| GyanCentral - The hub for engineering and law students - IIT-JEE, AIEEE, BITSAT, CLAT, AILET - 2012: Negligence Oct 18th 2012, 08:55 | GyanCentral - The hub for engineering and law students - IIT-JEE, AIEEE, BITSAT, CLAT, AILET - 2012 | | The source for all engineering and legal education news in India | | | Negligence Oct 18th 2012, 08:38 Negligence One should be responsible for the direct consequence of his negligent act as it is obvious that it might cause injury to the third person. A person must use ordinary care or skill towards a person whom he woes a duty of ordinary care and skill- otherwise such person may suffer injury to person or property. Negligence has been considered as an independent tort. It has two meaning in law of torts: (1) Negligence as a state of mind e.g., committing trespass, defamation. It denotes the mental element. (2) Negligence as type of conduct-it creates the risk of causing damage, rather than a state of mind. This is the objective meaning of negligence, which treats negligence as a separate or specific tort. The person suing has to prove the following essentials of negligence:- (1) That the defendant owed a duty of care to the plaintiff; (2) That the defendant made a breach of that duty; (3) And the plaintiff suffered damage as a consequence of thereof. Duty of care Duty of care means a legal duty i.e. a duty imposed by law. It does not mean a moral, social or religious duty. It is not sufficient to show that the defendant was careless; the plaintiff has to establish that the defendant owed a specific duty towards the plaintiff, This legal duty arises out of some relationship between them e.g., that of manufacturer, salesman, landlord, customer, tenant etc. Duty of care depends upon the reasonable foresee ability of the injury to the plaintiff. The bus driver and conductor are both liable for the injury to the passenger who was allowed to travel on the roof of the bus and who was struck by overhanging branch of a tree due to the negligent driving. The dog inside the car parked by the roadside smashed the glass panel, the splinter from which injured a person walking past the car. The owner was not liable as the accident was not foreseeable. Similarly the bursting of a plug in a plug line due to exceptionally severe frost could not have been anticipated. Duty in Legal and Medical Professions: A person engaged in any profession is supposed to have the requisite knowledge and skill needed for the purpose and he has a duty to exercise reasonable degree of care in the conduct of his duties . The standard of care needed in a particular case depends on the professional skill expected from the persons belonging to a particular class to which he belongs or holds himself out of belong. If an Advocate does not pursue the case of his client and the same is dismissed in default, and even if thereafter the Advocate fails to give necessary information to his client and the matter in appeal is not pursued properly, the Advocate can be required to return the fees received by him and pay further compensation to the client. Similarly, if due to the negligence of the surgeon or the anaesthetist, brain damage is caused to a patient or due to the negligence of a doctor in performing the operation the patient dies, the Surgeon or the anaesthetist would be held liable for the same. Similarly, failure to perform an operation to save life of a patient also amounts to negligence. Similarly, if there is lack of life saving facilities and well trained and qualified doctor is not available, as a consequence of which a patient dies, the hospital authorities can be held liable for the same. If while performing surgical operation foreign matter is left in the body , the doctor and the hospital authorities would be liable for the same. If the doctor performs an emergency operation as a result of which the patient dies, he shall not be liable for his death. Breach of duty Breach of duty means not taking due care which is required in a particular case. The standard of care demanded is that of a reasonable or a prudent man. If the defendant acted like a reasonable prudent man, there is no negligence. It is not necessary that the defendant took the greatest possible care. The care required is that of a reasonable man. This, where a factory due to heavy rain got flooded with water , which mixed with oil and made the floor slippery , and the owners spread all the available sawdust to prevent any mishappening, the owner was not held liable for any slip. But if poisonous berries, which looked like cherries, were grown in not properly fenced public garden and a child ate them and died, the municipal corporation would be held liable. Damage There are certain cases in which the negligence need not be proved because the facts speak for themselves ( res ipsa loquitor). The plaintiff is relieved from the burden of proving negligence and it is upon the defendant to disprove negligence. For example – if an explosive which normally flies perpendicularly to the sky before it explodes, but it flew tan gently due to the defective ejection equipment and fell and burst in the midst of a crowd in a field causing injury, the defendant will be held liable. Similarly for the falling of clock tower which was 80 years old (the normal life would have been 40-45 years having regard to the mortar used) the municipal corporation was held to be negligent for not subjecting the clock tower to careful and systematic inspection. Negligence can be presumed in the case of a bus going on the road over turning, death of a person by live broken electric wire on the street etc. |  | | |  |  |
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