MEANING: In everyday usage, the word negligence

denotes mere carelessness. In legal sense it signifies

failure to exercise standard of care which the doer as a
reasonable man should have exercised in the
circumstances. In general, there is a legal duty to take
care when it was reasonably foreseeable that failure to do
so was likely to cause injury. Negligence is a mode in
which many kinds of harms may be caused by not taking
such adequate precautions.

DEFINITION:
WINFIELD AND JOLOWICZ: 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 [Ref. Winfield and Jolowicz on Tort, Ninth
Edition, 1971, p. 45].

In Blyth v. Birmingham Water Works Co., (1856) LR 11

Exch. 781; ALDERSON, B. defined negligence as,
negligence is the omission to do something which a
reasonable man.. Would do, or doing something which
a prudent or reasonable man would not do.
In Lochgelly Iron & Coal Co. v. Mc Mullan, 1934 AC 1; LORD
WRIGHT said, 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 owing.

1.

Duty of care to the plaintiff

It means a legal duty rather than a mere moral, religious

or social duty. The plaintiff has to establish that the
defendant owed to him a specific duty to take care of
which he has made a breach. There is no general rule of
defining such duty, it depends in each case whether a duty
exists or not.
In Donoghue v. Stevenson , a company manufactured
ginger beer. The beer was put in an opaque bottle which
was sold to retailers. A purchased a bottle from the
retailer and gave it to his lady friend. She poured some of
the contents in a tumbler and consumed the same. When
the remaining contents of the bottle were poured into the
tumbler the decomposed body of a snail floated out with
the ginger beer. She had a shock and fell ill. She filed a
case claiming compensation against the manufacturer for
negligence. The House of Lords held that the
manufacturer owed a duty to take care that the bottle did
not contain noxious matter and that he was liable for the
breach of the duty.

In Ishwer Devi v. Union of India , one Shamlal Malik, the

deceased boarded one bus when the same arrived at the
bus stop. Just when he had placed his foot on the foot
board of the bus and had not yet gone in, the conductor
rang the bell and the driver started the bus. The driver
made an attempt to overtake another stationary bus
closely that the deceased got squeezed between the
buses and sustained serious injury which ultimately result
in his death. In an action the court held that both driver
and the conductor were rash and negligent in taking
proper care of the safety of the passengers.

Whether the defendant owes a duty to the plaintiff or not

depends on reasonable foreseeability of the injury to the
plaintiff. If at the time of the act or omission, the
defendant could reasonably foresee injury to the plaintiff
he owes a duty to prevent that injury and failure to do
that makes him liable.
In Donoghue case it was held that you must take
reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your
neighbor. Then the neighbor defined as persons so
closely and directly affected by my act that I ought
reasonably to have them in contemplation as being so
affected when I am directing my mind to the acts or
omissions which are called in question.
In Grant v. Australian Knitting Mills Ltd. , the defendants
were manufactures of swimming suit. They dispatched the
swimming suits in paper packets to retailers. The plaintiff
bought one packet and used for swimming. She
contracted a skin disease by the use of this suit. The

cause was traced to the use of certain chemicals in the

process of manufacture. The question was whether the
manufacturer was liable to the ultimate user. By applying
the foreseeability test the Privy Council held that since
the defect existed at the point of manufacture itself there
was breach of a duty owed to the ultimate user and
upheld the tortious liability of the manufacturer
In Cates v. Mongini Bros , the plaintiff a lady visited to a
restaurant was injured by the falling of ceiling fan on her.
The reason for the falling of the fan was a latent defect in
the metal of the suspension rod of the fan. The defect
could not have been discovered by a reasonable man. In
an action against the defendants, who were running the
restaurant, it was held that since the harm was not
foreseeable they were not negligent and therefore were
not liable for the loss to the lady plaintiff.
Reasonable froeseability does not mean remote
possibility:
In Fardn v. Harcout-Rivington , the defendant parked his
car by the road side and left a dog inside the car. The dog
jumped about and smashed a glass panel. A splinter from
this glass injured the plaintiff while he was walking past
the car. It was held that the accident being very unlikely,
there was no negligence in not taking a precaution against
it and therefore the defendant was not liable. Lord
Dunedin said that, if the possibility of danger emerging is
only a mere possibility which would never occur to the
mind of reasonable man, then there is no negligence in
not having taking extra ordinary precautions. People must
guard against reasonable probabilities but they are not
bound to guard against fantastic probabilities.

Duty must be owed to the plaintiff: Mere carelessness on

the part of the defendant does not entitle the plaintiff to
sue him; it has to be proved that the defendant owed a
duty of care to the plaintiff. When the defendant owes a
duty of care to persons other than the plaintiff, the
plaintiff cannot sue even if he might have been injured by
the defendants act.
For e.g. in Palsgraf v. Long Island Railroad Co ., a
passenger carrying a package was trying to board a
moving train. He was seemed to be unsteady as if about to
fall. Two servants of the defendant came forward to help
the passenger and one of them, a railway guard pushed
the passenger from behind to help him to get into the
train. In the act the package in the possession of the
passenger was dislodged and fell upon the rails. The
package contained fireworks and its fall resulted in an
explosion. The package was small and nature of its
content could not be noticed from its appearance. Due to
this explosion one lady got injured. She sued the
defendant alleging negligence on the part of their
servants. The court held that the conduct of defendants
guard was a wrong in relation to the holder of the
package, was not a wrong in its relation to the plaintiff,
standing far away. Relatively to her it was not negligence.
2.

Breach of duty

In an action for negligence the plaintiff must prove that

defendant committed a breach of duty to take care.
Breach of duty here means non-observance of due care
which is required in a particular situation. If the defendant
has not acted like a reasonably prudent man there is
breach of duty. The law does not require greatest possible
care but the care required is that of reasonable man under
circumstances. What may amount to breach of duty of

care in a particular place and occasion may not be a

breach of duty of care in another place or occasion. Thus a
certain speed may not be negligence for a fire brigade
vehicle but the same speed may be an act of negligence
for another vehicle. It was also held in Blyth v.
Birmingham Waterworks co , negligence is the omission to
do something which 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.
In KSEB v. Suresh Kumar , a minor boy came in contact
with overhead electric wire which had sagged to 3 feet
above the ground got electrocuted and received burn
injuries. The electricity Board had a duty to keep the
overhead wire 15 feet above the ground. So the board was
held liable for the breach of its statutory duty.
In Glasgow Corporation v. Taylor , a public garden was
under the control of the defendants corporation. In the
garden there was a poisonous tree. The fruits of the tree
looked like cherries. A child aged seven ate those fruits
and died. It was found that the shrub was neither properly
fenced nor noticed regarding the deadly character of the
fruit was displayed. It was therefore held that the
defendants were liable for breach of duty of care.

3.

Damage

The third ingredient of the tort of negligence is that the

plaintiffs damage must have been caused by the
defendants breach of duty and not due to any other cause.
The general rule is that in an action of negligence the
burden of proof is on the person who complaints

negligence. He must show that he was injured by an act or

omission for which the defendant is liable. There must be
proof of some duty owed by the defendant, breach of that
duty and consequent damage suffered by the plaintiff.
RES IPSA LOQUITOR.
The rule that it is for the plaintiff to prove negligence of
the defendant may cause hardship to the plaintiff if it is
impossible for him to know what precise acts or omissions
lead to his injury or damage and this is most obviously so
where the cause of the damage is peculiarly within the
means of knowledge of the defendant who caused it. In
these circumstances this hardship can be avoided by the
application of the maxim res issa loquitor.
Though as a general rule the plaintiff has to discharge the
burden of proving negligence on the part of the
defendant, there are however certain cases when the
plaintiff need not prove that the defendant was negligent.
The negligence of the defendant under such
circumstances would be inferred from the facts on the
basis of the maxim res ipsa loquitor, which means the
thing speaks for itself. When the accident explains only
one thing and that is the accident could not ordinarily
occur unless the defendant had not been negligent, the
law raise a presumption of negligence on the part of the
defendant. Then the burden of proof is shifted from the
plaintiff to the defendant and the defendant has to prove
that he was not negligent.
Winfield sated that there are two requirements for
applying the maxim res ipsa loquitor a) that the thing
causing the damage be under the control of the defendant
or his servants b) that the accident must be such as would
not in the ordinary course of things have happened

without negligence. For e.g. in Asa Ram v. Muncipal

Corporation, Delhi , due to uninsulated overhead electric
wire becoming lose death of plaintiff son was caused by
electrocution. It was found that inspite of previous
complaints the Electricity Board had failed to take due
care. The presumption of negligence was raised and the
parents of the deceased who was held entitled to get
compensation.
In Jasbir Kaur v. State of Punjab , a newly born child found
missing from a bed in Government run hospital. He was
stated to have been carried away by a cat and he was
found perfusily bleeding in a bathroom with one eye
completely gouged out. A presumption of negligence was
raised against the hospital authorities and they were held
liable to pay compensation.
The maxim res ipsa loquitor applies when the only
inference from the facts is that the accident could not
have occurred but for the defendants negligence. If from
the facts two inferences or different inferences possible
then this maxim will not apply to such cases. It was so
held in Walkein v. London and South Western Rly Co .

See
Madhavi v. Karan 1971 KLT 63
Syad Akbar v. State of Karnataka AIR 1979 SC 1848