Introduction to Legal Negligence

Introduction to Negligence

• Negligence in everyday language means carelessness
• Legally it means failure to meet the standard of care a reasonable individual would in similar circumstances
• Individuals have a legal duty to exercise care when a failure to do so could reasonably cause injury
• Negligence is when harm is caused by failing to take sufficient precautions
• This is different from intentionally or deliberately causing harm

Definition of Negligence

• Alderson B defines negligence as the omission of a reasonable act that guides human affairs or doing something a prudent person would not
• Lord Wright defines negligence as more than careless conduct, properly implying concepts of duty, breach, and resultant damages
• Winfield says negligence is a tort where a legal duty to take care has been breached, resulting in damages
• Charlesworth and Percy says negligence is a tort where an individual fails to take care, causing damage to the complainant

Subjective Theory of Negligence

• Focuses on the defendant's state of mind
• States someone is negligent only if they meant to act carelessly or knew the risk but ignored it
• Considers the defendant's personal capacity, intelligence, and experience when determining liability
• Criticized for being unreliable due to the difficulty of proving the defendant's mindset

Objective Theory of Negligence

• Based on the reasonable person standard, rather than the defendant's subjective thoughts
• An individual is negligent if they do not take the care a reasonable person would in similar situations
• Focuses on external actions, rather than subjective intent
• Widely accepted in modern tort law

Essentials of Negligence

• To prove negligence, the plaintiff must show the following:
• The defendant owed a duty of care to the plaintiff
• The defendant breached the duty by failing to exercise necessary care and skill
• The plaintiff suffered harm as a result

Duty of Care

• A duty to take care is essential for a person to be held liable for negligence
• This duty is a legal one, not just a moral, religious or social one
• The plaintiff must prove the defendant owed them a specific legal duty of care
• In Donoghue v. Stevenson the plaintiff drank ginger beer from opaque glass containing a decomposed snail

Donoghue v. Stevenson Ruling

• The manufacturer was responsible for negligence
• Lord Atkin stated a manufacturer intends their products to reach consumers without intermediate examination
• This means they owe a duty to take reasonable care to customers, so their life or property is not at risk

Negligence & Duty of care examples

• In Rural Transport Service v. Bezlum Bibi a bus conductor invited passengers onto the roof of an overloaded bus
• A passenger died when they struck an overhanging branch
• The driver and conductor were found negligent
• The defendant is not liable if the injury to the plaintiff is not foreseeable
• In Glasgow Corpn. v. Muir, managers permitted a picnic in a tearoom
• Members of the picnic party injured children when they dropped an urn of tea
• It was determined that the managers could not have anticipated the incident and had no duty to take precautions

Establishing Negligence

• Proving foreseeability of the injury is not enough to establish negligence
• One must also show a reasonable likelihood of injury
• The duty is to guard against reasonable possibilities rather than bare ones
• In Fardon v. Harcourt, an accident was determined to be very unlikely after a dog smashed a glass panel in a car and a splinter injured the plaintiff
• The defendant was not liable
• The duty must be owed to the plaintiff, so the plantiff cannot sue even if they are injured by a defendant, when duty of care was for other people

Palsgraf v. Long Island Railroad Co. (1928)

• Established proximate cause and foreseeability principles
• Helen Palsgraf was injured by falling scales after railroad employees caused a package of fireworks to explode
• The New York Court of Appeals ruled the railroad company was not liable
• Negligence requires a duty of care toward a foreseeable plaintiff
• Railroad employees could not have foreseen the injury, so no duty of care existed toward Palsgraf

Breach of Duty

• A plaintiff must prove the defendant breached their duty of care, by not acting with the necessary care in the specific situation
• The law considers two factors when determining the standard of care:
• The importance of the object to be attained
• The magnitude of risk
• The law requires reasonable care, like a prudent man under the circumstances
• This varies based on the case

Importance of the object to be attained

• The law requires the care of a reasonable and prudent man, not greatest possible care
• The amount of care, skill, diligence vary according to the particular case
• The prudent man has acquired special skill to do the act he undertakes
• One who has not acquired that special skill is imprudent undertaking to do the act

Breach Of Duty case Example

• Latimer v. A.E.C. Ltd was a case which involved heavy rain flooding a factory with oily substances
• The floors were slippery and some oily patches remained after sawdust was applied
• The plaintiff slipped and was injured
• The defendants had acted reasonably and were not liable

Magnitude of Risk in Breach of Duty

• Required care to avoid negligence varies with the risk's obviousness
• Great danger necessitates great care to avoid foreseeable harm but slight danger needs only slight care
• Vehicle drivers should be more cautious in school zones or near vulnerable people, such as the blind, children or the elderly
• There is no absolute standard, but required care increases with risk

Breach of Statutory Duty cases

• In Kerala State Electricity Board v. Suresh Kumar, a minor boy came in contact with a sagging electric wire and was electrocuted
• The Electricity Board were in breach of statutory duty when held liable for not keeping the overhead wire 15 feet above ground
• In Glasgow Corp. v. Taylor poisonous berries grew in a public garden controlled by the corporation.
• The berries looked like cherries, a child ate and died
• There was a lack of fencing and warning sign, therefore the defendants were liable for negligence

Damages

• A defendant’s breach of duty must cause damage to the plaintiff
• The plaintiff must show the damage was not too remote of a consequence of the defendant’s negligence

Proof of Negligence (Res Ipsa Loquitur)

• It is generally up to the plaintiff to prove the defendant was negligent
• The initial burden is on the plaintiff, then the defendant can prove inevitable accident or contributory negligence
• Direct evidence isn’t necessary, as negligence can be inferred from the circumstances
• In certain cases, the plaintiff doesn't have to prove negligencem as it is is drawn from the facts

Res Ipsa Loquitur Maxim

• Presumes negligence, meaning "the thing speaks for itself"
• The plaintiff only needs to prove the accident occurred
• The defendant can disprove their negligence to avoid liability
• Key considerations:
• The Incident Would Not Normally Occur Without Negligence
• The Defendant Had Exclusive Control Over the Instrumentality that Caused the Harm
• An example is a surgical instrument being left inside a patient after an operation. If scaffolding collapses at a construction site, the company responsible would have exclusive control

Presumption of Negligence Examples

• Negligence is presumed in the following scenarios:
• A brick falls from a building and injures a passerby
• Goods in a bailee's possession are lost
• A stone is found in a bun
• A bus overturns
• Death is caused by a live broken electric wire
• In Municipal Corpn. Delhi v. Subhagwati, the collapse of a clock tower that caused multiple deaths showed legal position
• The owner of adjoining premises has a special obligation for structural safety beside the highway
• The owner is legally responsible for injury caused by disrepair, irrespective of patent or latent defects

Res Ipsa Loquitur case examples

• In Pillutla Savitri v. G. K. Kumar, principle of res ipsa loquitur was applied when portion fell on a advocate resulted his death.
• Presumed there was negligence and defendant were held liable to pay damages
• In Mrs. Aparna Dutta v. Apollo Hospital Enterprises Ltd., leaving something inside a surgery was negligencem and they were held liable to pay compensation of Rs. 5,80,000

Professional Negligence

• Includes lawyers, doctors, architects, and others with special skills
• Actions requiring special skill must be performed by someone with the proper qualifications
• A surgeon does not guarantee a cure, but must use fair, reasonable, and competent skill
• For a suit, the plaintiff must prove negligence caused their injury

Medical Negligence

• Medical negligence occurs when a doctor, nurse, hospital, or healthcare provider fail to provide adequate medical care, resulting in harm to the patient.
• To establish a claim, the patient (plaintiff) must prove:
• The doctor/hospital had a duty to provide proper medical care.
• The doctor/hospital failed to provide the expected standard of care.
• The patient suffered physical, emotional, or financial loss.
• Dr. Laxman v. Dr. Trimbak court held that a doctor when consulted by a patient owes him certain duties, including deciding whether to undertake the case, etc,., A breach of any of these duties gives a right of action for negligence to there patient

Bolam v. Friern Hospital Management Committee (1957)

• Defined the standard for medical negligence
• Mr. Bolam suffered fractures from electroconvulsive therapy (ECT)
• Muscle relaxants or restraints hadn't been used during the procedure although medical professional standard practice.
• Bolam sued the hospital, arguing the doctors failed to take precautions

Bolam v. Friern Hospital Management Committee (1957) Ruling

• The court ruled in favor of the hospital
• McNair J. established the Bolam Test: "A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical professionals skilled in that particular art."
• Doctors are not negligible since medical standard allow ECT without muscle relaxants

Bolam Test

• Used to determine medical negligence
• Assesses whether a professional's actions align with a responsible body of opinion
• Actions are not negligent if supported by a responsible group of professionals, even if others disagree

Bolitho v. City and Hackney Health Authority (1997)

• Clarified expert opinions must be logical and reasonable
• Courts should take a more critical approach and ensure opinions are defensible

Legal Negligence

• Barristers in England previously had immunity from professional negligence suits
• Overturned by the House of Lords in Arthur JS Hall &CO. v. Simons
• Barristers and solicitor advocates are now liable for negligence in England
• Section 5 of the Legal Practitioners (fees) Act, 1926 in India states no legal practitioner will be exempt from liability

Legal Profession Liability

• Professionals, including lawyers, can be liable for negligent misstatements if a special relationship of trust exists after Heldley Byrne & Co Ltd v. Heller & Partners Ltd (1964)
• Lawyers liable if reliant advise cause financial loss
• VP Shanta v Indian Medical Association (1995) principle that legal services come protection laws:
• Clients can sue deficiency in service, legal action

Contributory Negligence

• A person whose injury was contributed to his own safety cannot get damages
• According to john G. Fleming, Negligence is conduct that fails to conform to the standards required by law for safeguarding others (actionable negligence) against unreasonable risk of injury.
• Plantiff own contributes when they are guilty of contributory negligence
• Absence of safety means that it doe not mean breach of duty
• A pedestrian can be an example, who sudder strike by vehicle.
• Bus conductor who invite passanger can be anohter examlle too.
• In Yachuk v. Oliver Blis Co. Ltd, because servant told the boys for them mother was lie, then they were hele respnsabile

Common Law & Contributory Negligence

• AT common law, complete defense where negligent can not claim the defendant
• The ruling was modified and introduced "last oppunitt" or "last chance".
• If and accident happen "reasonable care" were not being take, then it can be alone liable"
• In the Daives v. Mann a wagon who too fast end up getting a donkey kill and then were get the rule applied for the accident

Rule Changes

• Changed in England to the "Negligent act" Damage for the "at fult" should be according to degree of their fault
• Contributor is in the India too but the Torts, The is a defense for exten plantiff is at fault. Then reduction will be down to 50%.

Composite Negligence

• There are person known tort-feasore when there are damages that are results of two or more people for third person damages
• Contribute is because of defendet and plainfill contribute with him, and that means for harm suffer. Third parts " composite negligence" when is from two or more and not plantif blame.
• Contribution for defendet is defense and reduce liable where the combination is defense.

Nuisance

• A tort or right is in place that will prevent interference of property
• Acts are there to prevent interference of safety and health.
• Noise and water or disease are examples of it, just electricity and gas or even smell or smoke just vibation
• Nuisance is separate from "tresspass."
• Similar with nuisance are ( i ) -phyiscal, ii- possesion, object" There are planiff need show land possesion. Even some have it can also consider continuing trespassing.

Trespass Vs Nuisance

• Trespass can be considered a wrongs because of "direct", where nuisance is a consequence
• Possession is a trssspas where enjoyment is nuisance. Creating damage is nuiance.
• Nuisance cam happen when material or object are presence

Kinds of Nuisance

• Public or Common Nuisance
• Private Nuisance or Tort of Nuisance

Public Nuisance

• Criminal for Public interest and Civil wroning in Private nuance
• Fine/offense for causing interference of publilc, structures for public way examples
• digging trench, or severe injury, e.g damages. Essential for sustaining where is damage or public tort

Special Damage Proof

• Special Damage when create a horses bad odore
• Babulnal VS Ramsin machine dust polle where it go in medical pritioner, Dust red can be proven damages from the case
• Court made rule restrain machine

Rose v. Milles

• Rose.v wrong barge that way where had expandation of spend money as it was damage
• Then that person cant get damage that other suffer, or where no compensation.

Private Nuisance or Tort

• Essential, and prove tort nuisance.
• Interfere
• Joyent damage
• damage

Unreasonable Interfere

• Damage can be property, with enjoyment planiff
• Interference if should be and eveyone put up vibarte to avoid.
• Can sue with neighbor if he radio prevent studys
• Unless not not actions.

Wrong Contining

• Constant smell or Noise are considered the a tort
• Stone / Bolton plantiff get hit where ball hit from defeandet where the action were fail
• That amount no amount for nuisance

Using Landa and Enjoyment

• (A) proerpty (B) comfort health
• Interfeer that cause the the anohter land it is wrong is well water
• Injury in Comfort, and conivence, and in mind for factfull and there serious with out woman with man. There are the "minimal" and it does take the standerd

Continued

• Sound and disturb neighbor
• Nuisnce can be constittue

In terms of damage

• Not needed trespass and when can claim the wrong tort needs the actions with 3 damage
• The the rule is "can't need prvened"

Nuicanes on highway

• Close highway when close and cause ques

Nucience Projects

• Close projecitons the in can have a damages

Defennes

• Well some where rejeciton
• Have defeneed as dicussed.

Effectal defenses

• perscription right to commit nuesnance
• and action that commit may be act.
• easement to open for wrong land by year need "without inturreptions" that are legial

Statutory Authority

• With statate in and act that in place where tort are not liable. Example railway not do any thing it set to joining by land.

Inneffectual Defense

• "Other act" Two or action indipenete is defeneted and they act a defense
• Public good or benefit to some with the damages result with rights

Shelfler V lightning CO,

• Vibration was for house The if consuc the building Would miss the benefit, and The building the rejections.

resonable care

• Defene in nuiance and sterch can for the animals. So the take prevebtiablity is liable

Plantiff to nuisance

• There be for with no refrain as apply the the is not allowed. Then it is held there too.