NEGLIGENCE

Ujwal Nandekar
Negligence vs. Intentional Torts
Negligence differs from intentional torts in that the
actions are not caused by someone deliberately
wishing to cause harm

Intentional torts, by contrast, are matters such as

assault, false imprisonment, defamation, etc.
Elements of Negligence

Plaintiff is owed a duty of care

Defendant breached duty of care
Plaintiff suffered resulting harm or
loss
Duty of Care

“Duty of care” is proved through legal obligations

For example, if a mechanic neglects to tighten the

bolts on a repair of a car, causing a subsequent
accident or injury, the plaintiff (the driver) is owed a
duty of care, and the defendant (the mechanic) has
breached their duty of care
Duty vs. Standard of Care
A breach of duty of care can only be determined
(through negligence) by examining the expected
standard of care

Standard of care is determined through the test of

what a “reasonable person” would have done in
similar circumstances
Reasonable Person
Determining a “reasonable person” depends on a
number of factors:
today’s standards for people (by society)
professional standards (of conduct)
local standards (varying by community)
environmental factors at time
Summary: Proof of Negligence
1. Does the defendant owe the plaintiff a duty of
care?
2. Did the defendant breach the standard of care?
3. Did the defendant’s careless act cause the
plaintiff’s injury or loss?
4. Was there a direct connection between the
defendant’s action and the plaintiff’s injury or loss?
Was what happened foreseeable?
5. Did the plaintiff suffer actual harm or loss?
Murphy v Brentwood District Council
1990 2 All ER 908

A local authority negligently approved plans for the

construction of a house which had as a result had

defective foundations. There was not damage to other
property or to any person therefore the loss was only
economic and therefore not recoverable.
Department of Environment v
Thomas Bates & Sons Ltd. 1990 2
All ER 943

A building was constructed on piers which were

inadequate for the design load.

Held the remedial work was economic loss only and

therefore not recoverable.
Keepers of Dangerous Animals
Section 2(1) of the Animals Act 1971 states that

where damage is caused by an animal which

belongs to a dangerous species, any person who is
a keeper of the animal is liable for the damage.
The keeper of the animal is defined by the Act as
the following:
The owner is in possession
The head of the household if the owner is under 16
years old
An existing keeper who loses ownership or
possession, until there is a new keeper.
Animals ferae naturae: Those belonging to a
naturally violent, wild or dangerous species, such as
lions, tigers, bears, gorillas and elephants.

Animals mansuetae naturae: Those belonging to a

naturally tame, harmless and in most cases,
domesticated species, such as horses, donkey, cows,
sheep, goats, cats and dogs.
Nitin Walia v UOI AIR 2001 Del
140
Tigress was kept inside iron bars in the National
Zoological Park, Delhi

A child aged 3 years crossed the railing- tigress

grabbed the hand and crushed it- which had to be
amputated.

Zoo authorities were held liable: Not taking

precautions- wire mesh on iron bars.
May v Burdett 1846 9 QB 101
Monkey which defendant knew to be accustomed to
bite people- Bit the plaintiff- Defendant was held
liable.
Denman CJ: “whoever keeps an animal accustomed to attack
and bite mankind, with knowledge that it is so accustomed, is
prima facie liable in an action on the case at the suit of any
person attacked and injured by the animal, without any averment
of negligence or default in the securing or taking care of it. The
gist of the action is the keeping of the animal after knowledge
of its mischievous propensities. The negligence is in keeping such
an animal after notice”
Those belonging to a naturally tame, harmless and
in most cases, domesticated species, such as horses,
donkey, cows, sheep, goats, cats and dogs.
Knowledge of defendant
Single instance of ferocity of animal
Owner of animal appoints servant: Servant’s
knowledge of animal’s ferocity is considered as
knowledge of owner
Dog
Baker v Snell 1908 2 KB 352: Maid Servant

Prakash Kumar Mukherji v Harvey 1909 ILR 36

Cal 1021: Public Recreation-ground

Lennon v Fisher 1923 25 Bom LR 873: Chained

Dog

Fardon v Harcourt-Rivington 1932 48 TLR 215:

Dog in Car
Cat
Clinton v J Lyones & Co. 1912 3 KB 198

Cat had kittens- In a store room: escaped- Cat bit

dog later on plaintiff’s arm-

Defendants were not liable.

Buckle v Holmes 1926 2 KB 125

Cat strayed from its owner’s land into the land of

neighbor and killed fowls and pigeons kept there

Buckle sued Holmes claiming for the loss of 13

pigeons and 2 fowls

County Court Judge decided in favor of Holmes

and refused to order any compensation.
Buckle v Holmes 1926 2 KB 125
The reason for the judge’s decision was two-fold
namely:
(i) That the roaming character of cats was a
recognized habit and the custom was to allow them
to roam about freely. Consequently the
responsibility in law was on the owner to keep them
out of the way of cats and not the owner of the cat
to prevent him from attacking pigeons;
2. a cat attacking pigeons it was necessary to prove
scienter, the knowledge of a vicious propensity, before
the responsibility in law could be laid on the owner of
the cat. So liability would only arise if the cat
possessed a vicious proclivity which was known to the
owner.
Horse
Lowery v Walker 1911 AC 10

The Claimant was injured by a horse when using a

short cut across the defendant’s field. The land had
been habitually used as a short cut by members of
the public for many years and the defendant had
taken no steps to prevent people coming on to the
land. The defendant was aware that the horse was
dangerous.
The defendant was liable.
Whilst the claimant did not have express permission
to be on the land,
a licence was implied through repeated trespass
and the defendant’s acquiescence.
Fitzgerald v E D & A D Cooke
Bourne (Farms) Limited [1964] 1
QB 249
Diplock LJ:

It was suggested that the owner should be aware of

his animal’s “propensity to attack”, rather than the
animal’s mere propensity to be skittish or playful
which could lead to personal injury or other
damage.
Buffalo
Mungal Singh v Lehna Sing 1870 PR No. 72 of
1870

In a fight between two buffaloes, one was killed

Owner of buffalo was not liable
Negligence in keeping the animal.
Bull
Rands v McNeil 1955 1 QB 253

Dangerous Bull
De horned & untethered
Principle of Strict Liability for injuries caused by an
animal known to be dangerous did not apply where
the animal had been placed under control and had
not escaped.
Defendant was not negligent.