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ASSIGNMENT 6

SANGEETHA A/P ARJINAN

Negligence constitutes an independent basis of torts liability.1 According to Winfield, negligence as a tort is the breach of a legal duty to take care which results in damage, undesired by the defendant to the plaintiff. Thus, to establish negligence, a plaintiff (the person injured) must be able to prove or demonstrate in court that the defendant (the person being sued). There are also two type of definition derived from two cases which are as follows :i) Heaven v. Pender, (1883) 11 QBD 503 Negligence defined as an actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill by which neglect the plaintiff has suffered injury to his person or property. ii) Union of India v. Hindustan Leaver Ltd., AIR 1975 P&H 259 Negligence is a breach of duty to take care remitting in damage to one whether to person or property. There are three main essentials of negligence as follows which should be proved before a defendant can be held liable for negligence :i) Duty of care; ii) Breach of duty; and iii) Remoteness of damage. If any of these elements are missing, a defendant will not be liable for negligence. Normally the question of existence of a duty situation in a given case is decided on the basis of existing precedents covering similar situations. It is now well settled that new duty situations can be recognized. There are several cases in which the duty of care is described.

David G. Owen, Professor of Law. Howstra Law Review. University of South Carolina.

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SANGEETHA A/P ARJINAN

In Donoghue v. Stevenson, the case is described as Neighbor Principle. In that case Lord Atkin laid down the general principle of foresee ability and proximity applicable in solving cases presenting the existence or otherwise of a new duty situation in the following words: You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor. Who, then, in law is my neighbor? The answer seems to be, persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplations as being so affected when I am directing my mind to the acts or omissions which are called in question. Whereas in Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd., it was held that the law will imply a duty of care when a party seeking information from a party possessed of a special skill trusts him to exercise due care and that a negligent, though honest, misrepresentation in breach of this duty may give rise to an action for damages apart from contract or fiduciary relationship. Duty of care also should have the principle of foreseeability and proximity. The case that could be referred is Madhya Pradesh Road Transport Corporation v. Basanti Bai. This case is about the driver of the appellant was stabbed by a ruffian while going to joint his duty in early hours of the morning. There was a communal riot in the city and the authorities had promulgated curfew order. The question before the Court was whether the appellant was negligent in not providing adequate arrangement for the safety of the deceased while he was going to join his duty. On applying the principle of foreseeability and proximity, the appellant were held liable. The second element of the tort of negligence is the misconduct itself, the defendants improper act or omission. Normally referred to as the defendants breach of duty, this element implies the preexistence of a standard of proper behavior to avoid imposing undue risks of harm to other persons and their

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ASSIGNMENT 6

SANGEETHA A/P ARJINAN

property, which circles back to duty.2 To determine whether there is a breach of duty, the court will take account of the following factors :i) the likelihood of harm; ii) the seriousness of the risk and the risk of serious injury; iii) the usefulness or importance of the defendants activity when the alleged negligence occurred; and iv) the relationship between the risk and the measures taken. For the likelihood of harm, case that can be referred is Bolton v. Stone. In this case, the plaintiff was standing on the highway when she was injured by a ball from the defendants cricket club. She failed in an action against the club, since the probability of such an injury was not foreseeable by a reasonable person because balls had only been hit outside the ground on six occasions in twenty-eight years. The seriousness of the risk and the risk of serious injury can be referred to Paris v. Stepney Borough Counci. The plaintiff was a one-eyed mechanic who was totally blinded while working under the defendants vehicle by a splinter of metal falling into his good eye. The court held that although it was not normal practice to provide goggles to normally sighted workers, a higher duty of care was owed to this one-eyed employee, and the plaintiff obtained damages. As for the social importance of the defendants activity at the relevant time, Watt v. Hertfordshire County Council case of can be referred. This case is about a fireman was injured by a jack falling from a lorry not equipped to carry such heavy equipment. The lorry was the only available transport to take the jack to the scene of an accident, where a woman was trapped in the wreckage. The local authority was held not liable. Lord Denning stated: one must balance the risk against the end to be achieved and the commercial end to make a profit is very different from the human to save life or limb.

David G. Owen, Professor of Law. Howstra Law Review. University of South Carolina.

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ASSIGNMENT 6

SANGEETHA A/P ARJINAN

For the relationship between the risk and the measures taken, the case of Latimer v. A.E.C. Ltd can be referred. In this case, an exceptional storm flooded a factory, leaving the floor covered with as limy mixture of oil and water. In spite of precautions to make the floor safe, the plaintiff was injured and alleged negligence for failure to close down the plant, but the court held that the risk did not justify such extreme measures. Last but not the least is the remoteness of damage. The negligent act of the defendant must cause damage to hold him liable for negligence. However there are cases where the claimant thinks that the defendants negligence has caused the damages but the law does not see it that way. For example, in the case of Hunter v. Canary Wharf Ltd and London Docklands Development Corporation (1997), there was a construction of a big tower block (a large business and shopping development) known as Canary Wharf in East London. Because of this construction, there was excessive dust in the area. The local residents sued the defendant, and one of the issues was whether excessive dust could be considered as damage to property. The Court of Appeal concluded that the mere deposit of excessive dust was not damage because dust is an unavoidable incident in urban life. There must some physical chance to property due to the dust before it can be considered as damage (for eg, dust causing damage to electrical equipment). It can be concluded that negligence is logically divisible into three main elements which are duty of care, breach of duty and remoteness of damage. Without any of these elements a defendant could be held liable for negligence.