. It was held that postal authorities were liable since that had a duty to maintain the post office premises and due to their breach of duty to do so, the collapse occurred. Hence they were liable to pay compensation.

  1. Actual cause or cause in fact

In this scenario, the plaintiff who is suing the defendant for negligence has the liability to prove is that the defendant’s violation of duty was the actual cause of the damages incurred by him.
This is often called the “but-for” causation which means that, but for the defendant’s actions, the plaintiff would not have incurred the damages.
For example, when a bus strikes a car, the bus driver’s actions are the actual cause of the accident.

  1. Proximate cause

Proximate cause means “legal cause,” or the cause that the law recognizes as the primary cause of the injury. It may not be the first event that set-in motion a sequence of events that led to an injury, and it may not be the very last event before the injury occurs. Instead, it is an action that produced foreseeable consequences without intervention from anyone else. A defendant in a negligence case is only responsible for those damages that the defendant could have foreseen through his actions.
In the case of Palsgraf vs Long Island Railroad Co(1928), A man was hurrying while trying to catch a train and was carrying a packed item with him. The employees of the railway saw the man who was attempting to board the train and thought that he was struggling to do so. An employee on the rail car attempted to pull him inside the train while the other employee who was on the platform attempted to push him to board the train. Due to the actions of the employees, the man dropped the package. Which had contained fireworks, and exploded when it hit the rails. Due to the explosion, the scales fell from the opposite end of the station and hit another passenger, Ms. Palsgraf, who then sued the railway company. The court held that Ms. Palsgraf was not entitled to damages because the relationship between the action of the employees and the injuries caused to him were not direct enough. Any prudent person who was in the position of the railway employee could not have been expected to know that the package contained fireworks and that attempting to assist the man the railcar would trigger the chain of events which lead to Ms. Palsgraf’s injuries.

  1. Consequential harm to the plaintiff

Proving that the defendant failed to exercise reasonable care is not enough. It should also be proved that the failure of the defendant to exercise reasonable care resulted in damages to the plaintiff to whom the defendant owed a duty of care.

The harm may fall into the following classes: –
a.) Bodily harm
b.) Harm to the reputation
c.) Harm to property
d.) Financial Loss
e.) Mental Harm.

When such damage is proved, the defendant is bound to compensate the plaintiff for the damages occurred.

Negligence as a tort has evolved from the English law and accepted by the Indian law as a substantially important tort. As discussed, negligence is of two types, civil and criminal and each has various repercussions. In order to prove that an act was negligent, it is necessary to prove all the essentials namely duty, breach of duty, damages and actual and proximate cause. Tort of negligence has a wide domain in law and is consider as an one of the important tort.

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