S.S.

JAIN SUBODH LAW COLLEGE

YEAR 2019-2020

Contributory negligence and it’s relevance in

Criminal law

Submission To: Submitted By:

Mr. Zeeshan Hashmi YASHVARDHAN TOLANI

ASISTANT PROFESSOR Semester- 7th (B)

Roll no. - 57
 CETIFICATE

This is to Certify that Mr. Yashvardhan tolani, student of B.A.LL.B. 7 th Sem. of

S.S. Jain Subodh Law College, Mansarovar, Jaipur has completed his project on
“Contributory negligence and it’s relevance in criminal law” under the guidance of
Mr. Zeeshan Hashmi, Faculty of Law of Property at S.S. Jain Subodh Law
College.

This project is an original, independent work to the best of my knowledge and has
not been published anywhere and has been pursued solely for academic interest.

(Mr. Zeeshan Hashmi)

 ACKNOWLEDGEMENT

I take this opportunity to express our humble gratitude and personal regards to
Mr. Zeeshan Hashmi for inspiring me and guiding me during the course of this
project work and also for his cooperation and guidance from time to time during
the course of this project work on the topic.

Jaipur

10th November, 2019 (YashvardhanTolani)

 RESEARCH METHODOLOGY

Aims and Objectives:

The aim of the project is to present a detailed study of the topic “Contributory
negligence and its relevance in criminal law” forming a concrete informative
capsule of the same with an insight into its relevance in The Indian Criminal law.

Research Plan
The researchers have followed Doctrinal method.

Scope and Limitations:

In this project the researcher has tried to include different aspects pertaining to the
concept of Criminal law, Its origin and development in the world and in India.

Sources of Data:
The following secondary sources of data have been used in the project-

 Websites
 Books
 Case laws
Introduction

Negligence is both civil as well as criminal wrong. This blog will initially explain the theoretical
part of negligence followed by what people actually face in the real-life scenario. It is vital for us
to know and understand that the concept of negligence is derived out of the basic word that we
all have been subject to.

Understanding the concept of Negligence in law

So, we commence with the meaning of the word negligence which means “carelessness”. So it is
basically a situation where one person is injured or is harmed due to the carelessness of the other
person. The other person does not harm directly but due to an act that he committed negligently
is the tort of negligence committed. It is when one person owes another person, the duty of care,
which means that any other ordinary person would have taken care if he would have been there
in his place, therefore negligence is where due to the failure of one person to take care, another
person suffers harm, damage, injury or loss. Sometimes, situations arise in which there exists no
contractual relationship between two parties, neither written nor implied. These situations are
civil in nature and where there exists a contractual relationship that is where the concept of the
criminal liability arises. For example in a case where doctor is treating a patient in the surgical
room, if the patient has signed the contract where it is mentioned that the doctor will not be liable
in case of death, then there exists a contract but if the patient dies not because of the disease but
because of the negligent act that the doctor committed then it is criminal negligence.

Elements or essentials of Negligence

There are few essentials of negligence that need to be fulfilled before one can claim that
negligence has been committed. They are appended below:-

Duty of Care

This means that there exists a duty of care in everything you do. The action of a person is tested
upon whether any prudent man would have done the same in the similar circumstances, therefore
duty of care means to take reasonable care of what you are doing.
Breach of Duty of care

It is the breach of the duty of care which should be present in the negligent act, which means that
if the act is done with the reasonable care and protection as any other prudent man would do,
then there arises no question of the negligence being into question.

There must be an injury or harm caused

Now, the third important element that needs to be taken into consideration is that there needs to
be an injury, harm or loss to the person because of the breach of the duty of care on the part of
the other person. Therefore, negligent act will come to the cognizance of the court only when the
injury is caused to the person.

The injury or harm caused must be as a result of the breach of duty of care

This means that the previous act of the injury being caused is complete to be called as negligent
act when it done because of the breach of the duty to take care on the part of the other. So, it is
when the other person fails to perform his or her duty towards the other, which any other prudent
man would do in ordinary course of situation, and injury is caused to the person because of the
failure to take care of the other, negligence is said to have been committed.

Defences to Negligence

Negligence can always be an appropriate trick to target anyone, therefore, there are defences
available which prove that it is not always that the act has to be negligent. These defences are
appended below:-

Inherent Risk

So, when we talk about inherent risk, it means when the act itself is dangerous enough that it is
dangerous and any prudent man would not engage in such an act, or any other prudent man
would have done the same thing as the defendant has done, therefore in such cases the defendant
would not be liable of the negligence of which he is charged in the court.
For instance, when some dangerous animal approaches towards me, I run and while I Run, I take
the knife from your cake shop and ruin your cakes, because of which you suffer losses and
damage. So, I cannot be negligent because the animal that is running behind me is dangerous and
if I do not take the knife from your cake shop, I would have died, therefore my act of picking the
knife from your cake shop was not a negligent act and was an intentional act. The circumstance
involved an inherent danger. Therefore, I cannot be charged with negligence.

Obvious Risk

So, in this kind of defence we talk about something that is very obvious. Where the act done by
the defendant was an obvious reaction to the primary action, the defendant cannot be blamed for
negligence.

For Instance, where due to the spillage of oil, I slipped holding onto you and then you got hurt, I
will not be held liable for negligent act.

Voluntary Assumption of Risk

I see a gun-shot approaching towards me and I jump pushing you ahead of me, in that case, I
presumed that the gun-shot is coming towards me and the sudden reaction to the presumption
was me jumping at you. In that case, I will not be held liable.

Dangerous Recreational Activity

Dangerous recreational activity is when we participate in an activity for recreational purposes,

but that activity is inherently dangerous and the participation in which would be a voluntary act,
I will not be held liable for negligent act.

So, where I participate in a sea diving activity, and drown and die, the person who took me for
sea diving will not be held liable for any negligent act or my death because it was me who went
for that activity, therefore he cannot be held negligently liable for injuries caused to be or harm
caused to me.
Exclusion of Liabilities

In this what happens is that the defendant tries to modify their exposure to liability by stipulating
a reduction or even an exclusion from liability. Exclusion of liability means that the defendant
tries to maintain a relationship with the plaintiff, so as to avoid the liability on them. Therefore,
when the defendant tries to enter the premises of the plaintiff according to the will of the plaintiff
that is exclusion of liability. There lies an exception to this, i.e. when the term is used in the
broader sense, reliance cannot be placed upon it because it loses its essence.

Illegality

This defence means that there is illegality in the action done by both the plaintiff and the
defendant, which means that there exists a common action based on illegal terms and therefore,
if the plaintiff sues the defendant for causing harm negligently, then the defendant can claim that
the act itself was illegal and therefore, the suit does not stand.

For instance, when both the plaintiff and the defendant together keep a tiger to tame in their
house, and one day the defendant opens the cage and the tiger destroys the lawn, the plaintiff
cannot sue the defendant for opening the cage of the tiger, because keeping the tiger for taming
purpose or for any other purpose is illegal according to the law of the land.

Inevitable Accidents

This means that accidents which are inevitable and over which the defendant has no control of,
he cannot be sued for the same.

For instance, If I am travelling through toy train and buy a ticket from the ticket counter, and that
train gets de-railed in between because of which I get hurt. So, I cannot sue the ticket distributors
for not informing me about the derailing, even they were not aware of this inevitable accident.
Therefore, they are not liable.
Contributory Negligence

So, contributory negligence means where both the parties are involved, no one party can be
blamed for it. This means that when both the parties contribute to an action, and that action turns
the table for one of them, the other one cannot be sued, because it was both of them who
contributed for the negligence of the act and therefore, it was contributory negligence.

Now that we know what negligence means, what its essentials are, and what its defenses are, let
us get into the practical aspect of the negligence and what people really face in their daily lives.

Now, negligence can be of any type but what our blog is focusing on are the major areas where
people find themselves to be trapped. So negligence can be of criminal nature or civil nature. Let
is discuss both of them below:-

Cases of Criminal Negligence

1. When a person is driving a car and texting at the same time, and in the meanwhile
breaks someone else’s car, he is criminally negligent because the criminal laws of the
land, do not allow texting and driving.
2. Similarly, in a case where a person is drinking and driving, and kills someone on the
road, he can be held criminally negligent. The reason is that killing is a crime and
similarly drink and driving is also a crime, therefore he can be sued and held
criminally liable.
3. When a nurse in a nursing home forgets to feed the patient and the patient dies
because of the negligent act of the nurse that is when the nurse can be held criminally
liable because it is because of her criminal negligence that the patient is put forward
for a risk to life.
4. A caregiver in a hospital who is not paying attention and who provides someone with
a deadly dose of medication could be considered criminally negligent.
5. A person who is supposed to be a caretaker of the nursery and fails to take care, in lieu
to which someone takes away child of another, can be held criminally negligent.
6. A doctor who prescribes additive drugs to a patient knowing that he is allergic to it
can be held criminally negligent.
7. A doctor in lieu of making money from the services he provides, if exchanges the
lungs of a person during a surgery or leaves a tool or any hazardous substance inside
his patient’s body, is criminally negligent.
8. A parent who leaves their child of two years, at home for going to a pub can be held
criminally negligent. This is because it is their breach of duty to take care which is
exposing the child to substantial risk.
Bibliography

Books-
Ratanlal & Dhirajlal’s the Indian Penal Code
 Publisher: LexisNexis; Thirty Fifth edition (27 June 2017)
 ISBN-13: 978-8131251003

Websites/Articles-

https://blog.ipleaders.in/negligence-criminal-civil/