CHAPTER 6:

NEGLIGENCE
 DEFINITION
◦ According to Winfield :
Negligence as a tort is the breach of duty to take care which result in damages.

◦ According to Alderson :

Negligence is the omission to do something which a reasonable man guided upon those consideration which ordinarily
regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do.

◦ In Jacob Mathew Vs State of Punjab - AIR 2005 SC 3180, the Apex Court observed:
“ Negligence is the breach of a 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 not 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, by which neglect , the plaintiff has suffered injury to his person or property.”
 CHARACTERISTICS
◦ Negligence means careless or unreasonable conduct which causes harm to another.
◦ A breach of legal duty to take care which results in damage to the claimant.
◦ Someone who commits a careless act that creates harm to another person is negligent.
Negligence has 3 key characteristics:
◦ The action is not intentional.
◦ The action is also not planned.
◦ Some type of injury is caused.
 ▪ Heaven V Pender (1883)

◦ It was held that under certain circumstances ‘one man may owe duty to another, even though
there is no contract’.
◦ One man is near to another or is near to property of another, duty lies upon him not to do an act
which may cause a personal injury to another other or may injure his property.

◦ Thus the decision of the case was founded upon the principle that a duty to care will arise if due
care is not taken towards the person or property of another resulting in damage done by one to
another.
 TYPES OF NEGLIGENCE
There are two types of Negligence :
1. Advertent Negligence
◦ Also called wilful negligence or recklessness.
◦ Harm done is foreseen as possible or probable, but it is not wilful
Example: Person who drives furiously in a crowded street causes injury to persons is said to have committed
Advertent Negligence.
2. Inadvertent Negligence
◦ Negligence as a result of ignorance, thoughtlessness or forgetfulness
◦ Harm is neither foreseen nor wilful.
Example: Doctor who treats a patient with negligence
 THEORIES OF NEGLIGENCE
◦ Subjective Theory of Negligence
◦ According to Austin, negligence results from inadvertence or failure
to apply one’s mind to the nature and consequences of one’s wrongful
act. In this sense, the negligent act is the opposite of an
intentional act.
◦ It is basically mental attitude of undue indifference with respect to
one’s conduct and its consequences.
◦ Thus, according to this theory negligence is a mode of committing
certain torts and not a separate or specific tort.
 THEORIES OF NEGLIGENCE
◦ Objective Theory of Negligence
◦ According to some jurists, negligence is not a state of mind but a particular kind of conduct. In this
view, negligence is due to failure to take reasonable precautions.
◦ According to Clark and Lindsell, negligence consists in the omission to take such care as under the
circumstances it is the legal duty of a person to take.
◦ It should be treated as a specific tort.
◦ The house of Lords in Donoghue Vs. Stevenson, (1932) AC 562 recognized this.
◦ Salmond criticized the objective theory on the following grounds:
◦ Failure to take care need not always be due to negligence. Failure to take precautions may be accidental or
wilful.
◦ By merely looking at the conduct of a man, it is not possible to assert whether the lack of care is negligent,
intentional or accidental.
 ESSENTIALS OF NEGLIGENCE
1. That the defendant owed a duty of care to the plaintiff.
2. The defendant breached that duty.
3. The plaintiff suffered damage as a consequence thereof.
 DUTY OF CARE

◦ The first element of negligence is the legal duty of care.

◦ It means a legal duty rather than mere moral , religious or social duty. There is no general rule of law defining such
duty.
◦ This concerns the relationship between the defendant and claimant, which must be such that there is an obligation
upon the defendant to take proper care to avoid causing injury to the claimant in all the circumstances of the case.
◦ It is accepted that negligence does not exist in a vacuum and that there is no universal duty owed to the whole
world in all circumstances.
◦ Duty of care, therefore, exists as a control device in order to determine who can bring an action for negligence and
in what circumstances.
◦ Demands for protection against negligent conduct are virtually limitless. When a person suffers loss as a result of
negligent conduct, they will want to shift that loss on to the person who caused it through a negligent action.
 DUTY OF CARE

There are two ways in which a duty of care may be established:

◦ the defendant and claimant are within one of the ‘special relationships’; or
◦ outside of these relationships, according to the principles developed by case law
Established duty situations: there are a number of situations in which the courts recognise the existence of a duty
of care. These usually arise as a result of some sort of special relationship between the parties. Examples include:
◦ one road-user to another
◦ employer to employee
◦ manufacturer to consumer (see Donoghue v. Stevenson)
◦ doctor to patient
◦ solicitor to client
Outside of these categories of established duty, a duty of care will be determined on the basis of individual
circumstances. The ‘neighbour principle’ formulated by lord Atkin in Donoghue v. Stevenson [1932] Ac 562 (hl) was
initially used to determine whether a duty of care existed between defendant and claimant.
 DUTY OF CARE

Donoghue v Stevenson [1932] AC 562

◦ A friend of the plaintiff purchased ginger beer in an opaque bottle. The plaintiff poured half of the ginger
beer into a glass and drank it. She then poured the remainder into the glass and saw the remains of a
decomposed snail. She claimed to have suffered illness as a result. She sued the manufacturers of the ginger
beer in negligence as she had no contract with either the retailer or the manufacturer. The House of Lords
laid down that a duty was owed by the defendant to the plaintiff.
According to Lord Atkin :
◦ A manufacturer of products which he sell in such a form as to show that he intends them to reach the
ultimate consumer in the form in which they left him with no reasonable possibility of intermediate
examination and with the knowledge the absence of reasonable care in the preparation of putting up the
products result in an injury to the consumer’s life or property, owes a duty to the consumer to take that
reasonable care.
 DUTY OF CARE
◦ The House of Lords had to decide whether a duty of care existed as a matter of law. The House of Lords held that
the manufacturer owed her a duty to take care that the bottle did not contain foreign bodies which could cause her
personal harm.
◦ The house of Lords also rejected the plea that there was absence of contractual relationship between the
manufacturer of the bottle and the plaintiff and allowed the consumer of bring an action in tort.
◦ The term Proximity rule was used by the lord Atkin
◦ The doctrine of privity of contract was established by this case.
◦ More importantly, the case establishes the neighbour principle which determines whether the defendant owes a duty
of care in any situation. Lord Atkin stated:
“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be
likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be persons who are so closely and directly
affected by my act that I ought reasonably to have them in my contemplation as being so affected when I am directing my mind to the acts or
omissions which are called in question.”
 DUTY OF CARE
Grant v. Australian knitting Mills Ltd (1936)
◦ In this case plaintiff contracted dermatitis as the result of the wearing a garment which when purchased
from the retailers, was in defective condition owing to the presence of excess sulphite which had been
negligently left in the process of manufacture.
◦ It was a hidden and latent defect and could not be detected by any physical examination that could
reasonably be made. The garment was made by the manufactures for the purpose of being worn exactly as it
was worn by the plaintiff.
◦ It was held that there was duty of care between the manufactures and the plaintiff for the breach of which
the manufactures were liable.
 DUTY OF CARE
Caparo Industries plc v. Dickman [1990] 2 AC 605 (HL)
The basic elements that need to be considered in establishing duty of care are :
◦ Was there reasonable foresight of harm?
◦ Was there sufficient proximity of relationship?
◦ Was it fair, just and reasonable to impose a duty?
Foreseeability of injury
◦ It means reasonable foreseeability of the injury to the plaintiff to determine whether the defendant owes any duty
to the plaintiff or not.
◦ If at the time of act or omission, the defendant could reasonably foresee injury to the plaintiff, he owes duty to
prevent that injury and failure to do that makes him liable.
Proximity in relationship,
◦ It implies that the parties are so related that it is just and reasonable that the duty should exist.
 DUTY OF CARE
◦ Liability for failing to act
◦ In general, you do not owe a duty to the world to take positive action to prevent harm.
Exceptions
There is a duty to act positively if there is a special relationship or a relationship of power or control between
the parties, examples include:
◦ prison officers and prisoners
◦ employer and employee
◦ occupier and visitor
◦ parent and child
 DUTY OF CARE
Unborn children
◦ The existence of a duty of care requires reasonable foresight of harm. However, in the case of unborn
children, the defendant might not realise that the female claimant is pregnant, although it is quite possible
that a person’s negligence might harm an unborn child.
Bourhill v. Young(1943)AC92
◦ A motor cyclist who drove negligently at an excessive speed consequently collided with motor car and was
killed could not have reasonably foreseen that the plaintiff, a pregnant woman seeing the accident would
suffer sever nervous shock resulting in birth of the still born child and accordingly, he owed no duty to her
for such result in injury to her for such result could not reasonably and probably be anticipated.
◦ Thus, the defendant was not negligent towards her.
 BREACH OF DUTY
◦ The second element of negligence is breach of duty. Having established that a duty of care exists in law and in
the particular situation, the next step in establishing liability is to decide whether the defendant is in breach
of that duty – in other words, whether the defendant has not come up to the standard of care required
by law.
◦ Where anyone is engaged in a profession, the law expects him/her to possess the average amount of
competence in that particular profession and if he hails to exercise that amount of average skill, he will be
held liable for negligence. The highest competence or skill is not expected.
◦ Apart from three elements of Duty of care, here learners are required to check fourth requirement (i.e) Did
the defendant fall below the required standard of care?
 BREACH OF DUTY
◦ 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 reasonable person
The conduct of the defendant will be measured against that of the reasonable person. What are the
characteristics of such a person? In Hall v. Brooklands Auto-Racing Club [1933] 1 KB 205 (CA), Greer LJ described
such a person as:
◦ ‘the man in the street’; or
◦ ‘the man on the Clapham omnibus’
 BREACH OF DUTY
◦ The importance of the object attained
◦ The law does not require greatest possible care, but the care is that of the reasonable man under certain
circumstances.
The magnitude of the risk
The degree of care varies as per the likelihood of harm and seriousness of injury.
For example- A person handling a loaded gun is expected to take more care than a person carrying an ordinary
stick.
Smt. Shivkhor V Ram Naresh (AIR 1978 )
It was held that the teachers were negligent as they did not take proper care of the boys.
 BREACH OF DUTY
◦ Rural Transport Service vs Bezlum Bibi, AIR 1980 Cal 165
◦ Deceased boarded a bus run by the appellant. Since the bus was overcrowded the deceased along with other
passengers got on to the roof of the bus as there was no accommodation available inside the bus. He took his
seat on the right side. The deceased was struck by an overhanging branch of a tree, and he fell down on the
ground sustaining multiple injuries in his forehead, chest etc. He died on the day following as a result of the
injuries suffered. The mother and the brother of the deceased lodged a claim of Rs. 20,000 by way of
compensation against the appellant and the insurer.
◦ Court held that driver and the conductor were negligent. Inviting passengers to travel on the roof amounts
to rash and negligent act and a great amount of care and caution is expected from them.
 BREACH OF DUTY
Municipal Corporation of Delhi vs. Subhagwanti (1996)
A clock tower situated in the heart of the city i.e. Chandni chowk, Delhi, collapsed causing the death of a
number of persons. The structure was 80 years old whereas its normal life was 40-45 years. The MCD, who
was having control of it had obviously failed to get the periodical check up and the necessary repairs done had
pay compensation for the consequences of the collapse structure and breach of their statutory duty.
Muir Vs. Glasgow Corporation, (1943) AC 488
◦ This action arises out of an unfortunate accident to six young children in the old mansion house in the
King's Park, Glasgow, which belonged to the appellants. At that time the mansion house was being used inter
alia for the service of teas to visitors to the park.
◦ Two members of picnic party were carrying big urn containing hot tea to the tea room. Suddenly one of the
person lost the grip of the handle of the urn thereby injuring the children. It was alleged that manager could
not anticipate such an event would happen as a consequences of tea urn being carried through passage and
therefore, had no duty to take precautions against the occurrence of this event.
 BREACH OF DUTY
◦ Lord MacMillan observed:
“The standard of foresight of the reasonable man is, in one sense, an impersonal test. It eliminates the
personal equation and is independent of the idiosyncrasies of the particular person whose conduct is
in question. Some persons are by nature unduly timorous and imagine every path beset with lions. Others, of
more robust temperament, fail to foresee or nonchalantly disregard even the most obvious dangers. The
reasonable man is presumed to be free both from over-apprehension and from over-confidence, but
there is a sense in which the standard of care of the reasonable man involves in its application a subjective
element. It is still left to the judge to decide what, in the circumstances of the particular case, the
reasonable man would have had in contemplation, and what, accordingly, the party sought to be
made liable ought to have foreseen. Here there is room for diversity of view, as, indeed, is well illustrated in
the present case. What to one judge may seem far-fetched may seem to another both natural and probable.”
 BREACH OF DUTY
Ishwar Devi V Union of India ( AIR 1969 Del 183)

In this case the conductor and driver of the bus were held liable for rash and negligent act. In this case when the deceased placed his
foot on the foot-board of the bus and had not yet gone in, the conductor in a very hasty manner rang the bell and the driver started
the bus. All this was done in an attempt to overtake another bus as a result of which the deceased got squeezed or sandwiched
between the two buses and sustained serious injuries and died.
Sushma Mitra vs Madhya Pradesh State Road, AIR 1974 MP 68
◦ The facts that the plaintiff alleged were was going in Bus belonging to the Madhya Pradesh State Road Transport Corporation,
from Jabalpur to Chhindwara. There was a head-on collision between the two vehicles at a distance of about seven miles from
Jabalpur. As a result of this impact, the plaintiff received severe injuries to her right elbow causing multiple fractures.
◦ Motor Owners Insurance Co., which was the insurer of the truck, pleaded that the Plaintiff projected her right elbow outside the
bus in which she was travelling and sustained the injuries on account of her own fault knowing well that a vehicle was coming from
opposite direction.
◦ In the opinion of the trial Court, the plaintiff herself was negligent in keeping out her elbow and therefore, she was not entitled to
any damages.
 BREACH OF DUTY
◦ Justice GP Singh observed
◦ “I have not been referred to any Indian or English authority in which a duty of care may have been
recognised in favour of a Passenger who keeps his elbow out. But absence of a direct precedent to cover
the facts of the instant case does not imply that no duty situation can be recognised in this case”.
◦ “It cannot be disputed that the driver of a bus which carries passengers owes a duty of care for the safety of
passengers. While driving he must have the passengers in contemplation and he must avoid acts or
omissions which can reasonably be foreseen to injure them and in deciding what acts or omissions he
should avoid, he must bear in mind the normal habits of passengers. It is a matter of common experience
that passengers who sit adjoining a window very often rest their arm on the window sill by which
act the elbow projects outside the window”.
◦ HC also rejected the argument of contributory negligence as passengers were not cautioned to not to rest
their arm on window.
 BREACH OF DUTY
◦ The reasonable person, therefore, is ‘average’, not perfect. In deciding whether a defendant has breached the duty of care, the
court applies an objective test. In other words, the general question is ‘what would a reasonable person have foreseen in this
particular situation?’ rather than ‘what did this particular defendant foresee in this particular situation?’.
◦ The terms duty of care and standard of care are not synonymous. The standard of care determines whether a particular duty of
care has been breached. One should always consider the existence of the duty itself before discussing whether or not a particular
defendant has reached the appropriate standard required to absolve him or her from liability.
Special standards of care
There are certain situations in which the courts apply a different standard of care from that of the reasonable person since the
application of the general standard of care as that of the reasonable person would not be suitable:
◦ where the defendant has a particular skill;
◦ where the defendant has a particular lack of skill;
◦ where the defendant is a child;
◦ where the defendant is competing in or watching a sporting event.
For instance, a doctor would be expected to show a greater degree of skill and care to a patient than ‘the man on the Clapham
omnibus’
 BREACH OF DUTY
V.Krishan Rao Vs Nikhil Super Speciality Hospital, (2010) 5 SCC 513
◦ Krishna Rao, an officer in malaria department filed a complaint against the hospital for negligent conduct in
treating his wife. His wife was wrongly treated for typhoid fever instead of malaria fever, due to the wrong
medication provided by the hospital.
◦ Finally, the verdict was given and Rao was awarded a compensation of Rs 2 lakhs. In this case, the principle
of res ipsa loquitor (thing speak for itself) was applied and the compensation was given to the plaintiff.
◦ Jacob Mathew .V. State of Punjab, 2005 (6) SCC 1
◦ The Supreme court held that in some cases of medical profession the doctors are equipped in certain
situation where they have to make choices between a devil and the deep sea.
◦ Sometimes in certain situation there must be greater risk in the operation but higher chances of success and
in another move there would be lesser risk but higher chances of failure.
◦ So the decision, that which course would be follow will depend on facts and circumstances of case.
 BREACH OF DUTY
Sporting events
◦ Spectators and competitors in sporting events may be owed a lower standard of care than the general
standard.
◦ Wooldridge v. Sumner [1963] 2 QB 43 (CA)
◦ Concerning: standard of care owed to spectators
◦ Facts: An experienced rider at an equestrian event galloped his horse around a corner so quickly that the
horse went out of control, plunged off the track and injured a photographer in the ensuing chaos.
◦ Legal principle: This was held to be ‘an error of judgment’ on the part of the rider rather than actionable
negligence; furthermore, the Court of Appeal held that the duty of care would only be breached where a
competitor demonstrated a ‘reckless disregard’ for the safety of the spectator.
 BREACH OF DUTY
No foreseeability ,no liability of the defendant
When the injury to the plaintiff is not foreseeable then the defendant is not liable.
Cates vs. Mongini Bros (1917)
◦ The plaintiff, a lady visitor to a restaurant was injured by the falling of celling fan on her. There was latent
defect in the fan which could not have been discovered by a reasonable man. It was held that since the harm
was not foreseeable, the defendants were not negligent and therefore were not liable
Krishnappa Naidu V The Union of India (1975)
◦ The taxi of the plaintiff was hit by the railway train while passing through a level crossing. Plaintiff entered
the place despite the warning given by the gateman and therefore the plaintiff was a trespasser whose
presence couldn’t have been anticipated by the defendant. The accident couldn't be averted. Held that there
was no negligence on the part of railway administration, the defendants were not liable.
◦
 BREACH OF DUTY
Proximity in relationship, which implies that the parties are so related it is just and reasonable that
the duty should exist.
◦ To establish negligence, it is not enough to prove that the injury was foreseeable, but a reasonable likelihood
of the injury should also be shown.
◦ Reasonable foreseeability does not mean Remote possibility.
◦ There must be proximity in relationship
◦ If the possibility which could never occur to the mind of the reasonable man then there is no negligence in
not having taken care extraordinary precaution.
Duty must be towards the plaintiff:
◦ It is essential; to prove that the defendant owes a duty of care to the plaintiff otherwise the plaintiff can not
sue the defendant even if he might have been injured by the defendant’s act.
 BREACH OF DUTY
Dickson vs. Reuter’s Telegraph Co (1877)
◦ A telegraph meant for B by A was wrongly delivered to C . C acted on the telegram and sent goods to A but
A refused to accept the goods as he had ordered the goods from B and not from C. On a suit by C upon the
telegram company it was held that the company did not owe any duty of care to C. C had therefore no cause
of action.
Palsgraf vs. Long Island Railroad Co ( 1928)
◦ A passenger was trying to board a moving train . He seemed unsteady and as if he was about to fall. A
Railway guard with a view to help him, pushed the passenger from behind in order to enable him to board
the train. In the process, the passenger who was in possession of fireworks dropped the package resulting
into an explosion. The shock of explosion caused a tall, coin-operated scale to topple onto the plaintiff
scales who was about 25 feet away causing her injury. She sued the defendants for negligence. It was held that
the guard if negligent to the holder of the package was not negligent in relation to the plaintiff standing far
away.
 BREACH OF DUTY
Haley vs. London Electricity Board (1965)
◦ The defendant had dug a pit on the road for the purpose of installation of the electric wire. They had legal
authority to dig pit on the road they had taken proper precaution for the safety of passer-by which was
adequate for persons for general eyesight. The plaintiff who was blind man, fell into the pit and was seriously
injured. It was found that safety measures applied by the defendant were adequate for only able-bodied
persons and not for the visually impaired.
◦ The court held that defendants were liable for negligence.
King vs. Philips (1953)
◦ In this case The defendant, a taxi while reversing his taxi carelessly ran over the tricycle of small boy who was
playing on the streets. His mother heard his screams from the window of the house and saw the tricycle
under the taxi and as a consequence, she suffered nervous shock. It was held that although the defendant
was negligent vis-à-vis the boy, he was not negligent towards the mother of the boy and was therefore not
liable to her.
 BREACH OF DUTY
Other relevant factors
◦ When determining the standard of care, the courts will take all the circumstances
of the case into account. This will possibly involve consideration of a number of
other relevant factors including:
◦ the magnitude of the risk
◦ the cost and practicability of precautions
◦ the social value of the defendant’s activities
◦ what the reasonable person would have foreseen.
 BREACH OF DUTY
Magnitude of the risk
◦ The degree of care requires varies according to each situation. What may be careful act in one situation may
be a negligent act in another. The law does not demand the same amount of care under all situations. The
kind of risk involved determines the precautions which the defendant is expected to take.
◦ The position in this regard was explained by Venkataramiah, J. in Mysore State Road Transport
Corporation vs. Albert Disa(1973) as under:
◦ Negligence is the failure in the duty to take care. The expression ‘due’ connotes that degree of care which a
reasonable man ought to take in a given set of circumstances. What may amount to ‘negligent’ act in a
particular place and occasion may not be a negligent act in another place or occasion. In deciding what care
was called for by a particular situation, one useful test is to enquire how obvious the risk must have been to
an ordinary prudent man. The question in each case, therefore, depends upon its own facts.
 BREACH OF DUTY
◦ The degree of care depends upon the magnitude of risk which could have been
foreseen by a reasonable and prudent man. Thus, the driver of a vehicle should
take greater care when it is drizzling ( Satyawati Devi vs. Union of India, AIR
1967 Del 98). The person carrying a loaded gun is expected to take more
precaution than a person carrying an ordinary stick. Greater care is required to be
taken in transporting inflammable and explosive materials than in transporting
ordinary goods. Thus there is no absolute standard, but it may be said generally
that the degree of care varies directly with the risk involved. Those engaged
in operating inherently dangerous substances must take precautions which are not
required of persons engaged in the ordinary routine of daily life.
 BREACH OF DUTY
Nirmala vs. Tamil Nadu Electricity Board ( 1984)
◦ High tension wire running over a farm got snapped, and the plaintiff’s husband, who treaded upon the wire,
was instantaneously struck dead by electrocution. It was held that the defendants, who were maintaining the
said wire had failed to maintain them properly, which made the wires to snap, and they had further failed to
provide a device whereby the snapped would have automatically become dead and harmless. The defendants
were held liable for negligence.
Kerala State Electricity Board vs. Suresh Kumar (1986)
◦ A minor boy came in contact with an overhead electric wire which had sagged to 3 feet above the ground,
got electrocuted thereby and received burn injuries. The electricity board had a duty to keep the overhead
wire 15 feet above the ground. The Board was held liable for the breach of its statutory duty.
 BREACH OF DUTY
Smt. Shivoker vs. Ram Naresh ( AIR 1978 Guj 115)
◦ In this case two teachers accompanied a group of 60 boys to a picnic. Both the teachers
started taking meals at the same time. Some of the boys went to a nearby river and one of
them ,aged 12 years drowned. It was held that the teachers were negligent as they did not
take proper care of the boys.
Bishwa Nath Gupta vs. Munna (1971)
◦ Driving of a truck at a speed of 10 to 12 miles per hour was held to be negligent when
the children playing on a road were visible to the driver and he could anticipate that some
of them may cross the road on seeing the approaching truck. The duty in such a case was
to drive so slow that in case of necessity the vehicle could be immediately stopped.
 BREACH OF DUTY
Indian Roadways Corporation V Karunanidhi ( AIR 1982 Mad 104)
◦ Three boys were going by the same cycle on the left side of the road . A bus was
coming from the opposite direction. The speed of the bus was slowed down
because bus stop was approaching. Seeing the dogs fighting on the road the driver
further slowed down the speed of the bus. The dogs began to the run towards
the cyclist. In order to save themselves from dogs the cyclist turned it towards the
right side and in doing so he lost control of the cycle and one of them fell down
on the right side and two on the left side. The driver saw them falling but did not
apply the brakes immediately and consequently the bus run over the right hand of
the boy permanently disabling it. It was held that the driver was negligent in not
stopping the bus and they were therefore liable.
 BREACH OF DUTY
Unskilled defendants
◦ The general standard of care in negligence is an objective test, judged against the standards of the reasonable
person. this means that no allowance is made for the inexperience or lack of skill of the defendant.
◦ Nettleship v. Weston [1971] 2 QB 691 (ca)
◦ Concerning: negligence; unskilled defendants
◦ Facts: A learner driver crashed into a lamp post and injured her instructor.
◦ Legal principle: the driver was liable despite her inexperience. the standard of care required of all
motorists is the same: that of the reasonably competent driver
 BREACH OF DUTY
Policy consideration:
◦ Policy consideration are material in limiting the persons who can claim that duty of care not to cause economic loss was owed to
them by a person committing a wrong
◦ For example, if because of A, an artisan(B) is injured and is unable to supply goods, which he makes ,to his customers with whom
he has contracts not only B but also his customers may suffer foreseeable economic loss but on policy consideration. A cannot be
held to owe any duty of care to the customers who cannot sue him. B can sue A for loss of earnings which will include loss of
profits. Earnings include fees and shares and profits.
Social value
◦ Where the defendant’s behaviour is in the public interest, it is likely to require the exercise of a lower standard of care.
In Daborn v. Bath Tramways Motor Co Ltd [1946] 2 All ER 333 (CA)
◦ Asquith LJ stated that ‘the purpose to be served, if sufficiently important, justifies the assumption of abnormal risk’. Where human
life is at risk, a defendant may also justifiably take abnormal risks .
◦ However, this does not mean that the defendant is justified in taking any risk. Emergency services, for example, must still take care
in passing red traffic signals and remember to use their sirens and lights to alert other road users to their presence.
 DAMAGE
◦ The third element for negligence is the damage caused to the plaintiff
because of breach of defendant’s duty. The plaintiff also needs to
show that the damage cause is not too remote a consequence of the
defendant’s negligence. In suits in which damages are claimed, the
onus is on the plaintiff to prove all items of the damages.
◦ The duty to assess the damage, is, however, entirely upon the Courts.
In doing so the Court resorts to the rules which regulate the practice
of Courts.
 DAMAGE
◦ Proof of Negligence: Res Ipsa Loquitur
◦ The legal burden of proving breach of duty is on the claimant. This must be established ‘on balance of
probabilities’. However, there are certain circumstances in which the claimant may have some assistance like where
the maxim res ipsa loquitur applies.
◦ This is a Latin phrase which means ‘the thing speaks for itself ’.
◦ In certain circumstances courts will be prepared to find a breach of duty against the defendant without hearing
detailed evidence and therefore prima facie negligence. There are three conditions which must be satisfied for the
claimant to be able to use res ipsa loquitur.
Claimant will be assisted by res ipsa loquitur if:

1. the thing causing the damage is under the control of the defendant or someone for whose negligence the
defendant is responsible;
2. the cause of the accident is unknown;
3. the accident is such as would not normally occur without negligence.
 DAMAGE
◦ If res ipsa loquitur is available, then it raises a prima facie presumption of negligence against the defendant. The
defendant must then explain how the accident could have occurred without negligence. If the defendant
succeeds, then the claimant must try to prove the defendant’s negligence. This will be difficult, since, if
negligence could be proved it is unlikely that the claimant would have relied on res ipsa loquitur in the first
place. The burden of proof does not shift from the claimant
Municipal Corporation of Delhi vs. Subhagwanti (1996)
◦ A clock tower situated in the heart of the city i.e. Chandni chowk, Delhi, collapsed causing the death of a
number of persons. The structure was 80 years old whereas its normal life was 40-45 years. The MCD, who
was having control of it had obviously failed to get the periodical check up and the necessary repairs done
had pay compensation for the consequences of the collapse structure and breach of their statutory duty.
◦ The Supreme Court held that the fall of the clock tower tells its own story in raising an inference of
negligence on the part of the defendant.
 DAMAGE
◦ Nervous shock
It is shock to nerves and brain structure of the body. It provides relief when a person may get
physical injury not by an impact for example by stick, bullet but merely by a nervous shock
through what he has seen or heard.
◦ Victorian Railway Commissioner vs. Coults ( 1888)
The question was whether damages could be claimed for mental shock and pain due to fear
resulting from a collusion. The privy council refused to recognise liability for the injury caused by
the shock through eye or ear without having the physical contact.
◦ The mental pain or shock is such thing which neither the law can asses its value nor can provide
any remedy for it.
 DAMAGE
Wilkinson vs. Downton ( 1897)
◦ The defendant In order to tease the plaintiff played a practical joke with the plaintiff by giving her false news that
her husband was injured in an accident and was admitted to a hospital and that she should go immediately in a taxi
and bring him home. After hearing such sad news about her husband the plaintiff suffered the nervous shock and
she become ill and as result of this, her hair became white and her health deteriorated. She had to spend a lot of
money in her treatment. These consequences were not in any way the result of a history of bad health or weakness
of constitution; nor was there any evidence of predisposition to nervous shock or any other idiosyncrasy.It was held
the plaintiff was entitled to damage.
Dulieu vs. White (1901)
The claimant was pregnant and behind the bar in her husband’s public bar. A horse and cart crashed into the pub.
The claimant was not physically injured but feared for her safety and suffered shock. She gave birth prematurely nine
days later and the child suffered developmental problems.
Held:
An action could lie in negligence for nervous shock arising from a reasonable fear for one’s own immediate safety.
 DAMAGE
Plaintiff must prove the following things:
◦ Necessary chain of causation between the nervous shock and the death or injury
of one or more parties caused by the defendant’s wrongful act.
◦ Plaintiff required to prove shock caused to him by seeing or hearing something.
Physical injury is not necessary.
◦ Close relationship with plaintiff is necessary to be shown and also that his
proximity to the accident was sufficiently close in time
 DAMAGE
Kinds of Damages :
Compensatory Damages
◦ The word "compensate" means "to offset an error or undesirable effect." Compensatory damages,
therefore, are meant to make up for an injury sustained by an individual. There are two basic types
of compensatory damages: actual and general. Actual damages reimburse an individual for funds
paid out-of-pocket for medical treatments, lost wages, substitute transportation, property
replacement or repair, and rehabilitation. An accident victim can also sue for general damages,
which include estimates of loss not involving actual monetary expenditure. Mental anguish,
disfigurement, future medical expenses, future lost wages, long-term pain and suffering, loss of
consortium, and loss of opportunity are all examples of general damage.
 DAMAGE
Punitive Damages
◦ Punitive damages are meant to punish a defendant for acts of gross negligence or intentional misconduct that
cause personal injury to the plaintiff. They are not calculated by the extent of the actual injury, but rather are
meant to prevent the defendant or others in similar situations from allowing or causing the same sort of
accident to happen in the future. For example, if a person intentionally runs an automobile into a pedestrian,
punitive damages may be appropriate.
Nominal Damages
◦ In a case where the evidence of actual damages is slight, the courts may still choose to award the plaintiff a
small sum of money to acknowledge that he or she was legally wronged by the defendant.
 CAUSATION AND REMOTENESS OF DAMAGE

◦ Causation and remoteness provide the link between the defendant’s negligent conduct and the harm suffered
by the claimant.
CAUSATION
◦ The claimant must show a causal link between the defendant’s act or omission and the loss or damage
suffered. This is often referred to as the ‘chain of causation’.
Factual causation
◦ The breach of duty must be the factual cause of the damage. The general test used by the courts to determine
factual causation is known as the ‘but for’ test.
 CAUSATION AND REMOTENESS OF DAMAGE

◦ Cork v. Kirby MacLean Ltd [1952] 2 All ER 402 (CA)

◦ Concerning: causation; ‘but for’ test
◦ Facts: A workman, an epileptic, was set to work painting the roof inside a factory, which necessitated his
doing the work from a platform some 23 feet above the floor of the factory. There were no guard-rails . The
workman fell from the platform and was killed.
◦ Legal principle: Lord Denning stated that:
◦ . . . if the damage would not have happened but for a particular fault, then that fault is the cause of the
damage;
◦ if it would have happened just the same, fault or no fault, the fault is not the cause of the damage.
◦ In this case, had appropriate railings been installed, the claimant would not have not fallen off the platform
while having the seizure.
 CAUSATION AND REMOTENESS OF DAMAGE

◦ Barnett v. Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428 (QBD)
◦ Concerning: causation; ‘but for’ test
◦ Facts
◦ A patient was turned away from a casualty department by a doctor who refused to examine him. He later
died of arsenic poisoning. It was shown that the man would not have recovered even if the doctor had
treated him.
◦ Legal principle
◦ The hospital was not liable for the clear breach of duty in failing to treat the patient. The failure to treat was
not the cause of death. The patient would have died just the same.
 CAUSATION AND REMOTENESS OF DAMAGE

Problems in proving factual causation

◦ Although the ‘but for’ test might seem straightforward, there are situations in
which proving factual causation is more difficult. This can occur in cases
involving:
◦ multiple causes of damage
◦ a ‘lost chance’ of recovery
◦ multiple consecutive causes of damage.
 CAUSATION AND REMOTENESS OF DAMAGE

Multiple causes of damage

◦ Where there is more than one possible cause of harm to the claimant, the claimant does not have to show that the
defendant’s breach of duty was the only cause of damage or even the main cause of damage.
Bonnington Castings Ltd v. Wardlaw [1956] AC 613 (HL)
◦ Concerning: causation; multiple causes of damage
Facts
◦ The claimant contracted pneumoconiosis after working for years in dusty conditions. There were two main causes
of dust in the foundry, one of which was required by law to be extracted. It was impossible to prove which dust the
claimant had inhaled.
Legal principle
◦ Since the dust which should have been extracted was at least a partial cause of the damage, the defendant was liable
in negligence. The claimant therefore only needs to show that a defendant’s breach of duty ‘materially contributed’ to
the damage.
 CAUSATION AND REMOTENESS OF DAMAGE

◦ A ‘lost chance’ of recovery

◦ The courts are extremely reluctant to impose liability where the negligence of the defendant caused the claimant to
lose a chance.
◦ Hotson v. East Berkshire Area Health Authority [1987] AC 750 (HL)
◦ Concerning: causation; lost chance
◦ Facts
◦ A boy fractured his hip when he fell from a tree. The hospital made a misdiagnosis and the boy developed a hip
deformity. Experts confirmed that he would have had a 75% chance of developing the deformity with a correct
diagnosis. The Court of Appeal upheld the decision of the trial judge who awarded the boy 25% of the damages
that were considered appropriate for his injury. The Health Authority appealed to the House of Lords.
◦ Legal principle
◦ The decision of the Court of Appeal was reversed. The House of Lords considered that, since there was only a
25% chance that the negligence had caused the boy’s injuries, this did not satisfy the balance of probabilities.
 CAUSATION AND REMOTENESS OF DAMAGE

Multiple consecutive causes of damage

◦ Where there are consecutive causes of damage, the application of the ‘but for’ test is applied to the original
defendant.
Performance Cars Ltd v. Abraham [1962] 1 QB 33 (CA)
◦ Concerning: multiple consecutive causes
Facts
◦ The first defendant negligently drove into a Rolls-Royce. The Rolls-Royce was later negligently struck by
another car, driven by the second defendant.
Legal principle
◦ The first defendant remained liable. The second defendant was not liable for the cost of the respray since
the car already needed a respray on the same point at the time of the collision with the second defendant.
 CAUSATION AND REMOTENESS OF DAMAGE

◦ Novus actus interveniens

An intervening act may break the chain of causation between the defendant’s breach of duty and the loss or
damage suffered by the claimant.
◦ If the novus actus interveniens is sufficient to break the chain, then the defendant may not be liable despite
being in breach of the duty of care. The intervening act may be:
◦ a third-party act;
◦ an act of the claimant; or
◦ an act of nature.
 CAUSATION AND REMOTENESS OF DAMAGE

◦ For a third-party act:

Jobling v. Associated Dairies, [1982] AC 794 (HL)
◦ Facts: The claimant was injured at work due to his employer’s negligence. He slipped and injured his back
and lost 50% of his earning capacity as a result. Three years later, he developed spondylotic myelopathy, a
spinal disease. This had not been brought about by the accident. He was consequently unable to work.
◦ Legal Principle: The disease of the spine was held to be a novus actus interveniens which did break the chain of
causation.
 CAUSATION AND REMOTENESS OF DAMAGE

Act of the claimant

◦ In this case, the novus actus interveniens will mean that the claimant is responsible for his own damage.
◦ McKew v. Holland Ltd [1969] 3 All ER 1621 (HL)
◦ Concerning: novus actus interveniens; act of the claimant
Facts: As a result of the defendants’ negligence, the claimant suffered a leg injury. This left his leg seriously
weakened. He later fell when attempting to descend a steep flight of steps with no handrail, suffering further
serious injuries. He did not seek assistance in climbing the stairs.
Legal principle: The claimant’s act in attempting to descend a steep staircase without a handrail in the normal
manner and without adult assistance when his leg had previously given way on occasions was unreasonable.
The court held that his act was a novus actus interveniens which had broken the chain of causation.
As a result, the defendants were not liable in damages for his second injury.
 CAUSATION AND REMOTENESS OF DAMAGE

Act of nature
◦ Intervening acts of nature will not generally break the chain of causation.
◦ However, the defendant will not normally be liable where the intervening act of nature is unforeseeable and
separate from the initial negligent act or omission.
◦ Carslogie Steamship Co Ltd v. Royal Norwegian Government [1952] AC 292 (HL)
◦ Concerning: novus actus interveniens; act of nature
Facts: The claimant’s ship was damaged following a collision. After temporary repairs, the ship then set off on
a voyage to a port in the United States where permanent repairs could be carried out. During her voyage across
the Atlantic the ship sustained further heavy damage during a storm.
Legal principle: The defendants were not liable for the damage caused by the storm. The court held that the
storm could have happened on any voyage and therefore the storm damage was not a consequence of the
collision. It was unforeseeable and quite separate.
 CAUSATION AND REMOTENESS OF DAMAGE

REMOTENESS OF DAMAGE
◦ The consequence of a wrongful act may be endless or there may be consequences of consequences. For
example- a cyclist hits a pedestrian carrying explosives and the bomb explodes. The pedestrian and four other
people going on the road die and twenty people are injured. A building is engulfed in fire due to the same
explosion and some residents are severely injured. The question is can the cyclist be liable for all these
consequence?
◦ In jure non remota causa sed proxima spectator- in law the proximate, and not the remote, cause is to be
regarded.
◦ The plaintiff has to prove that the injury caused to him is the direct consequences of the defendant’s act
◦ No one can be held liable for all consequences of his wrongful act because there is no end to his
consequences of his act .He will be liable only for those consequences which are direct consequences of his
negligence .
 CAUSATION AND REMOTENESS OF DAMAGE

Lisbosch Dredger V .S S. Edison (1939)

◦ Lord Wright has said:
“The law cannot take account of everything that follows a wrongful act ,it regards a subsequent matters as
outside the subsequent matter as outside the scope of its selection because of it were infinite for the law to
judge the causes of causes, or consequences of consequences. In the varied web of affairs, the law must
abstract some consequences as relevant not perhaps on the ground of pure logic but simply for practical
reasons.”
In problem of remoteness one has to establish:
◦ Whether the relation, the defendant’s breach of duty and the plaintiff’s injury is one of cause and effect -------
if Yes then defendant is liable.
 CAUSATION AND REMOTENESS OF DAMAGE
Direct and immediate consequences
◦ It is very plain that intended consequences are not remote ,they are direct and remote consequences the causal
connection between the act and the consequences and the cause and effect.
◦ A person is presumed to intend the natural and probable consequences of his own act.
Scott vs. Shepherd( 1773)
A man can not stop the risk or the consequences at his pleasure nor is he liable to confine the same to the precise and
definite objects he planned out, he will have to abide by the same fully to the end.

Too Remote consequences

◦ Plaintiff ’s own act
◦ Act of person bound by law to decide
◦ Act of independent third party
 CAUSATION AND REMOTENESS OF DAMAGE
There are two tests to determine whether the damage is remote or not:
1. Test of reasonable foresight
According to this test, if the consequences of a wrongful act could have been foreseen by a reasonable man,
they are not too remote. If, on the other hand, a reasonable man would not have foreseen the consequences,
they are too remote.
Rigby vs. Hewit (1850)
◦ The liability of the defendant is only for those consequences which could have been foreseen by a reasonable
man placed in the circumstances of the wrongdoer. According to this test, if X commits a wrong, X will be
liable only for those consequences which X could foresee, for whatever could not have been foreseen is too
remote a consequence of X’s wrongful act.
 CAUSATION AND REMOTENESS OF DAMAGE
2. Test of directness
◦ The test of reasonable foresight was rejected by the test of directness was considered to be more appropriate by the Court
of appeal in Re Polemis and Furness, Withy & Co. Ltd (1921).
◦ According to the Test of directness, a person is liable for all the direct consequence of his wrongful act, whether he could
have foreseen them or not; because consequences which directly follow a wrongful act are not too remote. The only
question which has to be looked into is whether the defendant's case wrongful or not, i.e. whether he could foresee some
damage or not? If the answer is in affirmative, then he is liable not just for those consequences but for all the direct
consequences of his wrongful act.
◦ Smith Vs. London and South Western Railway Co. (1870)
In this case servant of the London Railway company after cutting hedge and grass negligently left it near the railway line. It
was a dry weather and spark from the railway engine set fire to the heap of grass. Due to the high wind the fire was carried
to the plaintiff’s cottage which was burnt. The court held the defendant company was liable for the negligence of their
servants though they could not have the foreseen the loss to the cottage of the plaintiff.
Re Polemis and Furness, Withy & Co Ltd [1921] 3 KB 560 (CA)
◦ 􏰀 Concerning: remoteness of damage
◦ 􏰀 Facts: The charterers of a ship filled the hold with a cargo including a number of containers of petrol. These filled the hold with petrol
vapour which ignited when a heavy plank was dropped into the hold by a labour whilst the ship was unloading, destroying the ship.
◦ 􏰀 Legal principle: The Court of Appeal held that the defendant was liable. Although the fire itself may not have been
foreseeable, it was held that the defendant would nevertheless be liable for all direct consequences of his actions. The court
reasoned that if the act would or might probably cause damage, the fact that the damage it in fact caused is not the exact kind of
damage one would expect is immaterial, so long as the damage is in fact directly traceable to the negligent act and not due to
the operation of independent causes.
◦ 􏰀 That a defendant can be deemed liable for all consequences flowing from his negligent conduct regardless of how unforeseeable such
consequences are.
◦ 􏰀 Popularly knows as test of directness.
◦ The test in Re Polemis does not limit liability for the direct consequences of a negligent act, however severe or unforeseeable those
consequences may be. It has been criticised for its unfairness in that respect.
 CAUSATION AND REMOTENESS OF DAMAGE

◦ Overseas Tankship (UK) Ltd v. Morts Dock and Engineering Co Ltd (The Wagon Mound) (No 1) [1961] AC 388 (PC)
◦ Concerning: remoteness of damage
◦ Facts: The defendants negligently leaked a quantity of bunkering oil into Sydney Harbour from a tanker. This oil drifted into the
claimant’s wharf where it mixed with assorted debris. Welding was taking place in the wharf. The claimants sought (and received)
assurances that it was safe for them to continue welding. However, sparks from the welding ignited the oily wadding which caused
fire to spread to two ships, damaging them. The wharf was also damaged.
◦ Legal principle: At first instance, the trial judge applied the principles from Re Polemis, finding that the defendants were liable
for the fire damage, since the damage to the wharf was a foreseeable consequence of the leakage.
◦ On appeal, the Privy Council reversed the decision, holding that the correct test for remoteness is reasonable foreseeability
of the kind or type of damage in fact suffered by the claimant.
◦ Court observed:
◦ “Even a fool may be wise after the event. But it is not sight of a fool, it is the foresight of a reasonable man which alone can
determine responsibility.
 CAUSATION AND REMOTENESS OF DAMAGE

◦ The tests in Re Polemis and The Wagon Mound (No 1) cannot be reconciled. The decision in Re Polemis was taken by
the Court of Appeal and has never been overruled, since The Wagon Mound (No 1) was heard by the Privy Council.
◦ As such both cases remain good law. However, The Wagon Mound (No 1) is now accepted by the courts (including
the Court of Appeal) as the relevant test to follow in questions of remoteness.
◦ Indian courts have accepted the test of reasonable foreseeability as laid down in the Wagon mound’s case
The ‘egg-shell skull’ rule
◦ If the type of injury is foreseeable, but the severity of the injury is not, due to some pre-existing special
condition on the part of the claimant, then the defendant remains liable for all the losses.
◦ In essence, the ‘egg-shell skull’ rule means that defendants must take their victims as they find them.
 CAUSATION AND REMOTENESS OF DAMAGE

◦ Smith v. Leech Brain & Co Ltd [1962] 2 QB 405 (CA)

◦ Concerning: remoteness; the ‘egg-shell skull’ rule
◦ Facts: The claimant was splashed by molten metal as a result of his employer’s negligence and
suffered a burn to his lip. This burn triggered cancer, from which the claimant died. The
claimant’s lip was pre-malignant at the time of the incident.
◦ Legal principle: Some form of harm from the burn was foreseeable although the particular type
of harm in the particular circumstances was not. However, despite the fact that death from cancer
was not a foreseeable consequence of the burn, the employers remained liable in negligence for
the full extent of the damage.
 DEFENCES OF NEGLIGENCE

◦ Contributory Negligence
◦ A doctrine of common law that if a person was injured in part due to his/her own negligence (his/her negligence
"contributed" to the accident), the injured party would not be entitled to collect any damages (money) from another
party who supposedly caused the accident. Under this rule, a badly injured person who was only slightly negligent
could not win in court against a very negligent defendant.
◦ A car driver or passenger who does not wear a seat belt.
◦ If the harm is suffered by the plaintiff not solely due to the negligence of the defendant but also due to the
negligence of the plaintiff . Cases are not rare where accident take place by negligence of the persons suffering the
injury and some other person.
◦ A is driving a car on a road on the wrongside, B is driving a car on the same road to the opposite direction at a very
high speed. B sees the car of A from a distance but neither stops the car nor lessens the speed . He strikes against
A’s car and is injured . Here A and B both were negligent .B has suffered injury not solely due to A’s negligence.
◦ At common law it is complete defence if the defendant proves that the plaintiff was guilty of contributory
negligence.
 DEFENCES OF NEGLIGENCE

To establish contributory negligence defendant must prove

a) That the injury of which the plaintiff complains results from the particular risk to which the negligence of
the plaintiff exposed of him.
b) That the negligence of the plaintiff contributed to his injury
C) That there was fault or negligence on the part of the plaintiff
 DEFENCES OF NEGLIGENCE

◦ That the injury of which the plaintiff complains results from the particular risk to which the negligence of the
plaintiff exposed of him:
◦ It is requirement which may be compared with rule that the plaintiff in action based on negligence ,must prove that
the risk which is fact materialises is the one which the defendant was under a duty to guard against. Here the
defendant must show that the harm sustained by the plaintiff belongs to the general class of perils to which he
subjected to himself by his negligent conduct
Jones V Livox Quires Ltd ( 1995)
◦ The claimant worked in the defendant’s quarry. One lunch break he hitched a lift back to the canteen by standing
on the tow bar of a traxcavator. The driver of the traxcavator was unaware that the claimant had jumped on the
back and it was against company rules to stand on the back of the traxcavators. Unfortunately, a dumper truck,
driven recklessly by another employee, crashed into the back of the traxcavator crushing the claimant’s legs.
Consequently, the claimant had to have his legs amputated.
◦ Held:
◦ The defendant was liable, but the claimant was held to be 1/5 to blame under the Law Reform (Contributory
Negligence) Act 1945. He had acted against orders and exposed himself to danger.
 DEFENCES OF NEGLIGENCE

◦ The negligence was contributory

This brings out the aspect of the defence of the contributory negligence which calls for the most careful exemption
Last Opportunity rule
◦ According to this rule, when two persons are negligent, that one of them, who had the later opportunity of avoiding
the accident by taking ordinary care should be liable for the loss. It means that if the defendant is negligent and the
plaintiff having a later opportunity to avoid consequences of the negligence of the defendant, does not observe
ordinary care, he cannot make the defendant liable for that. Similarly, if the last opportunity to avoid the accident is
with the defendant, he will be liable for the whole of the loss to the plaintiff.
◦ Deven V Mann( 1842)
The plaintiff negligently left his donkey fettered by its forefeet on a highway .The defendant drove his wagon and
horses at high speed against it and killed it. Had he used proper care the defendant could have avoided the accident,
but he was driving too fast . It was held that notwithstanding his own negligence the plaintiff could recover damage
because the defendant could still have avoided the consequences of that negligence. The contributory conduct must
constitute what the law regards as the substantial factor in producing the harm.
 DEFENCES OF NEGLIGENCE

Plaintiff’s Negligence:

Clayards V Detnick
◦ In this case plaintiff had to take his horse out of stable through a narrow lane to a main road. The defendant cut a
trench in that lane and heaped gravel on one side of it. One day when plaintiff was taking his horse through the
lane, it slipped from the gravel and fell into the trench and was killed, it was held that the plaintiff acted as a man of
ordinary prudence the plaintiff was not bound to abstain from pursuing his livelihood because there was some
danger.
Doctrine of Alternative danger :
◦ There may be certain circumstances when the plaintiff is justified in taking some risk where some dangerous
situation has been created by the defendant.
◦ The plaintiff might become nervous by a dangerous situation created by the defendant and to save his person or
property, he may take an alternative risk.
◦ If in doing so, the plaintiff suffered any damage, he will be entitled to recover from the defendant.
 DEFENCES OF NEGLIGENCE

Jones v. Boyce (1816)

The plaintiff was a passenger of defendant’s coach. The coach was driven so negligently that the plaintiff
jumped off the bus fearing an accident and broke his leg. It was held that the plaintiff would be entitled to
recover.
Shyam Sunder v. State of Rajasthan (1974)
Due to the negligence on the part of the defendants, a truck belonging to them caught fire. One of the
occupants, Navneetlal, jumped out to save himself from the fire, be struck against a stone lying by the roadside
and died. The defendants were held liable.
 DEFENCES OF NEGLIGENCE

Plaintiff ’s Negligence a bar to his action

Plaintiff ’s negligence would bar his remedy in two ways:
a) Where the negligence of the plaintiff is subsequent and separate from it.
b) Where the defendant could not avoid the accident
Dowell V General Navigation Company (1842)
◦ The plaintiff sailing ship withdrew the light and collided with the ship of the defendant. It was held that the
defendant’s steamer could not stop when the ship was seen because of the short distance so the plaintiff was
not entitled to any damage
 DEFENCES OF NEGLIGENCE
◦ Volenti non fit injuria (To a willing person, injury is not done)
◦ That one who knowingly and voluntarily consents to and takes on a risk.
◦ ‘To one who volunteers, no harm is done’
◦ By participating in a potentially dangerous sport, such as motor racing or skiing can not ask for
compensation for the damage or injury resulting from it.
The requirement of the defence are thus:
◦ A voluntary agreement
◦ Made in full knowledge of the nature and extent of the risk
 DEFENCES OF NEGLIGENCE

Nettleship V Weston [1971] 3 WLR 370 Lord Denning :

◦ "Knowledge of the risk of injury is not enough. Nothing will suffice short of an agreement to waive any claim for negligence. The
plaintiff must agree expressly or impliedly to waive any claim for any injury that may befall him due to the lack of reasonable care
by the defendant: or more accurately due to the failure by the defendant to measure up to the duty of care which the law requires
of him".
Consent :
◦ In order to maintain the defence, the defendant must show that the plaintiff has consented to the risk and has agreed to absolve
the defendant from the liability of the consequences. Consent in this sense means the agreement of the plaintiff, express or implied
to exempt the defendant from the duty of care which he would otherwise have been required by the law to take.
Voluntary act:
◦ Not only must the plaintiff consent to the risk but also must take the risk voluntarily and freely. For the purpose of the rule a man
can not said to be truly willing unless he is in a position to choose freely, and freedom of choice predicates not only a full
knowledge of the circumstances on which the exercise of choice is conditioned so that he may be able to choose wisely but the
absence from his mind of any felling of constraint so that nothing shall interfere with the freedom of his will.
 DEFENCES OF NEGLIGENCE

Burden of proof:
The burden of proof of negligence rests on the plaintiff
◦ The plaintiff ’s wife having safely crossed in front of the defendant’s omnibus was
startled by another carriage and ran back. The driver of omnibus had seen her
pass on the pervious occasion and then turned to the conductor, so that he did
not see her return in time, to break and avoid the accident the woman was run
over by the omnibus. The omnibus was neither on the wrong side nor at high
speed. It was going to moderate speed. In this case there was no evidence of
negligence on the part of the defendant.
 DEFENCES OF NEGLIGENCE

◦ Ex turpi causa non oritur actio: A plaintiff will be unable to pursue legal remedy if it arises in
connection with his own illegal act.
◦ An example is an injury suffered by a passenger in a stolen car, which that passenger knew to be
stolen and was a free participant in the joyriding. If a vehicle crashes injuring the passenger, there
may be no action in tort against the driver under the ex turpi causa non oritur actio principle.
◦ This is a legal doctrine which states that a claimant will be unable to pursue a cause of action if
it arises in connection with his own illegal act. Particularly relevant in the law of contract, tort
and trusts, ex turpi causa is also known as the "illegality defence", since a defendant may plead that
even though, for instance, he broke a contract, conducted himself negligently or broke an
equitable duty, nevertheless a claimant by reason of her own illegality cannot sue
 DEFENCES OF NEGLIGENCE

◦ Rescue cases (Volenti non fit injuria)

The defence of Volenti non fit injuria is inapplicable in the rescue cases
◦ If the plaintiff voluntarily takes a risk to rescue somebody from the danger created by the wrongful act of the
defendant
◦ He will have right to bring an action for damages against the defendant
◦ The Doctrine of assumption of risk does not apply where the plaintiff has under an emergency caused by the
defendant’s wrongful misconduct, Consciously and deliberatively, Consciously and deliberatively faced a risk,
even death to rescue another from imminent danger of personal injury.
 DEFENCES OF NEGLIGENCE

◦ Haynes V Harwood ( 1995) 1 KB 146

◦ In this case the defendant’s servant had left a horse van unattended in a crowded street.
◦ A boy threw a stone on the horses, and they bolted and started running without the driver the causing danger
to woman and children on the road.
◦ The plaintiff a police constable, who was on duty inside a nearby police station saw that the persons were in
grave danger, ran out and stopped the horses and in doing so he was seriously injured.
◦ He brought an action against the defendant for damages.
◦ The defendant contended that since the plaintiff had voluntarily taken the risk the maxim Volienti non fit
injuria will apply. And he will be not entitled to damages.
◦ But the court held that in Rescue cases the maxim was not applicable, and the defendant were liable.