DR.

RAM MANOHAR LOHIYA,

NATIONAL LAW UNIVERSITY,
LUCKNOW
2017-18

FINAL DRAFT– LAW OF TORT

TOPIC- COMPONENTS OF
NEGLIGENCE
CLASS: B.A. LL.B (HONS), 2nd SEMESTER

SUBMITTED TO- SUBMITTED BY-

MR. ABDULLAH NASIR VISHAL KUMAR ARYA

ASSISTANT PROFFESOR OF LAW, ROLL NO- 163
DR. RMLNLU,LUCKNOW B.A.LLB(HONS.)SEM II

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 ACKNOWLEDGMENT

First of all, I would like to thank my teacher of the subject “Law of Tort”, Mr. Abdullah

Nasir , for providing every bit of help and also showing the way in which to proceed and how

to go about the project. I would also like to thank my parents, friends and others who helped

me immensely at every step and gave every possible bit of help that I needed in preparing the

project and making it look presentable in a good way. I would also like to thank the library

staff of RMLNLU who provided me with books that I needed in making and preparing the

project and other pieces of information and help that was required. At last I would like to

sincerely thank God who gave me the much needed strength and power to go ahead with the

project and make it in a presentable way.

VISHAL KUMAR ARYA

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 TABLE OF CONTENT
1. INTRODUCTION……………………………………………..4-7

2. COMPOPENTS OF NEGLIGENCE…………………………….8

2.1. DUTY OF CARE…………………………………………….8-9

2.2. BREACH OF DUTY..........................................................................10-12

2.3. DAMAGES...........................................................................................13-14

3. DEFENCE-CONTRIBUTORY NEGLIGENCE.....................................15
3.1. GENERAL PRINCIPLES.....................................................................15-16
3.2. LAST RULE OPPORTUNTY..............................................................16-18

4. LEADING CASE.....................................................................................19-20

5. CONCLUSION.........................................................................................20

6. BIBLIOGRAPHY......................................................................................21

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 INTRODUCTION
DEFINITION: Negligence is a failure to exercise the care towards others which
a reasonable or prudent person would do in the circumstances, or taking action
which such a reasonable person would not.

LEGAL DEFINITION: Negligent tort means a tort committed by failure to act

as a reasonable person to someone to whom s/he owes a duty, as required by
law under the circumstances. Further, negligent torts are not deliberate, and
there must be an injury resulting from the breach of the duty. Examples of
negligent torts are car accidents, slip and fall accidents, and most medical
malpractice cases.

The jurisprudential concept of negligence defies any precise definition. Eminent

jurists and leading judgements it is said have assigned various meanings to
negligence.1 The apex court in Mathew v. state of Punjab2, observed:
Negligence is the breach of duty caused by the omission to do something which
a reasonable man, guided by those considerations which ordinarily regulate the
conduct of human affairs would do, or doing something which a prudent and
reasonable man would not do. Actionable negligence consist in the neglect of
the use of ordinary care or skills towards a person to whom the defendant owes
the duty of observing ordinary care and skill, by which neglect the plaintiff has
suffered the injury to his person or property.
The definition involves three constituents of negligence:
1. A legal duty to exercise due care on the part of the party complained of
towards the party complaining the former’s conduct within the scope of the
duty.
2. Breach of the said duty
3. Consequential damage.
Negligence is accidental as distinguished from "intentional torts" (assault or
trespass, for example) or from crimes, but a crime can also constitute
negligence, such as reckless driving. Negligence can result in all types of
accidents causing physical and/or property damage, but can also include
business errors and miscalculations, such as a sloppy land survey. In making a

1
Jacob Mathew v. State of Punjab and another, A.I.R,2005 s.c.3180
2
Ibid, quoting Ratanlal and Dhirajlal, Law of torts, 2002, 441-42

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claim for damages based on an allegation of another's negligence, the injured
party (plaintiff) must prove: a) that the party alleged to be negligent had a duty
to the injured party---specifically to the one injured or to the general public, b)
that the defendant's action (or failure to act) was negligent---not what a
reasonably prudent person would have done, c) that the damages were caused
("proximately caused") by the negligence. An added factor in the formula for
determining negligence is whether the damages were "reasonably foreseeable"
at the time of the alleged carelessness. If the injury is caused by something
owned or controlled by the supposedly negligent party, but how the accident
actually occurred is not known (like a ton of bricks falls from a construction
job), negligence can be found based on the doctrine of res ipsa loquitor (Latin
for "the thing speaks for itself").

In the modern law of tort, the word negligence has two meanings. Firstly, it
indicates the state of mind of a party in doing act and secondly, it means a
conduct which the law deems wrongful. Originally the word was generally used
in its subjective sense as a particular mode of doing another wrongful act. In
this sense negligence means inadvertence or carelessness. It means
blameworthy inadvertence in the consequences of conduct insofar as a
reasonable man would have adverted to them.

Negligence in the sense of conduct refers to the behaviour of a person who,

although innocent of any intention to bring about the result in question, has
failed nevertheless to act up to the standards set by law, which is usually that of
a reasonable man. When a statue, prescribes a certain standard of behaviour
with a view to avoiding injury to persons, it has been said that the failure to
come up to that standard is statutorily equivalent to negligence, without proof of
carelessness.

Through civil litigation, if an injured person proves that another person acted
negligently to cause his injury, he can recover damages to compensate for his
harm. Proving a case for negligence can potentially entitle the injured plaintiff
to compensation for harm to their body, property, mental well-being, financial
status, or intimate relationships. However, because negligence cases are very
fact-specific, this general definition does not fully explain the concept of when
the law will require one person to compensate another for losses caused by
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accidental injury. Further, the law of negligence at common law is only one
aspect of the law of liability. Although resulting damages must be proven in
order to recover compensation in a negligence action, the nature and extent of
those damages are not the primary focus of negligence cases. Negligence suits
have historically been analysed in stages, called elements, similar to the analysis
of crimes. An important concept related to elements is that if a plaintiff fails to
prove any one element of his claim, he loses on the entire tort claim.

For example, let's assume that a particular tort has five elements. Each element
must be proven. If the plaintiff proves only four of the five elements, the
plaintiff has not succeeded in making out his claim.

Now, negligence has become an independent, specific tort itself. Although it is

cleared a mental element, still Judges in deciding whether a man is guilty of
negligent conduct or not apply an external standard and do not take into
consideration his real mental attitude at the moment of the act. Thus to
determine whether a particular driver has been negligent in driving his car along
the public road, or whether a doctor has been negligent in performing a
particular operation, they apply an external standard of a reasonable man placed
in similar circumstances.

If the Judge is of opinion that a reasonable man placed in similar circumstances

as the defendant would not have acted in that way and caused damage to the
plaintiff, then the defendant is liable. The reason for the application of this
external standard by Judges in England was due to increase of railway accidents
and other injuries from industrial machinery in that country during the
nineteenth century. Then it would be easy for even wilful wrongdoers to say
that they never intended to do any harm to any person, much less to the
particular plaintiff, it would never intended to do any harm to any person, much
less to the particular plaintiff, and it would be very difficult for the latter to
prove the mental state of such a defendant. The existence of a duty situation or a
duty to take care is thus essential before a person can be held liable in
negligence.
The conduct of a reasonable man as envisaged in English common Law
could be seen from the decision of Vaughan v. Menlove. The plaintiff had
some interested in certain cottages on land adjoining that on which the
defendant had erected a haystack. The plaintiff’s cottages were damaged by a
fire which had spread from the haystack which was insured. When the condition
of the stack, and the probable and almost inevitable consequence of permitting
it to remain in its then state were pointed out to him, he abstained from the
exercise of the precautionary measures that common prudence and foresight
would naturally suggest, and very coolly observed that he would change it. It
was manifest that he adverted to his interest in the insurance office.
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The defendant was held liable. Tindal, C.J. while rejecting the argument of the
defendant that he had acted bona fide to the best of his judgment and that should
be accepted, said thus: Instead, therefore, of saying that the liability for
negligence should be co-existence with the judgment of each individual, which
would be as variable as the length of the foot of each individual, we ought rather
to adhere to the rule which requires in all cases a regard to caution such as a
man of ordinary prudence would observe.

Lord Macmillan remarked thus in Glasgow Corporation. v. Muir:3 The

standard of foresight of the reasonable man eliminates the personal equation and
is independent of the idiosyncrasies of the particular person whose conduct is in
question. A reasonable man does not mean a paragon of circumspection. He can
be calm, cool, collected and is expected to take normal precautions for his own
safety even in an emergency.

In Poonam Verma v. Ashwin Patel the negligent doctor caused the death of a
patient by prescribing medicines of the discipline for which he was not
registered under the law. His negligence was held to be negligence per se which
is defined in BLACK LAW DICTIONARY as under: Negligence per se:
conduct, whether of act or omission, which may be declared and treated as a
negligence without any argument or proof as to the particular surrounding
circumstances, either because it is a violation of a statue or valid municipal
ordinance, or because it is so probably opposed to the dictates of common
prudence that it can be said without hesitation or doubt that no careful person
would have been guilty of it. As a general rule, the violation of a public duty,
enjoyed by law for the protection of person or property, so constitutes.

3
. (1943) A.C. 448, at 457.

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 2. COMPONENTS OF NEGLIGENCE

There are three components of negligence they are: Duty, Breach and Damage.
In law to constitute negligence, it must possess the following three conditions:
a) That the defendant owes to the plaintiff a legal duty to exercise care;
b) That the defendant was in ‘breach’ of that duty that is failure to exercise that
the ‘duty of care’ and
c) That as a result of breach, the plaintiff suffered damage.
Thus, in strict legal analysis, ‘negligence’ means more than needless or careless
conduct, whether in omission or commission. It connotes the complex concept
of duty, breach and damage suffered by the person to whom the duty owed.

2.1. DUTY OF CARE:

In law, there is no negligence unless there is in the particular case a ‘duty to
take care’. The duty of care is an essential element in civil wrong 4. Law does
not take cognisance of carelessness in the abstract. It concerns itself only when
there is a duty to take care and where failure of that duty has caused damage5.
The duty signifies that one must not interfere with the lawful act of another 6.
The duty of care performs two distinct functions. Firstly, if the claimant is to
succeed, it must be proved that the circumstances in which his damage or loss
was caused were capable of give rise a duty of care and secondly, the defendant
actually owed him a duty on the particular facts of the case. The first
requirement raises question of law while the second raises questions of mixed
law and fact7 .

a) Idea of Duty: The duty is not the sole factor to decide the question of
negligence, it has to be decided on some other grounds such as contributory
negligence, remoteness of damage, inevitable accident, violenti-non-fit injuria.
The critique states there are limits of action of negligence, which are nothing to
do with the things referred above .

b) Criteria of duty: The question how to determine there is or is not, a duty? It

is suggested that the task of the court is to follow the established precedent.
What is the alternative way of deciding the notion of duty, in the absence of
4
. Jolowiez JA, Ellis Lewis T and Harris DM , Winfield on Tort, 9th edition, London: Sweet and Maxwell 1971,
p 205
5
. (1932) AC 562.
6
. Jolowiez JA, Ellis Lewis T and Harris DM , Winfield on Tort, 9th edition, London: Sweet and Maxwell 1971,
p 205
7
. Ibid.

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relevant precedent? Under this situation, the court has to examine the
circumstances which warrant the existence of duty to be careful8. Is it the
general rule of law? It can be seen the first attempt to formulate a principle
made by Lord Brett MR in Heaven Vs Pender9 and Lord Atkin in Donoughe Vs
Stevenson10 that it is a ‘right of every injured person to demand relief ‘. This
rule implies that every one must take reasonable care to avoid acts or omissions
which he can reasonably foresee would be likely to injure his neighbour.
Neighbour is one who is so closely and directly affected by another’s act, this
rule is what is known as principle of “neighbour”.

c) Duty towards whom: It is not enough to prove circumstances which give

rise to a notion of duty, it is also necessary to establish that defendant owed a
duty of care towards him. The test for the existence of a duty owed to the person
is in substance, ‘neighbouring principle’ that is foresight of the reasonable
man11 . For this purpose all circumstances must be taken into account including
the sequence of events leading to the accidents12. It ia not mere sufficient to
prove that the injury to the claimant would have been foreseeable and it is also
not required that injured should necessarily be identifiable by the defendant13

2.2. BREACH OF DUTY:

Breach of duty means non-observance of due care which is required in a
particular situation. What is standard of care required? The standard is that of a
reasonable man or an ordinarily prudent man. If the defendant has acted like a
reasonably prudent man, there is no negligence. As stated by Alderson B. in
Blyth v. Birmingham waterworks Co.,14

“Negligence is the omission to do something which a reasonable man, guided

upon those considerations which ordinarily regulate the conduct of human
affairs, would not do, or doing something which a prudent and reasonable man
would not do”. The law requires the caution which a prudent man observes.
“We ought to adhere to the rule which requires in all cases a regard to caution
such as a man of ordinary prudence would observe…. The care taken by a

8
. Pollock F, Torts 11th edition, Oxford University Press 1967, p. 455.
9
. (1883)11 QBD 503, 509.
10
. (1932) AC 562.
11
. Ibid
12
. Woods Vs. Duncan (1946) AC 401.
13
. Supra note 9.
14
. (1856) II Ex. 781, 784, Smith v. L. And S.W. Rail Co., (1870) L.R. 5 C.P. 98 at p. 102; Bridges v. Directors,
etc of N.L. Ry., (1873-74) L.R. 7 H.L. 231, 233; Bengal Nagpur Railway Co. Ltd. V. Taraprasad Maity, (1926)
48 C.L.J. 45; Governor General in Council v. Mt. Saliman, (1948) Pat. 207.

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prudent man has always been the rule laid down”.15 The standard is objective
and it means what a judge considers should have been standard of a reasonable
man. “It is…left to the judge to decide what, in the circumstances of the
particular case, the reasonable man would have in contemplation, and what
accordingly, the party sought to be made liable ought to have foreseen.”16

Standard of care required

The law requires taking of two points into consideration to determine the
standard of care required:
a) The importance of the object to be attained –

The law does not require greatest possible care but the care required is that of a
reasonable man under certain circumstances. The law permits taking chance of
some measure of risks so that in public interest various kinds of activities
should go on.
” As has been pointed out, if all trains in this country were restricted to the
speed of five miles an hour, there would be fewer accidents, but our national life
would be intolerably slowed down. The purpose to be served, if sufficiently
important, justifies the assumption of the abnormal risk.”17 A balance has,
therefore, to be drawn between the important and usefulness of an act and the
risk created thereby.
Thus, a certain speed may not be negligent for a fire brigade vehicle but the
same speed may be an act of negligence for another vehicle

b) the magnitude of the risk-

The degree of care depends upon the risk involved in the act. The magnitude of
a risk can be determined with the help of two factors namely seriousness or
gravity of the injury risked and the likelihood of injury being in fact caused. The
relevance of seriousness of the injury was recognised by the House of Lord in
Paris Vs Stepney Borough Council18, the plaintiff who had only one good eye
was blinded in the course of his employment. He contended, he was entitled to
the remedy because the employer did not provide him with a goggle which was
in breach of his duty to take reasonable care of his safety. It was observed that

15
. Vaughan v. Menlove, (1837) 3 Bing N.C. 475.
16
. Glasgow Corporation v. Muir, (1943) A.C. 448, 457, per Lord MacMillan.
17
. Dabron v. Bath Tramways, (1946) 2 AII E.R. 333, 336; Wall v. Hertfordshire Country Council, (1956) 1
W.L.R. 835; Also see Quinn v. Scott, (1965) 1 W.L.R. 1004.
18
. (1951) AC 367.

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goggle should have been provided as the plaintiff risked the greater injury of
total blindness. As a reasonable and prudent employer, the defendant would
have known not only probability of an accident but also the gravity of the
consequences if an accident did occur. In addition to seriousness of injury, the
likelihood of injury should be considered in measuring/evaluating magnitude of
the risk. If the likelihood of injury to a person is so slight, failure to take
precaution against the injury would not be breach of duty. In Bolton Vs Stone19,
the plaintiff was standing on the highway road adjoining to cricket ground when
she was struck by a ball which had hit out of the ground, such an event was
foreseeable as it happened on three occasions. Nevertheless, taking into account
such factors as the distance from the pitch to the edge of the ground, the
presence of a seven foot fence and upward slope of the ground in the direction
in which the ball was struck, the House of Lord considered that the likelihood of
injury to a person in the plaintiff position was so slight, and allowing cricket to
be played without having taken additional precautions such as increasing the
height of the fence, was not negligent20 .

Thus, in assessing the magnitude of the risk, it is important to notice that duty of
care is owed to the plaintiff himself and the injury which exposes risk to the
plaintiff, should be known to the defendant. If it is unknown and not reasonably
known to the defendant, then it is irrelevant.

c) The amount of consideration for which services, etc. are offered-

The degree of care depends also on the kind of services offered by the defendant
and the consideration charged therefor from the plaintiff. For instance, one who
purchases a glass of water from a trolley in the street for 10 or 25 paise is
entitled to safe drinking water which should not ordinarily infect him. But if a
person purchases a mineral water bottle for Rs. 10/- or 15/-, then he can
justifiably demand higher degree of purity. The manufacturer of water bottle
cannot be heard to say that so long he has made it equivalent to trolley man’s
water, he has done his duty. Similarly, a patient a admitted to a luxury hospital
say for Rs. 3000 or Rs. 5000 a day would be justified in demanding higher and
sophisticated degree of care, comfort, convenience and recovery than merely
sterilization from infection as could be expected in the general ward of a
hospital.
In the same way. A person sipping a cup of tea at road side Dhaba for a rupee or
fifty paise may accept it as his luck if the chair offered to him collapses when he
19
. ( 1951) AC 850, 886-889, per Radcliff LJ.
20
. Ibid.

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sits on it, but a person paying Rs.50/- for a cup of tea at a five star hotel is
entitled to a safer chair and a better quality of tea. There should be no difference
between a five star hotel owner and insurer so far as the safety of the guest is
concerned.21

2.3DAMAGES

The third component of the tort of negligence is the claimant’s damage must
have been caused by the defendant’s breach of duty and must not be too remote
a consequence of it22. In case of breach of contractual duty, the amount of
damage will be assessed from the breach itself; in case of breach of duty not
founded on contract, the plaintiff has to prove that damage has been caused to
his person or property23. It is also necessary to prove that negligent act of the
defendant is the “direct and proximate” cause of the damage. If the causal
connection between the negligent act and damage is not direct, the damage is
too remote; there is no remedy at law. The defendant is not guilty of breach of
duty, when he has taken reasonable care as everyone is expected to take, the
damage would have occurred. In such a case, plaintiff is not entitled to any
remedy.24

Damages place a monetary value on the harm done, following the principle
of restitutio in integrum (Latin for "restoration to the original condition"). Thus,
for most purposes connected with the quantification of damages, the degree
of culpability in the breach of the duty of care is irrelevant. Once the breach of
the duty is established, the only requirement is to compensate the victim.
One of the main tests that is posed when deliberating whether a claimant is
entitled to compensation for a tort, is the "reasonable person". The test is self-
explanatory: would a reasonable person (as determined by a judge or jury) be
damaged by the breach of duty. Simple as the "reasonable person" test sounds, it
is very complicated. It is a risky test because it involves the opinion of either the
judge or the jury that can be based on limited facts. However, as vague as the
"reasonable person" test seems, it is extremely important in deciding whether or
not a plaintiff is entitled to compensation for a negligence tort.

Damages are compensatory in nature. A compensatory damage addresses a

plaintiff/claimant's losses (in cases involving physical or mental injury the
amount awarded also compensates for pain and suffering). The award should

21
. See Klaus Mittelbachert v. East India Hotels Ltd., A.I.R. 1997 Delhi 201, at 209, 210 ( Single Judge).
22
. Woods Vs. Duncan (1946) AC 401. At p. 83.
23
. (1954)2 QB 66.
24
. Ibid p. 158.

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make the plaintiff whole, sufficient to put the plaintiff back in the position he or
she was before Defendant's negligent act. Anything more would unlawfully
permit a plaintiff to profit from the tort.

Types of damage:-

 Special damages - quantifiable dollar losses suffered from the date of

defendant's negligent act (the tort) up to a specified time (proven at trial).
Special damage examples include lost wages, medical bills, and damage
to property such as one's car.

 General damages - these are damages that are not quantified in monetary
terms (e.g., there's no invoice or receipt as there would be to prove
special damages). A general damage example is an amount for the pain
and s….uffering one experience from a car collision. Lastly, where the
plaintiff proves only minimal loss or damage, or the court or jury is
unable to quantify the losses, the court or jury may award nominal
damages.

 Punitive damages - Punitive damages are to punish a defendant, rather

than to compensate plaintiffs, in negligence cases. In most jurisdictions
punitive damages are recoverable in a negligence action, but only if the
plaintiff shows that the defendant’s conduct was more than ordinary
negligence.

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 3. DEFENCE-CONTRIBUTORY NEGLIGENCE
Contributory negligence is a common law defense to a claim based on
negligence, an action in tort. It applies to cases where a plaintiff has, through his
own negligence, contributed to the harm he suffered. For example, a pedestrian
crosses a road negligently and is hit by a driver who was driving negligently.
Contributory negligence differs from contribution, which is a claim brought by
one tortfeasor against another to recover some or all of the money damages
awarded to the plaintiff.

3.1 GENERAL PRINCIPLES

In trying claim arising out of death or injury caused by negligence, the court
may be faced with a situation where both the parties were negligent in some
respect. The court is then to decide as to whose negligence caused the death or
injury. There are three possible answers to such a query depending upon the
circumstances of the case.
I. The defendant’s negligence alone caused the death or injury.

II. The deceased’s or the plaintiff’s negligence was solely responsible the
death or injury.

III. The negligence of both the parties caused the death or injury.

It is obvious that if the finding is that the defendant’s negligence alone caused
the death or injury, then the plaintiff would succeed even if the plaintiff or the
deceased was negligent in some respect. Similarly, if there is no difficulty in
holding that the plaintiff will fail if the deceased’s or his negligence was solely
responsible for the death or injury, as the case maybe even if defendant was in

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some respect was negligent. In the third case, where the negligence of both the
parties caused the death or injury, the common law rule was that the plaintiff
was to fail even if the defendant was more at fault. In other words, if the
deceased’s negligence contributed in some degree to the death or injury, the
defendant succeeded by pleading contributory negligence irrespective of the
fact that death or injury was largely caused by the defendant’s negligence. The
defence of contributory negligence means that the defendant or the plaintiff
failed to take the reasonable care of his own safety which was a material
contributory to his death or injury.25As the defence enabled the defendant to
escape completely even when he was more at fault, the courts were slow to infer
that the negligence of the plaintiff was a contributory factor.
3.2. THE LAST OPPORTUNITY RULE
The Courts devised the Last Opportunity Rule which meant that if the defendant
had the last opportunity to avoid the accident resulting in injury he was held
solely responsible for the injury in spite of the fact that the plaintiff was also
negligent.26This rule was further extended to cover cases of constructive last
opportunity.27 A more rational approach was made in cases involving maritime
collisions where the courts had the opportunity apportioning the damages under
the Maritime Conventions Act, 1911. In Admiralty Commissioners v. S.S
volute28 a collision had occurred between merchant ship volute and the
destroyer Radstock.

25
Municipal Corporation of Greater Bombay v Laxman Iyer,(2003) 8 SCC 731, p. 737.
26
Davies v. Mann : (1842) 10 M7W 546 : 62 RR 698 is often referred to as the originator of the rule though the
words ‘last opportunity’ do not occur there. The plaintiff in this case fettered the forefeet of his donkey and
turned it into a narrow lane. It was run over by a heavy wagon not properly looked after longing to the
defendant. The wagon was going a little too fast and was not properly looked after by the driver. In suit for
damages, the plaintiff succeeded as the defendant by using ordinary care could have avoided the accident even
though the plaintiff was also at fault in turning the donkey into the lane with its forefeet fettered.
27
British Columbia Electric Ry. V. Loach (1916) 1 AC 719
28
(1922) 1 AC 129:38 TLR 255:126 LT 425:66 SJ 156 (HL). The Maritime Conventions Act, 1911, applies to
India. Under this act where by the fault of two or more vessels, damage or loss is caused to one or more of them,
to their cargoes, or freight or to any property on board, the liability to make good the damage or loss shall be in
proportion to the degree in which each vessel was in fault, the liability shall be apportioned equally. Where loss
of life or personal injuries are suffered by any person on board of a vessel owing to the fault of that vessel and
any other vessels or vessel, the liability of the owner of the vessels shall be joint and several subject to any
defense which could have been pleaded to an action for the death or personal injury inflicted.

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The volute was at fault in changing her course without giving any proper signal
and the Radstock was at fault in increasing speed although she had the
knowledge of the danger caused by the change of course of Volute. It was held
that both the ships were responsible for the collision even though the last
opportunity for avoiding the accident was with the Radstock. The decision in
the case of Volute was followed by the HOUSE OF LORDS in a non-maritime
collision case and was regarded as one of general application.29 In this case a
crossroad collision between car and a motorcycle was occurred. Who was
negligent in this action was not clear. The HOUSE OF LORDS held that that it
was a sufficient direction. The defendant in this case while driving the car at
about thirty miles an hour along a main road, approached a point in the road
without keeping a proper look out or slowing down where it was crossed by a
side road, when a man driving a motorcycle came into the road into the side
road without warning and a collision occurred in which the motor cyclist was
killed. In a suit for the the damages filed by the widow of the deceased, the
defendant was not held liable under the common rule as the deceased was also
negligent. The case lays down that where the negligence of parties is
contemporaneous as so nearly contemporaneous as to make it impossible to say
that either could have avoided the consequences of others negligence, it would
be said that negligence of both contributed to the accident. Had it been a case of
maritime collision the court could have apportioned the damages as in case of
Volute. But the question of contributory negligence has all cases to be decided
on same principles.

The common law rule is that if the plaintiff’s or the deceased’s (in case of
death) negligence contributed in some degree to the injury or death, the action

29
American Main Line Ltd. V. Afrika, AIR 1937 PC 168

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failed, was illogical and its origin lay possibly in procedural and pleading
anomalies of the common law.30The Madhya Pradesh case of Vidya Devi
contains an elaborate discussion why the principle of English Act should be
followed in India even though there is no corresponding act in India.31The
Supreme Court without any reference to the English act, has held that “it is now
well settled that in case of contributory negligence, courts have the power to
apportion the loss between the parties as seems just and equitable.

32
In Municipal corporation grater Bombay v. Laxman Iyer , the
deceased who was riding a bicycle came from the left side and took right turn
contrary to traffic regulations. At that time he was hit by corporation bus which
was running at a moderate speed and the deceased was visible from a distance
of 30 feet. It was found that the deceased was negligent in taking a wrong turn
contrary to traffic regulations and the bus driver was negligent in not stopping
the bus by quickly applying the brakes and in omitting to blow the horn. The
deceased’s negligence was held to have 25% contributed to the damage and the
compensation was reduced to that extent.

30
LORD WRIGHT, 13 Modern Law Review 5; Vidyadevi v. M.P. State Road Transport Corporation,1974 ACJ
374 (MP) 89
31
Vidyadevi v. M.P. State Road Transport Corporation, supra : In this case there was
a collision between a bus and a motorcycle at a road intersection when the bus was
going on the main road and the motorcycle came from a side road. The person riding the
motor cycle was killed. In a claim for damages by the widow and the children it was
found that the bus driver was negligent in not having a proper look out while
approaching the intersection and the deceased was negligent as he was driving at
excessive speed while coming from the side road to the intersection.It was further held
that negligence of both the parties was liable for the accident but the motorcyclist was
far more to blame than the bus driver. The responsibility was apportioned in form of
two-third and one-third.

32
(2003) 8 SCC 731

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 The act applies when the plaintiff’s act contributes to the ‘the
damage’ and not necessarily to the accident which results in damage although in
most of the cases it would be so. Thus the damage would be reduced if a
motorcyclist involved in an accident and suffering a head injury did not wear a
crash helmet.33 It may be noticed that a omission to wear a helmet is not
negligence contributing to the accident but only to the damage suffered in the
accident. This example also illustrates that for being responsible for
contributory negligence the plaintiff need not be in breach of duty to the
defendant. The question simply is whether the plaintiff or the deceased had
failed to take reasonable care of his own safety which had contributed to the
damage.34 As observed by BALAKRISHNAN, J. “Negligence ordinarily
means breach of a legal duty to care, but when used in expression contributory
negligence it does not mean breach of any duty. It only means the failure by a
person to use reasonable care for the safety of himself or his property, so that he
becomes the ‘author of his own wrong’”

33
Oconell v. Jackson, (1972) 1 QB 270 : (1971) 3 A11 ER 129; (Damages were reduces by fifteen percent)
34
Sushma Mitra v. M.P. State Road Transport Corporation, 1974 ACJ 87 (MP) pp, 92, 95

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 4. LEADING CASE

DONOGHUE V. STEVENSON (1932)35

Facts
On the 26 August, 1928, May Donoghue and a friend were at a café in Glasgow
(Scotland). Donoghue's companion ordered and paid for her drink. The cafe
purchased the product from a distributor that purchased it from Stevenson. The
ginger beer came in a Dark bottle, and the contents were not visible from the
outside. Donoghue drank some of the contents and her friend lifted the bottle to
pour the remainder of the ginger beer into the tumbler. The remains of a snail in
a state of decomposition dropped out of the bottle into the tumbler. Donoghue
later complained of stomach pain and her doctor diagnosed her as having
gastroenteritis and being in a state of severe shock. Donoghue sued the David
Stevenson, the manufacturer of the drink, for negligence. She was unsuccessful
at trial and appealed the decision to the House of lords. Finally, her claim was
successful.
Issue
1. Does the defendant owe a duty of care to the plaintiff being as there is no
contract?

Held
In this case appeal allowed.

Reasons

35
(1932) A.C. 562

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The majority stated that the manufacturer does owe a duty of care to the end
consumer, for the purpose of their product is to be consumed, not to be sold to a
distributor.

Winterbottom v Wright does not apply in this case, for that case was about
breach of contract and this one was not
The absence of a contract between two parties does not mean that a duty is not
owed
Overall, the court found that inh cases like this where the manufacturers are
manufacturing goods for the eventual consumption of consumers, they do have
a duty to take reasonable care to ensure that their products are safe for
consumption.
You cannot knowingly foresee harming your neighbor. Neighbors are persons
who are reasonably foreseeable as being affected by your actions or omissions.
A duty of care is not owed to the world at large; it is owed to your neighbors.

Ratio
Manufacturers owe the final consumer of their product a duty of care (at least in
the instance where the goods cannot be inspected between manufacturing and
consumption). There need not be a contractual relationship, or privity, in order
for the final consumer to sue in negligence.

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 5. CONCLUSION

To conclude, Negligence is a fault based tort. To be successful in an action a

claimant must prove all of the earlier discussed criterions. Negligence, as is true
with all legal claims, is comprised of various “elements,” identifiable
components which draw together a cluster of related issues for analysis and
resolution. Too often, the elements of negligence are merely recited and not
explained. In formulating the elements here, this Idea can just scratch the
surface of each one, filling each with only elemental content. But the idea of
this Idea is quite modest: to identify and explain, compactly and conjointly, the
three elements of negligence, the most important tort. The law of negligence
requires that for any claimant to succeed, the court must be satisfied that the
defendant in question owed him a duty of care, that there was breach of duty by
the defendant and finally the claimant's damages were as a result of the breach.

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 6. BIBLIOGRAPHY
Primary sources
1. Basu, D. D., the Law of Torts, Kamal Law House, Kolkata, 2010.
2. Deakin, S., A. Johnston and B. Markesins, Markesinis and Deakin’s Tort Law, Oxford
University Press Inc., New York, 2003.
3. Pillai, P.S.A., Law of Tort, Eastern Book Company Publishing (P) Ltd., Lucknow, 2004
4. Bangia, R.K, Law of tort,Allahabad Law Agency, twenty-second edition, 2010
5. Lal, Ratan and Jatan.The Law of Torts. Wadhwa and Company : Nagpur

Secondary sources
Websites
1. www.lexisnexis.com/academics
2. www.manupatra.com
3. www.legalindia.com
4. www.parliamentofindia.com
6. www.indialawjournal.com
7. www.citeman.com
8. www.preservearticle.com
9. www. indiankanoon.org

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