Principals of negligence law and apply and analyze

their relation to personal injuries compensation.

SYMBIOSIS LAW SCHOOL.

Principals of negligence law and apply and analyze their relation to personal
injuries compensation.

On,

21st January 2019

ABSTRACT
 Principals of negligence law and apply and analyze
their relation to personal injuries compensation.

INTRODUCTION:

Law as a body is essentially concerned with maintenance of social order by regulating the
conduct of individuals in the society. It embodies all those social, political and moral rules of
conduct which formed the genesis of dharma in the ancient Hindu society.

The word tort has been derived from Latin term TORTUM which means to twist. It connotes any
wrongful act or injury which is redressible by an action for damages at te instance of the person
wronged or injured. The law of torts may precisely be defined as te body of law which deals with
the liability of persons against whom an action in would lie.

NEGLIGENCE

The absence of proper care, caution and diligence; of such care, caution and diligence as under
the circumstances reasonable and ordinary prudence would require to be exercised.

In everyday life word negligence merely means carelessness. In legal sense it signifies failure to
exercise standard of care which the doer as a reasonable man should have exercised in the
circumstances.

Every person is under legal duty to take care when it was reasonably foreseeable that failure to
do so was likely to cause injury.

Essentials

1. Duty of care to the plaintiff

2. Breach of duty

3. Damage to plaintiff

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 Principals of negligence law and apply and analyze
their relation to personal injuries compensation.

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DONOGHUE V. STEVENSON

Donoghue v. Stevenson, 1932 AC 562 carried the idea further and expanded the scope of duty
saying that the duty so raised extends to your neighbour. Explaining so as to who is my
neighbour LORD ATKIN said that the answer must be “the 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”.

RES IPSA LOQUITUR

Res ipsa loquitur literally means “Thing speaks for itself”. The historical origin of the maxim res
ipsa loquitur lies in common carriers where they had to show carefulness to the plaintiff. Were
the defendant successfully proves that the incident which caused damage to the plaintiff was the
result of enviable accident or contributory negligence.

Commonly it is the duty of the plaintiff to prove the negligence of defendant but in some case the
under certain circumstances the plaintiff need not prove the negligence of the defendant but the
facts of the case themselves prove the negligence of the defendant and there is presumption of
negligence according to the maxim Res ipsa loquitur.

Conditions for application of the maxim Res Ipsa Loquitur :

1. Management or control of the defendant or his servants.

2. Accident is such as in the ordinary course of things does not happen if those who have the
management use proper care, and

3. Absence of explanation.
 Principals of negligence law and apply and analyze
their relation to personal injuries compensation.

PERSONAL INJURY

Personal injury – Physical injury inflicted to a person's body, as opposed to damage to property or
reputation.

Elements of a Negligence Claim

In order to win a negligence case, the plaintiff (the person injured) must prove the following four
elements to show that the defendant (the person allegedly at fault) acted negligently:

1. Duty - The defendant owed a legal duty to the plaintiff under the circumstances;
2. Breach - The defendant breached that legal duty by acting or failing to act in a certain
way;
3. Causation - It was the defendant's actions (or inaction) that actually caused the plaintiff's
injury; and
4. Damages - The plaintiff was harmed or injured as a result of the defendant's actions.1

Principals

https://injury.findlaw.com/accident-injury-law/proving-fault-what-is-negligence.html
 Principals of negligence law and apply and analyze
their relation to personal injuries compensation.

1. To prove whether the defendant is guilty of negligence or not, the court will decide on the
basis of the conduct of a reasonable man and much care can be expected from him in the
circumstances of the case.
2. The justification for defendant’s act may also be tested applying the principal of
foreseeability.
3. The degree of care expected from the defendant will depend on the gravity of seriousness
of the consequences of his act.
4. Generally it is the duty of the plaintiff to prove the negligence of defendant, but if the
circumstances of case are such that it isn’t possible for the plaintiff to prove the
negligence of defendant so the court may expect the defendant to prove that reasonable
care and caution was taken.
5. The motor accident cases should be decided by applying the maxim “res ipsa loquitur”
6. The defendant cannot evade his liability by his fictitious and baseless arguments.

Consumer protection act

Consumer protection act has been implemented (1986) to protect the rights of a consumer. It
protects the consumer from exploitation that business practice to make profits which in turn harm
the wellbeing of the consumer and society.

“an act to form provision for the bigger protection of shoppers, to establish a consumer
protection commission and for the functions and powers of that commission and related matters.”

Practices to be followed by business beneath client protection act

 If any is defect found the seller should remove the mentioned defects from the whole batch or
the goods affected.
 They should replace the defective product with a nondefective one and that product should be
of a similar configuration or should be same as the product purchased.

Basic rights of consumers include:

1. Right to be protected against marketing of goods and services that are hazardous to life and
property

2. Right to be informed about the quality, quantity, standard, and price of goods or services so as
to protect the consumer against unfair and adulterated trade practices.

3. Right to receive assured access, wherever possible, to a variety of goods and services at
competitive prices

4. Right to be heard and to be assured that consumers interests will receive due consideration at
appropriate forums and action shall be taken.

5. Right to seek redressal against unfair and adulterated trade practices.

6. Right to consumer education and consumer protection education.

The process of redressal is a three tier system under consumer act

1. District forum

2. State commission

3. National commission

To file the complaint:

 The complaint should be filed within two years of buying the product or using the service of
a product.
 It needs to be in writing. Letters ought to be sent by mail, hand-delivered, email, or fax. Do
not forget to take an acknowledgment
 The complaint will have to mention the name and address of the complainant and the
person/entity against whom the complaint is being filed. Copies of relevant documents must
be enclosed
 It is compulsory for the the consumer to mention details of the problem and the demand on
the company for redressal. This could be a replacement of the merchandise, removal of
 Principals of negligence law and apply and analyze
their relation to personal injuries compensation.

defect(s), refund, or compensation for expenses incurred, and for physical/mental torture.
The claims, however, need to be reasonable
 The consumer should preserve all bills, receipts, and proof of correspondence related to the
case. Avoid victimization voice mail or phone, as a result of such interactions square measure
ordinarily tough to prove
 The complaint can be in any Indian language, but it is preferred that English is used.
 It is not necessary to hire a lawyer. The main value consists of correspondence and traveling
to the patron forum for the hearing
 The consumer has to maintain a complete record of the emails and documents sent and
received.

Penalties

The consumer courts (district court, state commission, and national commission) are given
powers to enforce and implement their orders. If a defaulter doesn't seem in court despite notices
and reminders, the court may decide the matter in his absence. The forum will sentence the
defaulter to a most of 3 years' imprisonment and impose a fine of rs10,000. Forums will issue
warrants to provide defaulters in court. They can use the police and revenue departments to help
them enforce orders.

Consumer rights ought to be protected since services square measure availed supported trust and
religion, and thus, it’s a necessity to stay a check on the service suppliers for the sake of service
recipient.

Conclusion

Personal injury is widely defined although to recover compensation there must be recognizable
damage which has given rise to pain and suffering. It is also possible to pursue claims
for psychological symptoms even if these are not associated with any physical injury, although
 Principals of negligence law and apply and analyze
their relation to personal injuries compensation.

strict rules define the circumstances in which such a claim may succeed. The level of
compensation that can be recovered for a personal injury will depend upon the nature of the
injury and the losses and expenses that arise as a consequence. This is not always easy to
determine and disputes often arise. Pre-existing medical conditions may also have an impact on
the claim whilst there may be more than one potential cause for a particular condition. Expert
medical evidence will often be required to address these issues.2

References

 https://injury.findlaw.com/accident-injury-law/proving-fault-what-is-negligence.html
 law of torts consumer protection law and compensation under other statutory laws.
DR.N.V.PARANJAPE
 https://www.sintons.co.uk/personal-injury/what-personal-injury/

2
https://www.sintons.co.uk/personal-injury/what-personal-injury/