KALINGA UNIVERSITY

SYNOPSIS ON:
Negligence in India legal dimensions and judicial perspective

SUBMISSION BY:
Rakhi Pandey
Mastar Of Law 4th Sem
Session - Jan - June
2023
Enrollment No:- 21071159574632.
Roll No.:- 22123725
 INDEX

S.NO CONTENT PAGE NO

INTRODUCTION
ABSTRACT
1
1.1 Negligence: Conceptual Study from Criminal Law
Perspective

2 REVIEW OF LITERATURE

METHOD OF STUDY
3.1 Objectives of the Study
3 3.2 Introduction to the Case-Study Method
3.3 Hypothesis of research
3.4 Different Types of Case Studies

4 NEGLIGENCE: LEGAL ELEMENTS

5 EMERGIMG DIMENSIONS OF NEGLIGENCE

LEGAL FRAMEWORK OF NEGLIGENCE &

6
JUDICIAL TREND IN INDIA

7 DISCUSSION

8 SUGGESTIONS & CONCLUSION

BIBILOGRAPHY
 ABSTRACT

This thesis is an attempt to analyze the conceptual perspective pertaining to the

evolution and development of negligence in both as a model of tort and criminal law.
The overwhelming assent of the thesis is on tort of negligence and the system under
review is common law. It was not possible to analy.te the entirety of the wide sweep
of civil and criminal negligence; hence both were synthesized and then compared. In
common law the development of the concept of negligence alternated between
expansionary and conservative stages. At one time the common law seeks a vehicle
for new flexible. remedies and obligations, and at another, it seeks the certainty of
fixed Tilles. This process is incessant as for every swing in one direction, at a certain
point on the pendulum, there will be a reaction. Th .s thesis explores the pathology of
these development through such selected models, including the symptoms exhibited
by the initial ad hoc characteristics of the birth of a principle of negligence, the
maturing phase of such principles created by the emergence of categories of liability,
the abstraction. from such categories of a general principle, and either the over
extension of such general principle, or the narrowing of such general principle
leading to its ultimate demise as a flexible vehicle of liability. In the event of the
death of a principle of negligence, as a flexible vehicle of liabi\ity, the common law
will seek to find or create another avenue of flexible remedy. The thesis seeks to
investigate the reasons or causes of such development, bu is content to ex8mine
the symptoms exhibited by the various phases of such development. The initial
two chapters summarize the general perspective of negligence and existing literature
available on the subject and briefly outline the templates of the concept created by the
early origins of the common law. The modem pragmatic case-by-case negligence
formula, based on the open-ended elements of 'duty of care', 'breach of duty' and
'causation and remoteness', illustrate the problems caused by a remedy or
obligation whose conceptualization is vague and uncertain. The common law itself
until 1875, apart from equity, had the ability through the action on the case to
provide the common law with flexibility when needed. The closest that the common
law in modem times has come to emulating the action on the case has been the
remedial use of the negligence mechanism. While the action on the case did not
survive the procedural reforms of the
19th century, it had developed general rules that limited the scope of such open-ended
action. These general over-arching rules e important to a study of modem
negligence liability. This thesis will endeavour to show that the modem open-ended
negligence formula should be limited by comparable general rules to resist the
inevitable pressure upon it to define its fault component or duty mechanism too
narrowly. Synthesis by use of the tool of comparative legal ;,ystems show the constant
tension in the common law between the quest for certainty through rules, on the one
hand, and the ability to administer individual justice, despitr, tqe presence of a general
rule, on the other. The third chapter deals with the empirical .r-11ethodology adopted for
investigation the issue and the constraints faced and limitations adhered by the
research scholar·while preparing the thesis. The fourth chapter examines the notional
perspective of the concept of negligence and overwhelming influence of changing
social values, development in science and technology in formulating the borders of
negligence. It is a doctrinal inquest of the notional perspective of negligence. The fifth
chapter deals with the emerging dimensions of negligence i.e. Multi National
Corporation and Mass Tort; Product liability; Professional negligence and State
liability. In this chapter, the research scholar has adopted a comparative methodology
to unearth the layout and theory of the above mentioned emerging dimensions of
negligence. The sixth chapter exclusively deals with the judicial attitude of Indian
Courts pertaining to negligence, as well as emergence of i:,,dependent perspective on
statutory negligence i.e. concept of absolute liability in India. The last two chapters
deal with the summing up the whole perspective on negligence as well as future
challenges against a backdrop of the perspective of the common law, which treats it as
a dynamic- constantly moving instrument that reflects the policy moods of
contemporary society. Such a view of the law of negligence is not one-dimensional
and may provide answers as to the past and present evolution of the conception and
may give clues as to its future direction. The law is stated as at the 1st day of April
2009.

2
 CHAPTER-I
INTRODUCTION

"Thefimdal1}ental duty of a man is to see others life and pleasure

as his own, he should not do any thing which is in his benefit but
causes harm to another. Whether he does it knowingly or
unknowingly he will be responsible for any wrong caused by him"
-YAJURVEDA [Chapter-40, Mantra-6]

As Aristotle once observed, political justice can exist only "among people
who are associated in a common life with a view to independence, and who enjoy
1
freedom and equality." This seemingly simple statement locates the three core
values of liberal-justice: freedom, equality and by implication, security. Freedom
is a state of choice and action which gives ·individuals the power of autonomous
will and self-determination, and with it, the rights and responsibilities of moral
agency. Security is merely a form of negative freedom-specifically the freedom
to be left alone by others. It reinforces the power of self-determination by
protecting people from outside incursion. Equality stands on different ground.
Although it applies to freedom, it is not, in itself, an aspect of freedom. Instead, it
guarantees that all people enjoy freedom, thus establishing their basic dignity and
worth as moral agents, and sets criteria for coordinating freedoms among
individuals in a political association. Of course, these values are not always
harmonious. They can and often do come.into conflict i.e. one person's exercise
of freedom is frequently a threat to the security of someone else. Likewise,
one's assertion of equality may operate to limit the freedom of those with
extraordinary powers or needs. There steps in the tort law, with the stated
objective to determine the mechanism- how to resolve these conflicts. Tort
law is a socio-legal mechanism which mediates the relationships between
citizens in conflict and between those citizens and the state. The objective of
tort law is primarily to compensate the victim, deter others as well as the
defendant from repeating/ committing the same again, vindicate the legal right
of the victim, distributes the loss suffered as a result of wrongful activities and
punishes albeit, in a limited manner, the wrongdoer. To incur liability
under tort law, the victim and the plaintiff necessarily need not have a formal
legal relationship. Unlike a contractual

Aristotle, The Nicomaclzean Ethics 165 (Translated by J.E.C. Weldon. Prometheus Books 1987).
3
relationship- the spectrum of tort law is very wide in its amplitude i.e. it imposes
liability-strict or otherwise- between unrelated individuals in a given society for
actions arising out of their normal societal inter course.

Tort, like other concepts in law, suffers from definitional inadequacy. It is

not as if no attempr has ever been made to define tort, but each definition has .
2
suffered from inadequacies, which are too pronounced to ignore. Salmond
defined tort as "a civil wrong for which the remedy is a common law action for
unliquidated damages, and which is not exclusively the breach of contract or the
3
breach of trust or other mereiy equitable obligation". While Winfield defined tort
in terms of tortuous liabilities; tortuous liability arises from a breach of a duty
primarily fixed by law; this duty is towards persons in generally and its breach is
redressible by an action for unliquidated damages. To put it more precisely a
wrongful act, a legal damage and a legal remedy are the basic ideas on which the
edifice of tort law stands. Negligence constitutes the basis ofliability in tort law.

The tort of negligence forms one of the most dynamic and rapidly
changing areas of liability in the modem common law. Its expansion since the
nineteenth century reflects the pressures which the rise of an industrial and urban
society has brought to bear upon the traditional categories of legal redress for
4
interference with protected interests. The growth · and increasing sophistication of
5
insurance have also contributed to this expansion. A doctrinal examination of
negligence must not lose sight of this wider social and economic context within
which the tort has developed, which is reflected in fluidity of the central legal
concepts and the courts' ever-increasing recourse to 'policy' as an explanation for
their decision.

The intellectual challenge for providing an all encompassing and

comprehensive definition to the term "negligence" is well documented. Probably
the first attempt to define negligence was in Blyth v. Birmingham Waterworks Co6

2 W. T. S. Stallybrass, Salmond on The Law ofTorts. 8th Edn . London: Sweet and Maxwell., at p.J3
3 W Y H Rogers , Winfield and JololVicz on Tort, 17th Edn Sweet & Maxwell, UK at p. ll
4 J. G. Fleming, "Remoteness and Duty: the Col/lrol Devices in Liability for Negligence" ( 1953)
31 Can. BR471,
5 M . Davies, "The End of the Affair: Duty of Care and Liability Insurance" ( 1989) 9 Leg. Stud.
967
6 B vth v. Company Proprietors of the Birmingham Water Works 1856, I l Ex. Ch. 78 I

4
wherein Alderson, B. described negligence as "the omission to do something
which are a reasonable man, guided upon those considerations which ordinarily
regulate the conduct of human affairs would do or doing something which a
prudent and reasonable man would not do". This is the definition of negligence
most often quoted but Beven in his well-known work on Negligence considers that
though as a description it is invaluable the formula is too wide for a definition.
Pollock in his book on Torts, states with reference to this definition that "We have
always to remember that negligence will not be a ground of legal liability unless
the party whose conduct is in question is already in a situation that brings him
under the duty oftaking care".

"The law takes no cognizance of carelessness in the abstract. It concerns

itself with carelessness only where there is a duty to take care and where failure in
that duty has caused damage. In such circumstances carelessness assumes the
legal quality of negligence and entails the consequences in law of negligence.
Circumstances which give rise to this duty to take care are the subject of
normative enquiry. In the daily contacts of s cial and business life, human beings
·are thrown into or place themselves in an infinite variety of relations with their
fellows: and the law can refer only to the standard of the reasonable man in order
to determine whether any particular relation gives rise to a duty to take · care as
between those who stand in that relation to each other. The grounds of action may
be as various and manifold as human error; and the conception of legal
responsibility may develop in adaptation to altering social conditions and
standards. The criterion of judgment must adjust and adapt itself to the changing
circumstances of life. The categories of negligence are never closed. 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. Where
there is room for diversity of view, it is in determining what circumstances will
establish such a relationship between the parties as to give rise on the one side to
a duty to take care and on the other side to a right to have care taken".-
7
Observed Lord Macmillan in Donoghue v. Stevenson

7 Donoghu e v. Stevenson [ 1932] All ER Rep I; I1932] AC

562;

5
 In Salsbury's Laws of Englancf under the subheading "meaning of
negligence" appears . the following passage:
"Negligence is a specific tort and in any given circumstances is the failure
to exercise that care which the circumstances demand. What amounts to
negligence depends on the facts of each particular case and the categories
of negligence are never closed. It may consist in omitting to do something
which ought to be done or in doing something which ought to be done
either in a different manner or not at all ...... The degree of care required in
the particular case depends on the accompanying circumstances and may
. vary according to the amount of risk to be encountered .......... ".

The authority for this latter proposition is the House of Lord's decision in
Glasgow Corporation v. Muir 9; where Lord Macmillan said:
"My Lords the degree of the safety of others which the law requires human
beings to observe in the conduct of their affairs varies according to the
circumstances. There is no absolute standard but it may be said generally
that the degree of care required varies directly with the risk involved.
Those who engage in operations inherently dangerous must take
precautions which are not required of persons engaged in the ordinary
routine of daily life......In ordinary circumstances or where simple
operations are being performed persons are not as a rule required to guard
against every conceivable result of their actions nor are they bound to
exercise scientific care or to take extravagant precautions. They must have
regard both to the probability of injury resulting and to the probable
seriousness of the injury. They may weigh the cost and the difficulties of
the precautions. They are in general entitled to assume that others will
comply with statutory regulations."

Negligence: Conceptual Study from Criminal Law Perspective:

At early common law, a victim could pursue justice for the same wrongful
act either through a forerunner of criminal law or through a forerunner of tort law.

8 Halsbury's La11•s of England, Lexis Nexis Butterworth Ltd . , 3rd Edn, Vol. n; pages I and 2
9 GlasgoH' Co1poration v Muir [ 1943] AC 448; [1943) 2 All ER 44

6
 CHAPTER-II
REVIEW OF LITERATURE

Tort is a board church and many. hymns, ancient and modem can be
105
heard within it • It is one of the most ancient branches of law, which is still
evolving by responding to changing social and economic conditions.
Jurisprudentially it is intriguing because it demonstrates the sifting boundaries of
judicial creativity. In the annals of legal literature pertaining to tort, negligence
occupies pride of place. Negligence is a relatively recent action to achieve the
status of an actionable tort in the long history of tort. The legal literature on the
conception of negligence is
rather sketchy, in the sense that independent theorizing in the subject is virtually
absent. The available literature on the subject is restricted to merely discussing the
obiter dicta/(s) judgments pronounced by various Judges in different cases in
various common law jurisdictions. Against this rather restrictive backdrop the
research scholar has attempted to present the views of a cross section of the
eminent authorities on the subject.

The starting point of negligence as an independent actionable tort is the

106
decision of House of Lords in the landmark case "Donoghue v. Stevenson " in
the year 1932. In the seventy five or so years since its inception as a distinct ccmse
of action in Donoghue v Stevenson, negligence has developed to become the pre-
..
eminent tort, eclipsing older actions such as trespass, nuisance and breach of
statutory duty. This was purely for historical reasons. The early cases of this tort,
as Winfield observes, dealt with appositive "acts" rather than "omissions", or with
"misfeasance" rather than "non-feasance". Liability for omission . started at the
beginning of the nineteenth century. Thereafter tremendous growth in the field of
science and technology brought human beings more into direct contact, abolition
of distinction between direct and indirect injury, abolition of fonns of action,
rapid increase in the number of accidents and faster traffic were the main
107
factors responsible for its development •

105 Harpwood V -Principles of Tort Law; 4th Edn. Cavendish Publishing Ltd. London at P .V
106 [1932) AC562
107 Gandhi, B.M.- Law ofTorts- 3rd Edn. at P 228.

7
 Most of the academic writers on the subject unanimously agree with the
definition of negligence provided by Aldrson B. in Bylth v. Birmingham Water
108
Works Co :

"It is the breach of a duty caused by omission to do something, which a

reasonable man guided upon those principles, which ordinarily regulates
the conduct of human affairs, would do, or doing something which a
prudent and reasonable man wouldn't do."

One of the earliest academic work on the subject has been that of Sir
109
Frederick Pollock ,who in his treatise "The Law of Torts: A Treatise on the
Principles of Obligations arisingfrom Civil Wrongs in the Common Law" has laid
down a conceptualized perspective on Negligence. In his celebrated work, the
learned Author has laid down the general conception of Negligence. The Author
propounds a general rule that every one is bound to exercise due care towards his
neighbours in his acts and conduct, or rather omits or falls short of it at his peril; .
the peril, namely, of being liable to make good whatever harm may be a proved
consequence of the default .

While agreeing with the observations of Baron Alderson in Bylth v.

110
Birmingham Water Works Ltd, he states that negligence will not be a ground of
legal liability unless the party whose conduct is in question is already in a
situation that brings him under the duty of taking care. He further observed that
negligence is the contrary of diligence, and no one describes diligence as a state of
mind. In so far as the question of evidence is concerned, Pollock opined that in a
claim of negligence proof of actual knowledge may be of great importance. He
also observed that the standard of duty does not vary with individual ability. To
emphasize his point of view he has referred to the observation of the Supreme
Court of Massachusetts. Wherein it's observed that:
"If a man's conduct is such as would be reckless in a man of ordinary
prudence, it is reckless in him. Unless he can bring himself within some
broadly defined exception to general rules, the law deliberately leaves his

108 (1856) II Exch 781,784

I 09 · Tlze Law of Torts: A Treatise on the Principles of Obligations arising from Civil Wrongs in the
Common Law: to which is added the Draft of a Code of Civil Wrongs prepared for the
Govemment of India, Fourth Edition (London: Stevens and Sons, 1895).-Polloc
110 (1856) II Exch 781,784

8
 personal equation or idiosyncracies out of account, and peremptorily
assumes that he has as much capacity to judge and to foresee consequences
as a man of ordinary prudence would have in the same situation".

From the above, it is evident that according to Sir Frederick Pollock

negligence is a conduct rather than any psychological event. The learnened Author
has further, in his celebrated work, analyzed the evidence required for a claim of
negligence. He wrote that negligence a question of mixed fact and law, due care
and caution, as we have seen, is the diligence of a reasonable man, and includes
reasonable competence in cases where special competence is needful to ensure
safety. Whether due care and caution have been used in a given case is, by the
nature of things, a question of fact. But it is not a pure question of fact in the sense
of being open as a matter of course and without limit. He has also laid down his
conception pertaining to the "burden of proof' in a claim of negligence.
According to him, where there is no contract between the parties, the burden of
proof is on him who complains of negligence. He must not only show that he
suffered harm in such a manner that it might be caused by the defendant's
negligence; he must show that it was so caused, and to do this he must prove facts
inconsistent with due diligence on the part of the defendant.

The learned author also discussed auxiliary rules and presumptions

pertaining to the concept of negligence and discussed the judicial attitude
prevailed in United States in the matter.

The above work is the most celebrated traditional literature on the subject.
Sir Fredrick Pollock, in his work, has laid down a theory of negligence, the
jurisprudential perspective pertaining to evidences required in a negligence claim,
conception of contributory negligence and intricacies of separation of law and
fact in United States in a claim pertaining to negligence. He also supported
Winfield's perception of negligence i.e. it is contrary to diligence and not
111
described diligence as a state ofmind •

Ill Pollock-On Ton,Sth Edn. P 336.

9
 CHAPTER-III
METHOD OF STUDY

Progression of human civilization is characterized by the lateral expansion

of human endeavor to master the complexities of the secrets of nature. Human
being's role, at the start of the civilization was limited to the simple task of
hunting for food and procreation. Gradually it changed from this basic functional
model to contemporary form of society, where governance, science, and
technology played a defining role in shaping human behaviour. Each and every
human being in a given society is related to each other in one form or another.
This inter-dependence is the result of the basic human quest to secure the most for
him. This aspect of human psyche often instigates a human being to trample upon
the just and legitimate needs of fellow human beings. This aspect of human
behaviour probably shaped the formulation of what are commonly known as
"State" and "Government". While the purpose of a State is to secure the welfare of
its citizens, the basic functioning of the Government regulates human conduct
through law, which is not a product of human will, but is a common conviction.
Socio-political history of the nineteenth century shaped the World, as we see it
today. Torn between conflicts, which were not essentially limited to battles
fought between soldiers on the battle fields across the world, conflicts between
various other institutions of society like church and political power in the Europe,
Occupationists and natives of the occupied countries for independence across Asia
and Africa, Intellectual battles between various schools of thoughts like liberals,
fascists, communists, democrats have had a profound impact on the shape of the
world order and the position of individuals therein. In the basis of ideological
moorings, nations were formed and societies took shape therein. The position of
individuals in that given society also shaped the legal system of that society.
While State become the all powerful for communists, fascists; Individuals become
the central theme of democrats and liberals. Simultaneously huge strides made by
man in the field of science and technology, led to the growth of industrialized

1
society. At the beginning of twentieth century, despite odd aberrations here and
there, barring democracy, all other forms of government or political systems lost
their relevance in the world. Individual, being the edifice upon which a
democracy rests, the welfare of individual formulated the basis of the legal
system. Preservation of an individual's limb and body, as well as his freedom,
liberty became the central focus of the legal system.

However as stated earlier, the economic dynamics of the modem

industrialized society led to impediments in the wholesome enjoyment of the basic
freedom as well as residual rights and liberties, as envisaged by the legal system
of a democratic or a welfare state. Necessity is the essence of change. No system
can survive by remaining static. In order to secure every individual his basic
freedom as well as residual rights and liberties, legal philosophy gave shape to
institutional mechanisms, whose basic objectives are to secure the enjoyment of
individual his basic freedom as well as residual rights and liberties, irrespective of
his economic status, social standing and corresponding power. Law functionally
assumed a dichotomized shape in terms of Civil and Criminal law. While Civil
law regulates legal private rights, Criminal law regulates conducts, which the State
generally regards as an antithesis to the common good of the society.

On the above logical basis, it is implicit that the State expects an individual
to perform or abstain from performing an act in a given environment. However
such action should be in conformity with normal human conduct, which a logical
and prudent human being would have undertaken or abstained from undertaking in
that given environment. This conduct or "lack of it" is commonly termed in legal
parlance as "negligence". The term "negligence" used in this context assumes a
compendious meaning. ''Negligence" per se: conduct, whether of action or
omission, which may be declared and treated as negligence without any argument
or proof as to the particular surrounding circumstances, either because it is
violation of a statute or valid municipal ordinance, or because it is so palpably
opposed to the dictates of common prudence that it can be said without any

1
 hesitation or doubt that no careful person would have been guilty of it. As a
general rule, the violation of a public .duty, enjoined by law for the protection of
person or property, so constitutes.217

The review of the literature interposes some of the interesting issues. It is

true that theories do not guide us in our actions. However, it expands our horizons,
helps us to see alternative constructions of the phenomenon of tort law, and thus
leaves us with an enriched sense of the possible. Tort law is a multifaceted
enterprise, and each theory highlights factors that matters to tort law. It presumed
that theory not only expands lawyers' horizons, but can and should inform
lawyerly arguments about particular problems in tort law. It simply suggests that
different theoretical insights ought to be brought to bear differently in different
contexts.

It might be possible simply to treat each tort case as sui generis, but every
lawyer and academic who has occasion to think about such cases is invited to
invoke ideas or assumptions as to what, more generally, can or should be said
about the subject. Legal theories, no less than political theories, are resistant to
· falsification: in the face of seemingly disconfirming data, auxiliary hypotheses
can be· invoked, assumptions modified. To some, this feature of theorizing
provides grounds for condemning the whole enterprise of theorizing. More
temperately, one might simply doubt that theoretical disputes will find their final
resolution in observation.

In law, theory is important not merely as an eye opener: it is also an

important part of practical judgment and decision-making. Perhaps we can aspire
to no more than a never-ending "conversation" among jurists who are self
consciously aware of the positions they articulate, but that is a somewhat modest
ambition for so practical a discipline as law.

217 Black's Law Dictionmy

.

1
 Various tort theories often entail opposing interpretations and
prescriptions. What is needed then, and what we do not find in twentieth century
tort theory, is a theory that really is grounded in the law of tort-one that makes as
much sense as can be made of the practices and principles of tort law as we find it.
Of the theories surveyed, corrective justice theory comes closest to that goal.
Unfortunately, it operates at such a high level of abstraction as to offer not so
much a theory of tort, as a theory of the structure or form of tort. Even then. it has
not yet offered a fully adequate account of that structure.

The foregoing review suggests certain methodological guidelines from

which theorists of tort might benefit as they go about the business of theorizing
the "new negligence" and, more generally, the new tort law of this century. These
are not offered as ineluctable or self-evident postulates for clear thinking about
tort. Rather, they are suggested as practical measures that might help improve
academic discourse in this area:
• Distrust disavowals of theory; no influential tort scholar of the last century
could legitimately claim to have eschewed theory in favor of what is
'merely' practical, useful, pragmatic, or realistic. There is no reason to
think the scholarship of the next century will differ in this regard.
• Distinguish theories that aim to interpret tort law from those that offer
prescriptive accounts, whether hypothetical or categorical. If the issue
concerns interpretation, assess what kind of interpretive claims are being
made: historical, conceptual, functional, or other.
• Resist the temptation to characterize disputes between tort theories as a
fight between theories that posit a purpose or function for tort law and
theories that do not. Some theories are entirely instrumental, whereas
other leave room for concepts that are not reducible in any simply way to
functional considerations. Still, all the theories presented here posit a
pragmatic point to tort law. None, for example, explain or defend tort in
terms of its beauty or elegance.

1
 • Distinguish between a theory's account of the 'purpose(s)' or aim(s) of tort
law, on the one hand, and its incidental effects on the other. A corrective
justice theorist, for example, might suppose that 'point' of tort law is to do
justice between the parties, yet still acknowledge that the effect(s) of tort
law sometimes include the deterrence of misconduct or the compensation
of needy victims.
• . Recognize that the domain of tort theory is not exhausted by a two-sided
fight between economic theories and justice-based theories. The last
century witnessed, as we have seen, at least a five-way battle and, as
noted above, I have not tried to be comprehensive in my catalogue of
tort theories. Moreover, even those theories identified as "economic"
and "justice" theories have varied widely in the type of claims they make.

These suggestions will possibly help the scholars avoid some of the
confusions of twentieth-century tort theory, and promote more charitable
understandings of the different positions within this corner of the academy.
Perhaps they might even lead to theoretical advance. They ought to be taken,
however, in conjunction with a different sort of caution, one that consists not of a
plea for methodological improvement but instead suggests a shift in perspective.

As indicated in the Introduction, the project of twentieth century tort

theory was launched by the industrial revolution, and has for the most part
continued to bear that birthmark. To Holmes and those who followed in his
footsteps, tort law was the law of mechanized accidents. On their view, the
classical account: born of a pre-industrial era, had nothing to say on the pressing
policy question of whether these accidents would be governed by a standard of
strict liability or negligence. Even corrective justice theorists, who in some ways
are more sympathetic to the classical account, have drunk deeply from the
Holmesian well. Thus, they, too, have tended to focus on the law of accidents and
the question of strict liability versus negligence.

1
 Prediction is a hazardous business, particularly when undertaken by a law
research scholar. Still, one may speculate that, in the near term, mechanized
accidents will cease to provide the focal point of tort. Even in the heartland of
modem accident law -:- products liability - one already sees a relative increase in
claims grounded in failure to warn and inform, as well as misrepresentation. These
are not the mechanical mangling around which Holmes organized tort theory.
Moreover, at least as alleged, they involve culpable acts rather than inevitable
accidents nor difficult cost-benefit judgments about design safety. In short, the
post-industrial revolution may soon pose to the Holmesian project the same risk of
obsolescence that the industrial revolution posed to the classical account.

Thus, it is quite possible that tort theorists soon will be required to provide
not just theories of tort law qua accident law, but comprehensive and
comprehending theories of tort, theories that see the "new negligence" as part of a
multi-faceted yet broadly coherent law of wrongs. Ironically, the traditional
account might provide a promising starting point for such efforts.

Objectives of the Study

The primary objective of the present doctoral research is to conduct an in
depth study on the following aspects ofNegligence.
i) to critically analyze the conceptual frame work of" Negligence" and
its location in the Laws of Tort,
ii) to trace the historical growth tortious liability both at international as
well as at domestic level keeping specific focus on laws of negligence
iii) to identify the typology of negligence and tortious liabilities and study
its legal characteristics
iv) to review theories of Negligence and tortious liabilities and identify
research scholars view points on new types negligence and liability
v) to critically examine the legal elements of Negligence
vi) to identify some of the New emerging areas of tort and analyze its
legal dimensions

1
 vii) to analytically examine the Judicial trend of the Indian Judiciary while
interpreting the legal issues of negligence and tortious liability, and
viii) to predict and suggest new proposition of law that are likely to be
useful in the future and specifically in the globalized world.

Introduction to the Case-Study Method

18
The Case Stud/ is one of several ways of doing legal research. Other
ways include empirical, surveys, doctrinal, multiple histories, analysis of archival
information and impact analysis. Rather than using large samples and following a
rigid protocol to examine a limited number of variables, case study methods
involve an in-depth, longitudinal examination of a single instance or event: a
case. They provide a systematic way of looking at events, collecting data,
analyzing information, and reporting the results. As a result the research scholar
may gain a sharpened understanding of why the instance happened as it did, and
what might become important to look at more extensively in future research. Case
219
studies lend themselves to both generating and testing hypotheses

Yin, on the other hand, suggests that case study should be defined as a
research strategy, an empirical inquiry that investigates a phenomenon within its
real-life context. Case study research means single and multiple case studies, can
include quantitative evidence, relies on multiple sources of evidence and benefits
from the prior development of theoretical propositions. He notes that case studies
should not be confused with qualitative research and points out that they can be
based on any mix of quantitative and qualitative evidence. Single-subject research
provides the statistical framework for making inferences from quantitative case
220
study data. This is also supported and well-formulated in Lamnek's work. "The

218 Robert K. Yin. Case Study Research. Design and Methods. l11ird Edition. Applied social research
method series Volume 5. Sage Publications. California, 2003.
219 Bent Flyvbjerg, "Five Misunderstandings About Case Study Research ." Qualitative Inquiry, vol. 12,
no. 2, April 2006, pp. 219-245.
220. Siegfried Lamnek. Qualitative Sozialforschung, Lchrbuch . Auflage. Beltz Verlag. Weihnhein, Basel,
2005

1
case study is a research approach, situated between concrete data taking
techniques and methodological paradigms."

Different Types of Case Studies:

There are several formats through which case studies can be conducted.
Some of the following methods are popular among research scholars :

Exploratory Case Studies: Exploratory case studies condense the case

study process: research scholars may undertake them before implementing a large
scale investigation. Where considerable uncertainty exists about program
operations, goals, and results, exploratory case studies help identify questions,
select measurement constructs, and develop measures; they also serve to safeguard
investment in larger studies. The greatest pitfall in the exploratory study involves
premature conclusions: the findings may seem convincing enough for
inappropriate release as conclusions. Other pitfalls include the tendency to extend
the exploratory phase, and inadequate representation of diversity.

Critical Instance Case Studies: Critical instance case studies examine one
or a few sites for one of two purposes. A very frequent application involves the
examination of a situation of unique interest, with little or no interest in
generalization. A second, rarer, application entails calling into question a highly
generalized or universal assertion and testing it by examining one instance. This
method particularly suits answering cause-and-effect questions about the instance
of concern . Inadequate specification of the evaluation question forms the most
serious pitfall in this type of study. Correct application of the critical instance case
study crucially involves probing the underlying concerns in a request.

Program effects Case Studies: Program effects case studies can

determine the impact of programs and provide inferences about reasons for
success or failures.

1
 Prospective Case Studies: In a prospective case study design, the research
scholar formulates a set of theory-based hypotheses in respect to the evolution of
an on-going social or cultural process and then tests these hypotheses at a pre
determined follow-up time in the future by comparing these hypotheses with the
observed process outcomes using "pattern matching" or a similar technique.

Cumulative Case Studies: Cumulative case studies aggregate information

from several sites collected at different times. The cumulative case study can
have a retrospective focus, collecting information across studies done in the
past, or a prospective outlook, structuring a series of investigations for different
times in the future.

Narrative Case Studies: Case studies that present findings in a narrative

format are called narrative case studies. This involves presenting the case study as
events in an unfolding plot with actors and actions.

Embedded Case Studies: An embedded case study is a case study

221
containing more than one sub-unit of analysis . Similar to a case study, an
embedded case study methodology provides a means of integrating quantitative
222
and qualitative methods into a single research study. However, the
identification of sub-units allows for a more detailed level of inquiry. The
embedded case study design is an empirical form of inquiry appropriate for
descriptive studies, where the goal is to describe the features, context, and process
of a phenomenon.

A case study research methodology relies on multiple sources of evidence

to add breadth and depth to . data collection, to assist in bringing a richness of data
together in an apex of understanding through triangulation, and to contribute to the
validity of the research. The unique strength of this approach is this ability to

221 Robert K. Yin. Case Swc(v Research . Design And Methods. Third Edition . 5 Applied Social
Research Method Series. Sage Publications. California, 2003.
222 Roland W. Scholz & Olaf Tietje. Embedded Case Study Methods. luiegrating Quantitative And
(2ualitative Kno wledge. 2002,

1
combine a variety of information sources including documentation, interviews,
and artifacts (e.g., technology or tools). "The case study is preferred in examining
contemporary cases or events, when the relevant factors cannot be manipulated".
The embedded case study approach is particularly relevant to examination of
factors and issues of where the boundaries between the legal interests and context
are not clearly evident.

Measure
For the purpose of the present Doctoral research the research scholar has
preferred to adopt embedded case method. The draft methodology is composed of
five steps.

(1) Identify Key Issues of Negligence and Stakeholders: This initial stage
involves, among other preparatory work, reviewing the international legal
instruments being confirmed by the legal community of India; examining legal
statement and Restatements; locating books, reports and on laws of negligence So
far as stake holders of negligence are concerned apart from conventional parties
the new emerging patterns of stake holders have also been considered.

(2) Investigation of the Existing Reports: This step involves obtaining and
analyzing key background information from different statement and restatement
Reports, Law Commission Reports & Case Reports dealing with major issues of
negligence. These reports in fact present provide the basic logical framework for
the present research work.

(3) Selection of Sample Cases : Torts are a particular area of law handled by an
injured party filing a civil suit for damages. If a case is won, damages may include
medical expenses; lost wages, or pain and suffering. Some torts can be considered
a crime in addition to a tort, and the offender could also face criminal charges.
There are three tort classifications: intentional, negligent and strict liability torts.
Following modalities are often adopted to classify tortuous liability

1
 Stepl: Decide whether a reasonable person would know that her actions or
failure to act would result in harm. If so, the tort is classified as intentional. For
example, if a person assaults someone, it is reasonable to assume that injury would
result. Inthis case, it would also be a criminal offense.

Step2: Be objective when thinking through an injury sustained by what

appears to be an accident. While it is possible that an accident could be considered
an intentional tort, it is more likely that it would be classified as a negligent tort.
For example, the defendant is backing out of a parking place and hits you, causing
injury.

Step3: Determine if the wrong was caused by a product. If so, the

classification- of tort would be strict liability. In this case, it doesn't matter whether
it was intentional. For example, a person is injured in a vehicle due to a
manufacturing defect. With this tort, the line of defendants can become extensive
because it includes all companies involved in the manufacturing of the product

But, for the purpose of the present research the sample cases have been
classified in the following format

a) Cases that explains the conceptual framework of laws of negligence

b) Cases that Interprets the legal Elements of negligence

c) Cases that deals with new dimensions of laws of negligence, and

d) Cases that deals with new emerging areas of negligence and liability.

(4) Number of Sample cases: In case studies, number seldom plays a significant
role. What is important is the nature of the case. Therefore, as stated above the
cases have been classified as per their nature and relevance of the present research
issues.

2
(5) Analysis of Cases: The selected cases are analyzed in the following format
i) Investigating Reading. To understand fully what is happening in a case, it
is necessary to read the case carefully and thoroughly. Some times quick
reading could be misleading. Unless the fact of the case is properly
analyzed it becomes very difficult to identify the major legal issues
involved therein.
ii) Defming the Legal Issue. Ordinarily, a case is engaged with several issues
or problems. Therefore, identifying the most important problems and
separate them from the more trivial issues are crucial activity. After
identifying what appears to be a major underlying issue, examin tion of
related problems in the functional or applied perspective is essential.
iii) Identifying New Emerging Legal Dimensions: Besides conventional
issues the research should also attempt to identify new emerging areas of
laws of negligence and its legal dimensions. From the review of cases the
following dimensions of laws ofNegligence have been identified:
a) Negligence and Mass Tort
b) Negligence and Product Liability
c) Professional Negligence
d) Negligence and State liability
iv) Application of Legal ratio: After identification of legal issues, the rights
and liabilities of the parties are determined on the basis of set principles of
law (Precedent) or the provision of law. Some times, judicial dictums of
foreign Courts provide vital legal logic for the interpretation of law.
Several authoritative commentaries of law and the views of legal
exponents have also been considered for proper analysis of law.

(6) Discussion and Implication of the research: Each legal system has got its
distinctive characteristics. The Indian legal system has developed a plethora of
codified legislation to deal with negligence in the sphere of consumer issues,
industrial and mining safety issues, environmental issues, motor vehicle, railways,
air travel as well as carriers. These legislations have under gone judicial scrutiny

2
as well as amendments to meet the demand of changing social conditions. After
analysis of the sample cases, the findings are discussed from legal perspective and
legal inferences are drawn. These two components are extremely significant
because, its out come can lead the policy makers to restructure the frame work of
law as well as convince the judicial and legal community to redefine the
jurisprudence of Laws ofNegligence

Derivation of Chapters:
Chapter-! Introduction
• Conceptual analysis"ofNegligence.
• Development of the concept of negligence
• Recognition of the concept of negligence
by the Indian Legal System.

Chapter-II Review of Literature

• Issues and Research Questions
• Hypothesis

Chapter-III Method of Study

Chapter-IV Negligence: Legal Elements.

Chapter-V Emerging Dimensions of Laws of

Negligence

Chapter-VI Legal Frame Work ofNegligence &

Judicial Trend in India

Chapter-VII Discussion

Chapter-VIII Major Implications, Suggestions and

Conclusion

2
Horizon of the Research:
The law of torts in India presently, is mainly the English law of torts which
itself is based on the principles of the common law of England. However the
Indian courts before applying any rule of English law can see whether it is suited
to the Indian society and circumstances. The application of the English law in
India has therefore been a selective application. In this context, in M C. Mehta v.
223
Union of India Justice Bhagwati observed:
"We have to evolve new principles and lay down new norms which will
adequately deal with new problems which arise in a highly industrialized
economy. We cannot allow our judicial thinking to be constructed by
reference to the law as it prevails in England or for the matter of that in
any foreign country. We are certainly prepared to receive light from
whatever source it comes but we have to build our own jurisprudence."

But in the age of Globalization where transnational tort issues are the
major issues in such situation it is difficult to hang on to only Indian cases.
Possibly this is the reason for which of late , both English and American
decisions have started influencing the judicial view points of Indian Courts.
Hence, keeping these developments in view the Anglo-American cases have been
considered as a matter of reference and formulation of judicial principles.
However, primacy has been accorded to Indian cases.

223 AIR 1988 SC I037

2
 CHAPTER-IV
NEGLIGENCE: LEGAL ELEMENTS

Negligence is a large and amorphous subject. Almost seventy five years

224
after the seminal decision of the House of Lords in Donoghue v. Stevenson, the
boundaries of negligence are still as blurred as ever. Some of the vagueness
surrounding this tort is inescapable. It is an unavoidable price paid for the
225 226
reliance on abstract, open-ended, amorphous, and incoherent notions. All
parts of this law are interlocked. Most academic writers on the subject agree that
duty, breach, causation, and damage are the elements, which together make up
227
any successful negligence claim. Dillon LJ; in Burton v. Islington HA
declared that "'it is now elementary that the tort of negligence involves three
factors: a duty of care, a breach of that duty and consequent damage." Their
requirements may be rephrased as a series of questions, each of which must be
answered affirmatively if the, plaintiff is to win: does the law recognize liability
in this type of situation (duty)? Was the defendant careless in the sense of
failing to conform to the standard of care set by law (breach)? Has the plaintiff
suffered a loss (damage) for which the law regards the defendant as
responsible either in whole or in part (causation)? This chapter is a doctrinal
inquest of each of these questions.

The Courts did not recognize the existence of a general duty in tort
imposing liability for careless behaviour across a range of situations and
relationships until the 1930s. The turning point was the decision of the House of
228
Lords in Donoghue v. Stevenson. Prior to this decision, legal liability for
carelessness were clearly established only in a number of separate, specified
situations, which lacked a unifying principle. A duty to take care was attached by
law to certain traditional categories of status, as in the case of the duty owed to a
customer by an innkeeper or common carrier, or the duty of an artisan to use the
customary degree of skill and care in his work. Other situations which gave rise to

224 Donoghue v. Stevenson, 1932 A.C. 562

225 Richard Mullender, Negligence: The Personal Equation of Defendants and Distributive Justice, 8 Tort
L. Rev. 21 I (2000).
226 Joanne Conaghan & Wade Mansell, The Wrongs ofTorts 7 (2d ed. 1999);
Bob Hepple, The Search for Coherence in Negligence, 50 Current Legal Probs. 69, 81-82 ( 1997).
227 [1992]3WLR 639,655
228 [1932)AC562

2
a duty of care without the need for a specific promise or undertaking included the
229
holding of certain public offices and the bailment of goods. Road and rail
accidents and maritime collisions caused by carelessness could also lead to
liability in tort, although in many such cases legal responsibility was limited by
the operation of the defenses of contributory negligence and consent. In the
nineteenth century the courts added the category of liability for 'things dangerous
230
in them, such as a loaded weapon. In such cases the law recognised 'a peculiar
duty to take precaution imposed upon those who send forth or install such articles
when it is necessarily the case that other parties will come within their proximity.

Beyond this the courts did not venture out. This was partly on the grounds
that duties of care, which originated in contract, were confined in their effect to
the parties to a particular agreement. To use tort to extend the liability of a
landlord builder or manufacturer to remote third parties would undermine the
31
strict common-law principle of 'privity of contract'? For example, a landlord
who contracted to repair the floor of a house and then failed to do so owed no duty
of care to the tenant's wife injured when the floor gave way beneath her since
'there was but one contract and that was made with the husband. The wife cannot
•
sue upon I
232
t.

This emphasis on privity of contract amounted to a view that in the area of

negligence, tort was subordinate to contract as a source of civil liability. However
as we have seen some exceptions to privity of contract had long been recognised.
The restriction of tort claims came to be seen as outmoded because. the courts
could no longer find a coherent explanation for the admission of some exceptions
and the denial of others. The treatment of claims for compensation was perceived
as having become arbitrary and unjust. A reference can be made to a number of
233 34
cases such as Hodge v. Anglo-American Oil Co and Bottomlev v. Bannistel •

Furthermore, Lord Judge Brett in Heaven v Pende/ 35formulated a general

229 Wintield.-Duty in Tortious Negligence ( 1934) 34 Col. LR 41. 45.

230 Langridge v Levy ( 1837) 2 M&W519
231 Winterbottom v. Wright (1842) M&W 109 is generally taken to be the origin of this strict insistence of
privity of contract
232 Cavalier v. Pope [1906] AC 424, 430(Lord
James) 233 (1922) 12 L. L. Rep.I83
234 [ 1932] IKB 458
235 [1883)11 QBD503

2
 CHAPTER-V
EMERGIMG DIMENSIONS OF NEGLIGENCE

At one point of time our parents undertook our responsibilities and later on
it is the State who finally takes every body's responsibility. However, in between
we depend on several actors who undertake our responsibilities by contractual
relationship. As societal inter-dependency grows resultant societal deviations also
mounts. Since the typology of human dependency has changed the legal
dimensions of tort, consequently the dimensions of negligence have also changed.
The present segment attempts to analyze some of the emerging areas of law of
negligence. The analysis is comparative in nature as cases and practices from UK,
USA and India have been considered as a matter of reference and analogy.

Emerging Dimension- I: Transnational Corporations (MNC) and Mass Tort

'Mass Torts', etymologically speaking means 'such activity of the
defendant, the harm caused by which is wide and a large number or sector of
society gets affected simultaneously'. In other words, we can say that the cases of
mass torts are somewhat different from those situations when only one or two
persons are harmed. A mass tort is a civil action involving numerous plaintiffs
against one or a few corporate defendants in state or federal court. As the name
implies a mass tort includes many plaintiffs and law firms have used the mass
media to reach possible plaintiffs. Mass torts may include mass disaster torts,
mass toxic torts, and product liability torts.
1. In day-to-day life, we come across with the cases of mass torts. For
370
example, Alcock v. Chief Constable of South Yorkshire Police is
one instance of such type. In Indian context, we can think of fire
371 372
and smoke at Uplzaar Cinema , Stampede at Kumbh Mela or
Patna Air Crash373 • Such cases can be clubbed under two
categories- where the activity is dangerous or hazardous and a
sizable number of people are prone to harm.

370 370(1991)4 AllER 907

371 http://www.zeenews.com/nation/2009-0 1-30
372 http://in.rediff.com/news/kumbh03 .htm
373 http://in .rediff.com/news/pcrash.htm

2
 2. Where the activity is prima facie harmless or recreational but
people have assembled at the site on the invitation of the
defendant.

A question arises about what principle of liability should be applicable in

such cases and how should these cases be treated differently .The trend is in
favour of applying the principle of strict liability (in some cases absolute
liability). The justification for this might be advanced on the grounds of harms
to large number of people, nature of activity and the increased standard of care.

About the relationship of mass torts and industrialization, there are

certain striking features which differentiate it from the other ordinary cases of
torts
a) As the effects arising from the industrial hazards are prolonged and
uncertain, it is almost impossible to exactly ascertain the amount of
damages.
b) The responsibility of National Government in a welfare state to act as the
guardian of people's lives and properties is activated because such cases
usually involve a large section of society. Moreover, ordinarily that section
is poor, powerless and illiterate and hence, hardly in a position to act on its
own.
c) Not natural persons but legal persons are ·behind theses activities
(companies and that too MNC(s) in certain cases) it becomes difficult to
find out the forum for suing the dependant company because of its web of
corporate office.

Salient Characteristics of Mass Torts: The salient/defining

characteristics of a mass tort include:
1. Numerous victims who have filed or might file damage claims
against the same defendants.
2. Claims arising from a single event or transaction, or from a series
of similar events or transactions spread over time.
3. Questions of law and fact that is complex and expensive to litigate
and adjudicate - frequently questions that are scientific and
technological in nature.

2
 CHAPTER-VI

LEGAL FRAMEWORK OF NEGLIGENCE &

JUDICIAL TREND IN INDIA

India is a common law country and most of the judicial techniques are of
common law origins. The law of negligence is no exception to it. However the law
of negligence in India has evolved into two distinct _ domains i.e. statutory
negligence and open-ended principles of negligence derived from case laws. In
this chapter, the research scholar has taken an overview of the significant
legislations wherein negligence has been statutorily attributed to the defendant by
virtue of act/omission and then analyzed the judicial approach to it as well as the
open-ended principles of negligence by discussing relevant case laws. Realizing
that the horizon is too broad to cover within the scope of this work, the research
scholar has discussed a few significant and relevant legislations in the following
paragraphs.

The Motor Vehicles Act, 1988:

Originally enacted in the year 1939, during the British rule in India, the
Motor Vehicles Act has undergone a sea of changes between 1939 and 1988. The
act has beeh amended comprehensively in the year 1988 in tune with the welfare
State ideals of India and in order to meet the growing demands of its people. The
Motor Vehicles Act, 1988, between sections 165 and 176 comprehensively
provides for the establishment of claims tribunals by the state governments, the
procedure for applying compensation by the victims, procedure and powers of the
claim tribunals in making the awards, liability of the insurance companies,
enabling the state government to make rules, awarding interest on the
compensation amount, providing for appeals etc. The characteristic feature of the
act is that it accepts and fixes the cases of road accident victims as tortuous
liability upon the culprits who cause the road accidents. The insurance companies
are burdened with vicarious liability in paying ·compensation amount to the
victims, though they may not be directly causing any accident.

2
 While awarding compensation to an accident victim, the tribunal takes
into account the nature of the injury he suffered, whether it is simple or grievous
and if grievous, the duration of the treatment he has taken for treatment, the
medical expenses involved, the percentage of permanent disability the victim
has sustained, his loss of income etc. In order to assess the permanent disability
of the victim, the Tribunal invariably relies upon the medical opinion of a
medical expert.

The Fatal Accidents Act, 1855:

The Fatal Accidents Act 1855 provides specifically for payment of
damages by any person who by wrongful act, neglect or default cause the death
of another person. The Act gives certain relatives of the person killed a right
to claim damages in their own name. The damages are assessed in accordance
with the pecuniary loss occasioned to the relations by the death, which is based
on the earning capacity of the deceased during the normal expectation of his life,
prior to his death. An employer may be liable to pay damages for injury arising
from an accident caused by the negligence of the employer, Defects in
machinery, Carelessness of the fellow employee etc. Contributory negligence, i.e.
negligence on the part of the injured workmen does not fully absolve the
employer from his liability. There is no limit to the amount of damage, which of
may be awarded to the aggrieved party.

The Consumer Protection Act, 1986:

This Act was introduced to safeguard the interests of ordinary consumers
in their daily transactions like the buying of goods or hiring of services. Some of
the rights that are protected include the right to information about the goods o
services, the right not to be given defective goods, unfair trade practices, faulty
services, exploitation etc. A consumer has been defined as any person who either
buys goods or hires or avails of any services. This definition has been expanded
by the courts and now it includes amongst others, medical patients in government
and private hospitals, persons allotted houses by the government etc. The Act
provides for a three-tier forum to redress consumer disputes. The District Forum
consist of one president and two other members (one of whom is to be a
woman).The president of the Forum is a person who is, or has been qualified to be

2
 CHAPTER-VII
DISCUSSION

The tort of negligence, unlike trespass and deceit, was not a nominated tort
in the yearly phases of common law. Even though attempts were made in Nocton v
716
Lord Ashburton but such attempts were weighed down because of potential for
,

conflict with deceit, property and contractual values which were too influential at
those periods for the emerging tort of negligence to hurdle. It prompted Lord
Atkin to comment upon the preoccupation of the common law with rigid
categorization at that time:
"It is remarkable how difficult it is to find in the English
authorities statements of general application defining the relations between
parties that give rise to the duty. The Courts are concerned with particular
relations which come before them in actual litigation, and it is sufficient to
say whether the duty exists in those circumstances. 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
777
examined and classified ".

Prior to the landmark judgment in Donoghue v Stevenson 778, the law had
developed along the line of fixed closed categories. The categories all related to
variants of negligent conduct causing damage to the person or property. These
included categories relating to master and servant, the duties of owners and
occupiers to people who came onto their land, the duties relating to the circulation
of dangerous articles, and the knowing circulation of articles that had a hidden
danger. The categories were virtually closed and an elaborate set of complex rules

776 [1914] AC 932

777 Duty of Tort i11 Tortious Negligen ce, Wintield, [ 1934] Columbia Law
Review,42
178 [1932] AC562

3
had grown up surrounding them. There were real difficulties in applying the
779
categories of liability and exclusion • These rules, far from adding certainty to
the law, because of their subtleties, led to confusion. The law of this time reveals
the real problem that may be caused by a rigid insistence upon clusters of
windowless monad-like categories.

Before 1932 there was no general principle of liability in tortious

negligence and the law before that date was accurately described by Asquith LJ, in
780
Candler v Crane, Christmas & Co as 'having been built up in disconnected
slabs exhibiting no organic unity of structure'. As he said:
"These categories attracting a duty had been added to and subtracted from
time to time. But no attempt had been made in the past to rationalize them;
to find a common denominator between the road users, bailees, surgeons,
occupiers, and so on, which would explain why they should be bound to a
duty of care and some other classes who might be expected equally to be
so bound should be exempt - no attempt, that is, save that of Lord Esher
MR (from which his colleagues dissociated themselves) in Heaven v
Pender".

These rigid categories of duty provided little opportunity for expansion.

The first effort to open up another category occurred in the 'no zone' area of
product liability. In this zone the common law, in the case of Winterbottof!'l v
81
WrighP , had tied itself to the fallacy that, if tortious negligence concurred with
a contractual duty, then the contractual duty shut out the tortious one, as only
parties to the contract could sue. This insistence upon contractual values over
tortious ones was to become a typical conservative theme used to impede the
development of tortious negligence. Under this fallacy only parties privy to the
782
contract had a right of action .In the United Kingdom the privity fallacy, in

779 The problem is well illustrated in respect to what was to be classified as a dangerous article and the
difficulties of classifYing such an article. The views of Lord Buckmaster should be compared with
Lord Atkin, in 'Donoghue', as to the effect of Dominion Natural Gas Co Ltd v Collins £ Perkins
[1909] AC 640 646.
780 [1951] 2 KB 164; 188
781 ( 1842) 152 ER
402
782 This doctrine. in the course of the United Slates cycle of negligence, had been exploded earlier by
Cardozo J in McPherson v Buick ( 1916) 217 NY 382

3
 CHAPTER-VIII

MAJOR IMPLICATIONS, SUGGESTIONS & CONCLUSION

Major Implications:

A detailed analysis ·of the various ways in which the Courts of civil-law
world have gradually and spontaneously developed the law of negligence and
manifested in the case laws discussed in the preceding chapters above show that
the courts have widened the scope of social relativity and responsibility with
reference to the changing character of industrial society. The American decisions
831
in the Macpherson v Buick Motor Company and the English decision in
Donoghue v Stevenson have laid the foundation of the modem law of negligence
as an independent. The principles laid down in these two decisions are no doubt
basic tenets of the law of negligence but at the same lime the progress of law has
widened in four directions: first, through the expansion of the term 'manufacturer'
so as to include repairers and others: second, through the dilution of the concept of
'dangerous' things to a degree which makes it possible to say that today any object
may be 'dangerous' in certain situations i.e. if handled in a manner falling below a
reasonable standard of care; third, through the use of res ipsa loquitur, which has
in effect, reversed the presumption of fault. The manufacturer or keeper of the
things is generally presumed to be responsible for suite of the product or operation
emanating from his enterprise, unless he can prove intervention by · an
unconnected third party of force majeure; fourth, through the erosion of the
former distinction between liability for the acts of a servant and non-liability for
832
the acts of an independent contractor. This consistent developmental change is
also found in the erstwhile communist countries in East Europe and in France. For
example, the Civil Codes of the East European countries provide that persons and
enterprises whose activities present special danger to the persons around them,
such as rail roads, street cars, factories and mills, vendors of inflammable

831 217 M.Y. 382, Ill N.E. 1050 [1916].

832 Friedman: Law in a Changing Society, 2nd Edn. page 167

3
Doctrine of public policy applied by the courts, has taken an important role to play
in changing concept of policy of the courts.

The law of negligence in India, as it stands today is a curious mix off

Common Law Principles as well home grown solutions to problems, typical to
India. The reasons are not difficult to fathom.

Spirituality has been the dominant note of Indian culture. Dharma has for
it objective the attainment of temporal welfare through spiritual well-being.
The predominance of "duty" over rights put the latter in shade. In the absence of
any assertion of right, the violation of duty could only draw objective penal
sanctions. Therefore the elements of negligence find difficulty in securing
reorganization. Coupled with the above, abject poverty coupled with lack of
education has also contributed to the abysmal state of tort of ·negligence as an
actionable tort. Therefore the lack of original theorizing on the subject by Indian
Authors is also not surprising.

But now the Indian mind in this industrial age is slowly dislodging from its
habitual abode of slumber and tort of negligence is likely to gain prominence
against the backdrop of ever increasing accidents: road, rail and industrial and
rapid industrialisation and urbanization.

SUGGESTIONS:

The objective of this thesis, at the outset, is to carry out a doctrimil inquest of
the concept of negligence in India, while laying emphasis on its legal dimensions
and judicial approach to the concept.

After analyzing the whole gamut of the objective, the researcher is of the
view that in the absence of any significant theorizing and swaying judicial
reasoning's, the Indian Law of Negligence is virtually a replica of the common

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 CONCLUSION:

This research work as stated earlier is a doctrinal inquest of the concept of

negligence in India, while laying emphasis on its legal dimensions and judicial
approach to the concept of negligence. It has adopted a comparative perspective
by drawing from USA Legal System as well as Common Law System.

The conceptual perspective of negligence, entwined in the concept of "duty

- of care", "breach of the duty" and "c msequential damages", has evolved with the
passage of time to meet the social changes. Courts have constantly invigorated
their intellectual capacity to find just and equitable solutions to maintain social
equilibrium and render justice. However with melting of economic borders across
the globe, overwhelming reliance on technology and industrialisation, the concept
of negligence is going to test new grounds.

The Law of Negligence in India, as stated earlier, is built upon the edifice of
Common Law System. Even though the Courts in India have successfully applied
the common law conceptions of "duty of care", "breach of the duty'' and
"consequential damages" to situations in India to mitigate the sufferings of
victims and compensate them adequately for their losses, still it seems to be an
attempt to "bolt the stable after the horse has left" in nature rather than any
thing pre emptive. Further during the course of this work, it is also observed that
there has been definitive sift in approach of the judiciary to inculcate the
judicial trend/thought from USA and other non-common law jurisdiction and
apply the same to the Indian situations to dispense justice. The examples are
many viz. "Constitutional Tort", "No Fault Liability" etc. But the common
link between them is that they all came by way of judicial action only after
considerable loss of life and property. With India opening its door to the World
and rapidly transforming itself into an industrialized society, the possibilities of
economic prosperity are fraught with considerable risk. Another "Bhopal Gas"
tragedy or another "'Satyam" may be lurking around the comer. But then do
we have any

3
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