RAYAT COLLEGE OF LAW RAIL MAJRA

Name-: Sarthak

Course-: B.A. LL.b.

Semester-:1st

Section-:B

Topic-: study of tort liability for negligence

Subject-: Law of torts

Submitted to:- Mrs. Disha Mam

Date:- 26 October 2023

INTRODUCTION TO LAW OF TORTS
 A tort is a civil wrong. This may sound complicated, but

basically a tort happens when a person or company, called

a tortfeasor, violates someone’s legal rights (other than by

breaching a contract). Under tort law, the tortfeasor can be

held liable for that violation.

 Tort liability arises in a number of ways, including the tort

of negligence. This guide explains how tort law works, when

a tortfeasor can be held liable for harm and what types of

legal remedies a victim may pursue against a tortfeasor.

 Tort laws govern the rights of victims to pursue legal claims

against tortfeasors. When a victim is harmed or suffers

damages, the victim can pursue a claim in civil court under

tort laws.

 If the court finds the defendant liable under tort liability

laws, the defendant is required to compensate the victim.

In civil court, there’s no risk defendants will go to jail. The

 purpose is to determine if they committed a civil wrong

against someone and if they should be required to make

that victim whole–usually by paying monetary

compensation for damages.

 There are different legal rules that can result in a tortfeasor

being held liable for committing a tort. These include

negligence; intentional torts; vicarious liability; and strict

liability.

INTRODUCTION TO NEGLIGENCE
 It is already known that the Indian law of torts is based on the

English common law. Thus, the law relating to negligence is

adopted and modified by the courts of India on the principles

of justice, equity and good conscience. The term Negligence is

derived from the Latin word negligentia, which means ‘failing

to pick up’. In the general sense, the term negligence means

the act of being careless and in the legal sense, it signifies the

failure to exercise a standard of care which the doer as a

 reasonable man should have exercised in a particular

situation. Negligence in English law emerged as an

independent cause of action only in the 18th century. Similarly

in Indian law, the IPC, 1860 contained no provision for causing

the death of a person by negligence which was subsequently

amended in the year 1870 by inserting section 304A.

 Negligence is extremely common. The tort of negligence

occurs when a tortfeasor harms someone by failing to fulfill a

legal duty to act with the required level of care.

 In negligence claims, a victim does not have to show a

tortfeasor harmed them intentionally. Instead, they must

show:

 The tortfeasor had a duty to them. This could be the

duty of a doctor to provide professional care for a

patient or the duty of a store to offer customers a safe

environment or the duty of a driver to exercise

reasonably safe behavior on the roads.

 The tortfeasor failed to live up to the duty and was

considered negligent. In some cases, a reasonable

person standard is used, and a tortfeasor can be held

liable for failing to exercise the level of care a

hypothetical reasonable person would have. In other

circumstances, a different standard is used. For

example, in medical malpractice claims, a doctor’s acts

or omissions are compared with what a similarly-

trained medical professional would have done under

the circumstances.

 The plaintiff was damaged as a direct result of the

tortfeasor’s breached duty. The damage must have

been a direct and foreseeable consequence of the

negligent behavior.

 The plaintiff suffered compensable harm. This means

showing actual losses occurred as a result of the

negligence of the tortfeasor.

Negligence is the grounds for tort liability in many different kinds

of cases, including many car accident claims, slip-and-falls,

medical malpractice claims and other personal injury cases.

DEFINITIONS OF NEGLIGENCE
o According to Winfield and Jolowicz “Negligence is the

breach of a legal duty to take care which results in damage,

undesired by the defendant to the plaintiff.”

o Lord Wright states that “Negligence means more than

headless or careless conduct, whether in commission or

omission; it properly connotes the complex concept of duty,

breach, and damage thereby suffered by the person to

whom the duty was owed.”

o According to Charlesworth & Percy, Negligence, in current

forensic speech, negligence has three meanings. These are :

(i) a state of mind, in which it is opposed to intention; (ii)

careless conduct; and (iii) the breach of duty to take care

that is imposed by either common or statute law. All three

 meanings are applicable in different circumstances but

anyone of them does not necessarily exclude the other

meanings.

o In Blyth v. Birmingham WaterWorks Co. (1856)ALDERSON,

B. defined negligence as, negligence under Law of Torts is

the omission to do something which a reasonable man

would do, or doing something which a prudent or

reasonable man would not do.

It can be characterized in three forms-

o Nonfeasance: It means the act of failure to do something

which a person should have done. For example, failure to
carry out the repairs of an old building when it should have
been done.
o Misfeasance: It means the act of not doing an action
properly when it should have been done properly. For
example, Doing the repairs of an old building but doing so
by using very poor quality materials creating a major
probability of a collapse which injures people.
o Malfeasance: It means the act of doing something which
should not have been done in the first place itself. For
example, using products that are not allowed and
combustible to carry out the repairs of an old building,
therefore, converting the building into a firetrap leading to
an accident.
ELEMENTS OF NEGLIGENCE UNDER LAW OF TORTS
To commit the tort of negligence, there are primarily 6 main

essentials that are required. An act will be categorized as

negligence only if, all the conditions are satisfied namely –

1) Duty Of Care

It is one of the essential conditions of negligence in order to

make the person liable.

It means that every person owes, a duty of care, to another

person while performing an act. Although this duty exists in all

acts, but in negligence, the duty is legal in nature and cannot be

illegal or unlawful and also cannot be of moral, ethical or

religious nature.

In the case of Stansbele vs Troman(1948), A decorator was

engaged to carry out decorations in a house. Soon after The

decorator left the house without locking the doors or informing

anyone. During his absence, a thief entered the house and stole
some property the value of which the owner of the house

claimed from the decorator. It was held that the decorator was

liable as he was negligent in leaving the house open and failed

his duty of care.

The result is that the courts have been engaged upon an

elaborate classification of duties as they exist in respect of

property, whether real or personal, with further divisions as to

ownership, occupation or control and distinctions based on the

particular relations of the one side or the other, whether

manufacturer, salesman or landlord, customer, tenant, stranger,

and so on. In this way, it can be ascertained at any time whether

the law recognizes a duty, but only where the case can be

referred to some particular species which has been examined

and classified.”

2) The Duty must be towards the plaintiff

A duty arises when the law recognizes a relationship between

the defendant and the plaintiff and requires the defendant to act

in a certain manner toward the plaintiff. It is not sufficient that

the defendant owed a duty of care towards the plaintiff but it

must also be established which is usually determined by the

judge.

In the case of Bourhill v. Young (1943) the plaintiff who was a

fishwife got down from a tram car and while she was being

helped in putting her basket on her back, a motor-cyclist after

passing the tram collided with a motor car at a distance of 15

yards which was on the other side of the tram. The motorcyclist

died instantly and the plaintiff could not witness the accident or

the dead body since the tram was standing between her and the

place where the accident occurred. She had only heard the

sound of the collision and once the body had been removed

from the place of accident, she visited the place and saw some

blood which was left on the road. As a reaction to this incident,

she suffered a nervous shock and gave birth to a still-born child

of 8 months because of which she sued the representatives of

the deceased motorcyclist. It was held that the deceased had no

duty of care towards the litigant and therefore she could not

claim any damages from the deceased’s representatives.

The case of Donoghue v. Stevenson (1932) has evolved the

principle that we each have a duty of care to our neighbor or

someone we could reasonably expect to be affected by our acts

or omissions. It was held that, despite no contract existed

between the manufacturer and the person suffering the damage

an action for negligence could succeed since the plaintiff was

successful in her claim that hat she was entitled to a duty of care

even though the defective good i.e a bottle of ginger beer with a

snail in it was bought, not by herself, but by her friend.

3)Breach of Duty to take care

It’s not enough for a plaintiff to prove that the defendant owed

him a duty of care but he must also establish that the defendant

breached his duty to the plaintiff. A defendant breaches such a

duty by failing to exercise reasonable care in fulfilling the duty. In

other words, the breach of a duty of care means that the person

who

has an existing duty of care should act wisely and not omit or

commit any act which he has to do or not do as said in the case

of Blyth v. Birmingham Waterworks Co, (1856). In simple terms,

it means non-observance of a standard of care.

In the case of Ramesh Kumar Nayak vs Union of India(1994), The

post authorities failed to maintain the compound wall of a post

office in good condition on the collapse of which the defendant

sustained injuries. It was held that postal authorities were liable

since that had a duty to maintain the post office premises and
due to their breach of duty to do so, the collapse occurred.

Hence they were liable to pay compensation.

In the case of Municipal Corporation of Delhi v. Subhagvanti (AIR

1966)

A very old clock tower situated right in the middle of a crowded

area of Chandni Chowk suddenly collapsed thereby causing the

death of many people. The clock tower was 80 years old

although the normal life span of the clock tower should have

been 40-45 years. The clock tower was under the control of The

Municipal Corporation of Delhi and they had a duty of care

towards the citizens. By ignoring to repair the clock tower, they

had breached their duty of care toward the public and were

thereby liable

3) Damage

It is also necessary that the defendant’s breach of duty must

cause damage to the plaintiff. The plaintiff has also to show that
the damage thus caused is not too remote a consequence of the

defendant’s negligence.

Rebuttal of the presumption of negligence

The rule of res ipsa loquitur only shifts the burden of proof and

instead of the plaintiff proving negligence on the part of the

defendant, the defendant is required to disprove it. If the

defendant is able to prove that what apparently seems to be

negligence was due to some factors beyond his control, he can

escape liability.

Res ipsa loquitur

Res ipsa loquitur is a Latin phrase that means “the thing speaks

for itself.”

It is considered to be a type of circumstantial evidence which

permits the court to determine that the negligence of the

defendant led to an unusual event that subsequently caused

injury to the plaintiff. Although generally the duty to prove that

the defendant acted negligently lies upon the plaintiff but

through res ipsa loquitur, if the plaintiff presents certain

circumstantial facts, it becomes the burden of the defendant to

prove that he was not negligent.

This doctrine arose out of the case of Byrne vs Boadle(1863)

The plaintiff was walking by a warehouse on the road and

suffered injuries from a falling barrel of flour which rolled out of

a window from the second floor. At the trial, the plaintiff’s

attorney argued that the facts spoke for themselves and

demonstrated the warehouse’s negligence since no other

explanation could account for the cause of the plaintiff’s injuries.

Thus the following are the three essential requirements for the

application of this maxim-

1)The thing causing the damage must be under the control of the

defendant or his servants

2)The accident must be such as would not have happened in the

ordinary course of things without negligence.

3)There must be no evidence of the actual cause of the accident.

DEFENCES AGAINST NEGLIGENCE UNDER LAW OF

TORTS

In an action for negligence under Law of Torts following defences

are available: –

1.CONTRIBUTORY NEGLIGENCE:

When a tort or a wrongful action is committed by negligence on

the part of both , the plaintiffs and defendants, the defendants

can raise the plea of contributory negligence under Law of Torts.

It was the Common law rule that anyone who by his own

negligence contributed to the injury of which he complains

cannot maintain an action against another in respect of it.

Because, he will be considered in law to be author of his wrong.

Butterfield v. Forrester, (1809) 11 East 60;

the defendant had put a pole across a public thoroughfare in

Durby, which he had no right to do. The plaintiff was riding that

way at 8’O clock in the evening in August, when dusk was coming

on, but the obstruction was still visible from a distance of 100

yards, he was riding violently, came against the pole and fell with

the horse. It was held that the plaintiff could not claim damages

as he was also negligent.

2. ACT OF GOD OR VIS MAJOR:

Act of god refers to some natural calamity such as heavy rainfall ,

storms ,earthquakes and volcanoes. Two conditions are essential

for this defence:

1)there must be working of natural forces.

2)the occurrence must be extraordinary and not the one which

could have been anticipated.

It is such a direct, violent, sudden and irresistible act of nature as

could not, by any amount of human foresight have been

foreseen or if foreseen, could not by any amount of human care

and skill, have been resisted. Such as, storm, extraordinary fall of

rain, extraordinary high tide, earth quake, etc.

In Nichols v. Marsland, (1875) LR 10 Ex.255;

the defendant had a series of artificial lakes on his land in the

construction or maintenance of which there had been no

negligence. Owing to an exceptional heavy rain, some of the

reservoirs burst and carried away four country bridges. It was

held that, the defendant was not liable as the water escaped by

the act of God.

3.INEVITABLE ACCIDENT:
If the plaintiff has an unexpected injury owing to an unforeseen

and Inevitable event, in spite of reasonable care on the part of

the defendant, it is called inevitable accident. The defendant has

to prove that he neither intended to injure the plaintiff nor had

the means to avoid the injury by taking reasonable care. An

inevitable accident is that which could not possibly, be

prevented by the exercise of ordinary care, caution and skill. it

means accident physically unavoidable.

In Brown v. Kendal, (1859) 6 Cussing 292;

The plaintiff’s and defendant’s dogs were fighting, while the

defendant was trying to separate them, he accidentally hit the

plaintiff in his eye who was standing nearby. The injury to the

plaintiff was held to be result of inevitable accident and the

defendant was not liable.

In Holmes v. Mather, (1875) LR 10 Ex.261, 267;

a pair of horses were being driven by the groom of the

defendant on a public highway. On account of barking of a dog,

the horses started running very fast. The groom made best

possible efforts to control them but failed. The horses knocked

down the plaintiff who was seriously injured, it was held to be an

inevitable accident and the defendant was not liable.

In Stanley v. Powell, (1891) 1 QB 86;

The plaintiff and the defendant, who were members of a

shooting party, went for pheasant shooting. The defendant fired

at a pheasant, but the shot from his gun glanced off an oak tree

and injured the plaintiff. It was held that the accident was an

inevitable accident and the defendant was not liable.

Conclusion

Negligence as a tort has evolved from the English law and

accepted by the Indian law as a substantially important tort. As

discussed negligence is of two types, civil and criminal and each

has various repercussions. In order to prove that an act was

negligent, it is necessary to prove all the essentials namely duty,

breach of duty, damages and actual and proximate cause. An

important maxim regarding negligence i.e Res Ipsa Loquitur is

used by the courts when a negligent act cannot be explained.

Also, the defences in a suit for negligence can be used by the

defendant to defend himself from a suit issued by the plaintiff.

Bibliography
 https://www.google.com
 https://blog.ipleaders.in/negligence-in-the-law-of-
torts/
 Book of law of torts by Dr. R.K. Bangia
 https://www.toppr.com/guides/legal-aptitude/law-of-
ptorts/negligence-tort-law/
 https://lawbhoomi.com/negligence-under-law-of-
torts/