Mental state and conduct

In the modern law of tort, the word negligence has two  meaning. Firstly, it indicates the state of mind of a party in doing an act and secondly, it means a conduct which the law deems wrongful. It means blameworthy inadvertence in the consequences of conduct insofar as a reasonable man would have adverted to them.

    Negligence in the sense of conduct refers to the behaviour of a person who, although innocent of any intention to bring about the result in question, has failed nevertheless to act up to the standard set by law, which is usually that of a reasonable man. Recklessness is serious failure to act reasonably. When a statute, prescribes a certain standard of behaviour with a view to avoiding injury to persons, it has been said that the failure to come up to that standard is statutorily equivalent to negligence, without proof of carelessness.

    Now, negligence has become an independent, specific tort in itself. Although it is clearly a mental element, still Judges in deciding whether a man is guilty of negligent conduct or not a apply an external standard and do not take into consideration his real mental attitude at the moment of the act. Thus to determine whether a particular driver has been negligent in driving his car along the public road, or whether a doctor has been negligent in performing a particular operation, they apply an external standard of a reasonable man placed in similar circumstances. If the Judge is of opinion that a reasonable man placed in similar circumstances as the defendant would not have acted in that way and caused damage to the plaintiff, then the defendant is liable. Thus a purely external standard was applied in such cases and wrongdoers were not permitted to aver that in fact and in truth they were not negligent or careless.

Definition and essentials

Negligence as a specific tort has been defined by Winfield thus: "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. Thus its ingredients are: (1) A legal duty on the part of A towards B to exercise care in such conduct towards A as falls within the scope of the duty. (2) Breach of the duty. (3) Consequential damage to B." "Negligence is 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 reasonable and prudent man would not do". This objective theory of negligence was accepted in the leading decision of the House of Lords in Donoghue v. Stevenson, which treats negligence, where there is a duty to take care, as a specific tort in itself, and not simply  as an element in some more complex relationship or in some specialised breach of duty.

    The definition involves three constituents of negligence: (1) A legal duty to exercise due care on the part of the party complained of towards the party complaining of the former's conduct within the scope of the duty; (2) breach of the said duty , and (3) consequential damage.


Existence of duty essential

A man is entitled to be as negligent as he pleases towards the whole world if he owes no duty to it. There can be no liability where there is no prerequisite duty.

   It is very difficult to state precisely the nature and extend of the legal duty which one owes to another, the violation of which entitle one to claim damages from the other. But we can safely state that a merely moral and religious duty will not suffice. The mere fact that a man is injured by another's act gives in itself no cause of action; if the act is deliberate, the party injured will have no claim in law even though the injury is intentional, so long as the other party is merely exercising a legal right; if the act involves lack of due care, again no case of actionable negligence will arise unless the duty to be careful exists. There are cases in which, although there is a duty not to cause harm intentionally, there is no corresponding duty to take care not to cause it accidentally. The occupier of a premises is bound towards persons lawfully entering on them to take care that they are free from concealed danger but he owes no such duty to a trespasser.

    In short, it is mainly the duty of the court to decide whether, from the particular facts and circumstances of a case which has come up for litigation before it, a duty to take care can be inferred from one party to the other. The grounds of action may be as various and manifold as human errancy and the conceptions of legal responsibility may develop in adaption to altering social conditions and standards. The criterion of judgment must adjust and adapt itself to the changing circumstances of life. The categories of negligence are never closed.

Scope of neighbourly duty

The scope of neighbourly duty in law was thus expounded by Lord Atkin in the landmarks case on negligence, Donoghue v. Stevenson:

"You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injury your neighbour. Who them 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 contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."

In this case a manufacturer of ginger-beer was held liable to the consumer of it for injury caused to her by drinking the beer which unfortunately contained decomposed remains of a snail on account of negligence in the factory. The manufacturer was held to be under a general duty to the consumer of the manufactured product to see that it did not contain any noxious matter and he was held liable for the breach of that duty.

     In East Suffolk Rivers Catchment Board v. Kent,  the House of Lords laid down that there is no authority for the proposition that a public body, which owes no duty to render any service, may become liable at the suit of an individual if once it takes upon itself to render some service, for failing to render reasonably adequate and efficient service. Lord Atkin dissented and said: "Every person, whether discharging a public duty or not, is under a common law obligation to some person in some circumstances to conduct himself with reasonable care so as not to injure those who are likely to be affected by his want of care."

      It is only "in some circumstances" that one is bound to conduct oneself with reasonable care so as not to injure those who are likely to be affected by one's want of care. In Kent case, the majority of the House of Lords held on the facts that the Board owed no duty to its neighbour. You can lawfully do many things which you know or ought to know will harm your neighbour. Duty of care was negatived in Bourhill v. Young  where a motorcyclist running against a tramcar was alleged to have caused nervous shock to a fishwife standing on the road and beyond the vision of the cyclist. She was eight months pregnant and a month later the child was stillborn. It was held that she was not within the area of potential danger and that the cyclist therefore owed no duty to her.

Risk and foreseeability factors in standard of care

There is a tendency to define the standard of care in terms of risk rather than in terms of reasonable foreseeability. In short, the concept of risk has been evolved in deciding the criterion of duty. A risk is a chance of harm to others which the party whose conduct has been called in question should have recognised. Hence negligence is conduct which falls below the standard established by the law for the protection of others against unreasonable risk of harm. There are three factors for consideration:

1.    The magnitude of the risk to which the defendant exposes other persons by his action;

2.    the importance of the object to be attained by the dangerous form of activity;

3.    the burden of adequate precautions. Duty, in other words, is measured by the scope of the risk which negligent conduct foreseeably entails.

Generally no liability would arise from omissions as opposed to acts. There is not a general duty to act positively for the benefit of others.

    The factors which are taken into account in deciding whether a duty of care exists in a novel situation not concerned with physical damage (e.g. fairness and practicability) may be relevant to the context of a clearly established duty. A privilege or liberty of yesterday may become a duty of today for the law of negligence is consistently influenced and transformed by social, economic and political considerations. What is "reasonable" varies with the circumstances.


The law also insists that a defendant can be held liable only if his act was the "proximate cause" of the loss or injury to the plaintiff. But the proximity test is not merely geographical proximity is clear from the decision in Donoghue case and other cases. Nevertheless the rigorous proximity test of the remoteness of damage as laid down in Polemis case is not required in pure cases of negligence, where it is seen whether there had been a violation of a duty, whereas in remoteness of damage, the court assumes that a tort has already been committed and the question is whether the defendant's conduct was the determinant cause of the injury. In cases where there is no such sufficient proximity between the plaintiff and the defendants, no violation of any duty to take care by the defendants can be inferred.

Breach of duty

The question whether the defendant has committed a breach of duty is to be determined by applying to his conduct the standard of a reasonable man. The degree or standard of care which the law requires is that which is reasonable in the circumstances of the particular case. The reasonable man is the ordinary prudent man of society. The highest competence or skill is not expected of him.

     Where anyone is engaged in a profession , the law expects him to posses the average amount of competence in that particular profession, trade or calling and if he fails to exercise that amount of average skill, he will be held liable for negligence. But the law does not require the highest degree of care or expert knowledge in these matters. The test of reasonableness in each particular case is always a question of fact.


Finally, the plaintiff in an action of negligence cannot succeed unless he proves that he has sustained damage as the result of the defendant's conduct. If the careless driving of a car by the defendant had not resulted in any injury to any particular person, that act by itself would not be actionable as a tort before a court of law.

Proof of negligence

Employee developing disease in successive employments

The employee was held entitled to recover against both the employers though there was no proof that while being exposed to asbestos dust, where he developed the disease  of mesothelioma.

Function of judge and jury

In all actions of negligence the burden of proof is on the plaintiff to establish the defendant's negligence. Where the trial is being held with the aid of the jury, there must be reasonable evidence to leave the case for the opinion of the jury. It is the duty of the Judge to decide first whether the evidence, produced on behalf of the plaintiff is of such weight that reasonable men might come to the conclusion that the accident was caused by the defendant's negligence. If so, the case must go to the jury, if not, judgment must be given for the defendant without the case being submitted to the jury at all.

Illustrative cases

   Cotton v. Wood.- The plaintiff's wife, after having crossed in front of the defendant's omnibus, suddenly ran back, being alarmed at the approach of another carriage from the opposite direction and was then run over by the omnibus whose driver, in the meantime, had turned round to speak to the conductor and therefore did not see the lady returning. It was held that there was no evidence of negligence to go to a jury. The driver had no reason to expect the immediate return of the pedestrian who had just crossed safely in front of the bus.

Res ipsa loquitur

Accident talks or thing speaks for itself

In cases where the accident speaks for itself, it is sufficient for the plaintiff to prove the accident and nothing more. This principle was explained by the Court of Exchequer in Scott v. London and St. Katherine Docks Co. In this case, six bags of sugar from a crane fell upon the plaintiff, a customs officer, while he was passing in front of the defendants' warehouse on the docks in the course of his duties. It was held that this constituted reasonable evidence of negligence to place the case before the jury.

    Essential requisites for the application of the doctrine are all following:

1.    the thing which causes the harm must be under the control of the defendant;

2.    while under his control an accident happens which would not in the ordinary course of things happen without negligence; and

3.    the defendant gives no explanation.

The principle of res ipsa loquitur only shifts the onus of proof, in that a prima facie case is assumed to be made out, throwing on the defendant the task of proving that he was not negligent. This does not however mean that he must prove how and why the accident happened; it is sufficient if he satisfies the court that he personally was not negligent. In Byrne v. Boadle a barrel of flour had rolled out of an open doorway of the defendant's warehouse and fallen on the plaintiff, a passer-by in the street below. It was held that this was sufficient evidence of negligence to go to a jury, without any evidence as to the manner in which the accident had happened. The plaintiff had to undergo removal of reproductive organs because of infection. The pathologist's report showed that none of the organs was ruptured due to the tube testing. This was supported by the evidence of other experts also.

   In Esso Petroleum Co. Ltd v. Southport Corpn. damage was caused to the foreshore owned by the plaintiffs (Southport Corporation) on the side of an estuary, by a deposit of oil discharged from a tanker owned by the defendant (Esso Petroleum Co. Ltd.) and piloted by the master. When approaching the estuary, in weather which was normal, the steering gear became defective and got out of control with the result that the vessel became stranded. The master, in order to keep her afloat, discharged about 400 tons of fuel oil. It was to save the vessel and the crew from grave danger that he did so. The oil-slick spread towards the foreshore of the plaintiff corporation extending over 71/2 miles and varied in thickness from one inch to three inches and in width from three feet to twenty feet at the point, amounting to one hundred feet. The plaintiffs had to  stop traffic on the foreshore and incurred great loss in removing the oil deposits.

    The defendants were held not liable by the House of Lords on the ground of res ipsa loquitur. The House of Lords held that in the absence of any specific pleading by the plaintiffs that the ship was unseaworthy, all arguments based on the ground of res ipsa loquitur are inapplicable in the case.

     The Supreme Court of India, in its decision in State of Punjab v. Modern Cultivators, held the State of Punjab liable in damages to Modern Cultivators for loss caused to the crops of the Modern Cultivators by reason of flooding of their land as result of breach in a canal belonging to the Punjab State. The court applied the principle of res ipsa loquitur. Sarkar, J. observed that as the defendant failed to produce relevant documents in its possession which would have shown how the breach occurred, negligence can be rightly inferred against the defendant. Furthermore, the rule of res ipsa loquitur applies to the case. The canal was admittedly in the management of the defendant and the canal's banks would not have been breached if those in the management had taken proper care. In such a case the rule would apply and the breach itself was held to be prima facie proof of negligence.  

    In Municipal Corpn. of Delhi v. Subhahwanti it was found that the clock tower in Delhi which collapsed causing loss of life was exclusively under the ownership and control of the municipal corporation or its servant and was 80 years old. The corporation was held liable in damages by applying the doctrine of res ipsa loquitur to those who suffered on account of the collapse.

Standard of care for determining negligence

 In Mangila v. Parasram a boy aged seven who was answering the call of nature by the side of the road was struck down by a passenger bus coming on the wrong side of the road and being rashly driven. The boy met with instantaneous death. The court held the defendants liable by applying the doctrine of res ipsa loquitur. The court laid down the following principles:

1.    The standard to determine whether a person has been guilty of negligence is the standard of care which, in the given circumstances, a reasonable man could have foreseen.

2.    The test is foreseeability.

3.    The more serious the consequences if care is not taken, the greater is the degree of care which must be exercised.

4.    While the initial burden of proof of negligence is on the claimant, barring exceptional cases, the principle of res ipsa loquitur comes into play. It is a rule of evidence and does more than cast a provisional burden on the defendant.

5.    Having regard to the local conditions prevailing in this country, when res ipsa loquitur is attracted it should be given as wide an amplitude and as long a rope as possible in its application to the case of a motor accident.

6.    The defendant cannot escape liability merely by preferring hypothetical explanations, however plausible, of the accident.

In Kumari Alka v. Union of India the High Court, by applying the doctrine of res ipsa loquitur, held that the authorities were negligent in not performing their duties. In this case a girl of six years suffered permanent disability by losing two fingers of her hand in an accident caused by the running motor of a water pump in an employee's quarters. The premises were unfenced, unguarded and unattended and the victim was too young to appreciate the real danger of interfering with a working motor.

     In Chairman-cum-Managing Director, Bihar SRTC v. Manju Bhushan Sinha the offending State transport bus had come from behind and had dashed against the rickshaw and the impact was so great that the deceased was thrown to a distance of more than 10 feet. It was held that the bus was driven rashly and negligently and the principle of res ipsa loquitur would be very much applicable to the facts of the case. 



Rules of contributory negligence

The rule of contributory negligence deduced from decided cases may be stated thus: The ultimate question is: "Who caused the accident?"

1.    If it were the defendant, the plaintiff can recover in spite of his own negligence. (Davies v. Mann and Radhey case.)

2.    If it were the plaintiff, he cannot recover in spite of the defendant's negligence. (Butterfield v. Forrester.)

3.    If it were both plaintiff and the defendant, the plaintiff cannot recover. (a) Admiralty Commissioner v. S.S. Volute (b) Eurymedon case (c) In England the statute governing contributory negligence provides for apportionment of liability and in India, the apportionment principle is accepted by courts on the basis of equality.  

In the former case, Admiralty Commissioner v. S.S. Volute, a collision occurred between the Radstock, a destroyer, and the Volute, a merchant ship under convoy. The collision was due to the fault of the Volute in changing her course without giving the proper whistle signal, and to the immediately subsequent fault of the Radstock in increasing her speed with knowledge of the danger caused by the Volute's change of course. It was held that both ships were to blame, although the last opportunity of avoiding the collision was with Radstock. There was not sufficient separation of time, place or circumstance between the negligent navigation of the Radstock  and that of the Volute to make it right to treat the negligence on board the Radstock as the sole cause of the collision.

     The law imposes on a plaintiff the obligation to take all reasonable steps to mitigate the evil; it debars him from claiming any part of the damage which was caused due to his own neglect or lapses. In Marcroft v. Scruttons Ltd. the plaintiff fell down a ship's hatch. The hurt appeared to be not very serious. But he subsequently developed neurosis which rendered him a "nervous wreck". He was advised by a psychiatrist to attend a hospital for treatment. This was not acted upon. The court held that the refusal was unreasonable and it was proper to assess the damages upon the basis that loss subsequent to the refusal must fall upon the plaintiff  himself.

      In Union of India v. Lalman Badri Prasad there was a collision between a railway engine and a truck at a level- crossing resulting in the death of the truck-driver. The latter was found driving with a licence to which he was not entitled being underage, not satisfying the age-limit required by the Motor Vehicles Act. He was hence held guilty of rash driving and contributory negligence. But the railway authorities were found negligent in not keeping the level-crossing properly manned or by placing any caution board for the users of the road. In the action that was filed by the legal representatives of the deceased, claiming damages from the railway company under the Fatal Accidents Act, the court accepting the principle of contributory negligence apportioned liability for the incident equally on the deceased and the company and the latter were directed to pay only Rs. 7250 as damages when the total damages were estimated at Rs. 14,500.

    Damages awarded for head injuries to a motorcyclist were reduced by 15 per cent for not wearing a crash helmet in O'Connel v. Jackson  and for not using a seat-belt by the car driver in Froom v. Butcher.

Different types of negligence: Composite and statutory

In Union of India v. Hindustan Lever Ltd., it was stated by the court that " When the negligence is a breach of duty to take the care imposed by a statute or law it may be called statutory negligence, and when it is breach of duty to make care arising out of circumstances of a particular case, it may be termed as actionable negligence."

     Contributory negligence is an expression which implies that the person who has suffered damages is also guilty of some negligence and has contributed towards the damages. In such a case the court has power to apportion the loss between the parties, who can be held guilty of negligence by act or omission on their part, as it deems just and equitable. On the other hand, composite negligence would arise when negligent acts or omissions of two or more persons have caused damages to a third person. In such a case, the said third person does not contribute to the mishap or to the damages and, as such, he is entitled to sue all or any one of the negligent persons for damages. It is no concern of his whether there is any duty of contribution or indemnity as between the negligent persons.

      In the case of statutory negligence, the same having arisen out of a breach of a statutory obligation, neither the defence of contributory negligence nor that of composite negligence can be open or available to the wrongdoer.

     When a railway line crosses a public carriage road, the authorities owning the Railways are under obligation to erect and maintain good and sufficient gates across the road and must employ proper persons to man the same, so as to keep it open for the traffic and the vehicles to pass when no train is likely to pass and to shut the same when a train is approaching, in accordance with the provisions of the Railways Act. Neglect of this statutory obligation is statutory negligence.

    Where each of the two parties to an accident has contributed to it by its negligence, party, though itself negligent, is entitled to claim damages from the other party. The extent of damages will be in proportion to the negligence of the other party with respect to the combined negligence of both parties. In Pitts v. Hunt the parties were engaged in a joint illegal enterprise and it was held that no duty of care was owed. Had this not been so, their causative contributions would have been equal and the correct apportionment would have been 50 per cent.