NEGLIGENCE

• 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 if 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.

• The definition of negligence 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 the former’s conduct within the scope of the duty; (2) breach of the said duty and (3) consequential damage.

• The cardinal principle of liability is that the party complained of should owe to the party complaining a duty to take care, and that the party complaining should be able to prove that he has suffered damage in consequence of a breach of that duty.

• The duty of care is to avoid acts and omissions which one can reasonably foresee would be likely to injure another. This is the principle of foreseeability. But this duty is not owed to everyone who is likely to be injured but only to persons who are so closely and directly affected by one’s act that it is reasonable for one to have them in contemplation. This is the principle of proximity ‘which refers to such a relation between the parties as renders it just and reasonable that liability in negligence may be imposed. It also needs to be seen that policy considerations do not negative the existence of duty. If the first two conditions are satisfied, policy considerations would rarely, in a limited class of cases, negative the existence of duty e.g. when public policy requires that there should be no liability. A policy to limit the duty must be justified by cogent and readily intelligible considerations.

• Breach of Duty: Has the defendant omitted to do something which a reasonable and prudent man, guided by those considerations which ordinarily regulate the conduct of human affairs would have done, or has he done something which a reasonable and prudent would not have done? The standard by which to determine whether a person has been guilty of negligence is the conduct of a prudent man in the particular situation; the amount of care, skill, diligence or the like, varying according to the particular case.

• A man who traverses a crowded thoroughfare with edged tools, or bars of iron, must take special care that he does not cut or bruise others with the thing he carries. Such a person would be bound to keep a better look-out than the man who merely carries an umbrella; and the person who carries an umbrella would be bound to take more care in walking with it than a person who has nothing at all in his hands.

PERSONS PROFESSING TO HAVE GREATER SKILLS

• When it is evident that persons hold themselves out to be persons of skill, they are bound to exercise skill. It is not enough that the defendants have acted bona fide and to the best of their skill and judgment.

• The practice of a profession, art, or calling, which, from its nature, demands some special skill, ability and experience, carries with it a representation that the person practicing or exercising it possesses, to a reasonable extent, the amount of skill, ability and experience which it demands. His duty is to use such care as would be used by others in the same profession. The duty to take reasonable care is independent of contract.

• Directors of a company ought to show more than ordinary care towards the shareholders, for they are persons holding themselves out as capable of directing complicated affairs and inviting persons to trust their money to the company which they profess to direct. They are, unlike trustees, who undertake irksome duties for no pay or advantage, for they are always either paid or deriving some benefit or advantage from their position. They must show diligence which good men of business are accustomed to show.

• Every person who enters a learned profession undertakes to bring to the exercise of it a reasonable degree of care and skill. A surgeon does not undertake that he will perform a cure; nor does he undertake to use the highest possible degree of skill, as there may be persons of higher education and greater advantages than himself; but he undertakes to bring a fair, reasonable and competent degree of skill; and in an action against him by a patient, the question is whether the injury complained of must be referred to the want of a proper degree of skill and care in the defendant or not.

• A doctor when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give and a duty of care in the administration of that treatment. A breach of any of these duties gives a right of action for negligence to the patient.

• The doctor must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.

• The doctor cannot lawfully operate on adult persons of sound mind or give them any other treatment involving the application of physical force without their consent for otherwise he would be liable for the tort of trespass. But when a patient is incapable, for one reason or another, of giving his consent, a doctor can lawfully operate upon or give other treatment provided that the operation or other treatment concerned is in the best interests of the patient if, but only if, it is carried out in order either to save his life or to ensure improvement or prevent deterioration in his physical or mental health. The test here also in determining liability would be whether the doctor acted in accordance with the practice accepted at the time be responsible body of medical opinion skilled in the particular form of treatment. Prior consent or approval of the court for giving the treatment is not necessary.

• But in case of a patient of unsound mind, the court may entertain a petition for declaration that a proposed operation or treatment on the patient may be lawfully performed.

• With respect to the money placed in their hands by their customers for the ordinary purposes of banking, bankers hold themselves out as persons worthy of trust, and as persons of skill. Their duty, in respect of paying their customer’s cheques, is to honor them to any amount not exceeding the credit balance due to the customer from the banker at any material time. A failure to do so constitutes negligence and the bankers are liable in damages, which may include damages for injury to the credit of the customer.

• A person who owns or is in possession or control of an animal may become liable for damage caused by the animal under the common law in three ways. He may become liable under the ordinary law of torts; he may become liable without any fault when the animal is of a dangerous character or when the animal though generally not of a dangerous character is in particular of dangerous character to the defendant’s knowledge; and he may become liable for cattle trespass. When the person sets a dog to bite another person he is liable for assault and battery in the same way as if he has himself hit the person. When a person keeps pigs in a residential area, he may become liable for nuisance in the same way as if he had collected material which emitted offensive stench to the neighbors. Similarly, a person may become liable in negligence if he does not take proper care of his animal and the negligence results in injury to another.

• There are two classes of animals: (A) those that are of a dangerous character (animals ferae naturae); and (B) those not normally of a dangerous nature (animals mansutae naturae)

• If from the experience of the mankind a particular class of animals is dangerous, though individuals may be tamed, a person who keeps one of the class takes the risk of any damage it may do. Thus, a lion, a bear, a wolf, a monkey and an elephant, are regarded as savage animals. He who keeps a savage animal does so at his peril. He is bound to keep it so far under control as to prevent it indulging in its propensity and inflicting injury. If the animal escapes and hurts anyone, it is not necessary for the party injured to show that the owner knew the animal to be specifically dangerous. It is immaterial if the owner knows it to be dangerous or not.

• If the animal belongs to a class which, according to the experience of mankind, is not dangerous, and not likely to do mischief, and if the class is dealt with by mankind on that footing, a person may safely keep such an animal, unless he knows that the particular animal that he keeps is likely to do mischief. The law assumes that animals belonging to this class such as sheep, horses, oxen, camels, dogs, etc. are not of a dangerous nature, and any one keeps an animal of this kind is not liable for the damage it may do, unless he knew that it was dangerous. The knowledge of the defendant must be shown as to their propensity to do the act in question. It not being usual for dogs, cats, horses, or rams, or bulls, or camels to attack human beings, the plaintiff complaining of such injury from such animals must establish that the defendant knew they were exceptionally savage, and prone to injure mankind.

CONTRIBUTORY NEGLIGENCE

• In trying a claim arising out of death or injury caused by negligence, the court may be faced with a situation where both parties were in some respects negligent. The court is then to decide as to whose negligence caused the death or injury. There are three possible answers to such an enquiry depending upon the circumstances of the case: (1) The defendant’s negligence alone caused the death or injury; (2) The plaintiff’s negligence was solely responsible for the death or injury; and (3) The negligence of both the parties caused the death or injury.

• When the negligence of both the parties caused the death or injury, the common law rule was that the plaintiff was to fail even when the defendant was more at fault.

• In other words, if the deceased or the plaintiff’s negligence contributed in some degree to the death or injury, the defendant succeeded by pleading contributory negligence irrespective of the fact that the death or injury was largely caused by the defendant’s negligence. The defense of contributory negligence means that the deceased or the plaintiff failed to take reasonable care of his own safety which was a contributory factor to his death or injury.

• Where the negligence of the parties is contemporaneous or so nearly contemporaneous as to make it impossible to say that either could have avoided the consequences of the other’s negligence, it would be said that the negligence of both contributed to the accident.

• In cases where the negligence of both the parties contributes to the damage for which damages are claimed, the court apportions the fault and reduces the damages to the extent of the claimant’s share in the responsibility for the damage. There was a collision between a bus and a motor-cycle at a road intersection when the bus was going on the main road and the motor-cycle came from a side road. The person riding the motor-cycle was killed. In a claim for damages by the widow and children of the deceased it was found that the bus driver was negligent in not having a proper look-out while approaching the intersection and the deceased was negligent in driving at an excessive speed while coming from the side-road to the intersection. It was further held that the negligence of both was responsible for the accident but the motor-cyclist was far more to blame than the bus-driver. The responsibility was apportioned in proportion of two-third and one-third. The claimants were in this view allowed damages to the extent of one-third of what they would have got had the deceased’s negligence not contributed to his death.

• Damages would be reduced if a motor-cyclist involved in an accident and suffering a head injury did not wear a crash helmet. It may be noticed that omission to wear a helmet is not negligence contributing to the accident but only to the damage suffered in the accident. This example illustrates that for being responsible for contributory negligence the plaintiff need not be in a breach of any duty to the defendant. The question simply is whether the plaintiff or the deceased had failed to take reasonable care of his own safety which had contributed to the damage.

• But if the plaintiff has acted as other people with ordinary prudence would have acted in similar circumstances, he cannot be accused of want of care for his safety. Thus, a passenger resting his elbow on the window of a passenger bus in the country side when injured by another bus coming from the opposite direction was not held to be guilty of contributory negligence as it is a common habit of passengers of ordinary prudence while travelling in buses on the roads in country side where the traffic is not heavy to rest elbow on the window of the bus.

• The negligence of the plaintiff which can be described as contributory negligence must have causal connection with the damage suffered by him. Taking again the example of omission to wear a crash helmet by a motor cyclist involved in an accident, the omission would not amount to contributory negligence if the injury suffered by the motor-cyclist is not on the head but on his hand. Similarly, if a motor-cyclist drives without a driving license and is run down by a motor-truck the mere fact that the motor-cyclist had no driving license will not give rise to a plea of contributory negligence.

• Rescue of third person: The plaintiff’s husband saw a boy standing on a track in imminent danger from an approaching train, which had failed to give the statutory signal. To rescue the boy, the deceased rushed upon the track immediately in front of the moving train, and in that act was killed. It was held that the deceased was not guilty of contributory negligence, since a dangerous situation had been created by the negligent operation of the train, and the deceased was justified in making the effort to save the boy; provided he acted with such care a prudent person would have shown in such an emergency. The law has so high a regard for human life that it will not impute negligence to an effort to preserve it, unless the exposure is clearly rash and reckless.