Author : Siddhi Gupta, Student at Symbiosis Law School, Hyderabad
INTRODUCTION
In a layman’s language term “negligence” means nothing but just carelessness. In legal sense this term highlights the failure to perform the basic duty which the person is duly bound to perform it in all the situation. Negligence is a mode in which many types of injury may be cause to the person. According to Winfield “negligence is the breach of a legal duty to take care which results in damages, undesired by the defendant to the plaintiff”. There are various essentials of the negligence tort which the author will be discussing in the research work. Consequent damage is an important element of negligence in the law of torts. The harm may fall under physical harm, harm to reputation, harm to property, money or economic loss, mental harm or nervous shock. Negligence has been characterized into three types:
- Nonfeasance
- Misfeasance
- Malfeasance
Civil negligence occurs when a person fails to exercise ordinary care or due diligence and the conduct may not be seen as a radical departure from the way a reasonable person would have responded. The author will deeply analysis the concept of negligence and also Nepal Food Corporation v. Upt Imports Exports Ltd. & Anr. The essentials of negligence are duty of care, the duty must be towards the plaintiff, breach of duty to take care, actual cause or cause in fact, proximate cause, consequential harm to the plaintiff.[1] It is considered to be a type of circumstantial evidence which permits the court to determine that the negligence of the defendant led to an unusual event that subsequently caused injury to the plaintiff.
SCOPE OF THE STUDY
The focus of this study is to put light on the aspect of the NEGLIGENCE under the law of torts along with the remedies available. The topic of negligence, will be dealt with in detail. The remedies for such acts of violation of rights shall also be discussed. The researcher will analysis the case law Nepal Food Corporation v. Upt Imports Exports Ltd. & Anr.
RESEARCH METHODOLOGY
The researcher has framed this work using Doctrinal Method. Descriptive and analytical study has been used in writing this research paper. Reference has been made from secondary sources like books, journals and articles and online websites. All the sources have been duly acknowledged. Doctrinal method involves consolidation of ideas and abstract in a systematic way and reference is been taken by the secondary sources of data. The use of primary data is also there in finding out the particular sectors where this problem prevails. The researcher has also used the empirical method of research by gathering information of various theories and types of negligence and finding out statistic regarding the issue also an analysis will be done on the issue of NEGLIGENCE as a tort in law of Torts..
LITERATURE REVIEW
The primary source for this research are the books available on the concerned topic. The books referred are “The Law of Torts” by Ratanlal and Dhirajlal, “Law of Torts” by N.V. Paranjape and “Law of Torts (With Consumer Protection Act and Motor Vehicles Act)” by J. N. Pandey. They helped in developing a basic understanding of the concept and provided valuable information with respect to the same.
The secondary sources for this research are the journal articles, web blogs and online websites which throw light on the respective topic. There is ample of information available regarding the negligence under law of torts but there is less information with respect to the case law under the law of torts. There is more need of research and work in the field of analysing the case.
- “Negligence.” The International and Comparative Law Quarterly 20, no. 1 (1971): 149-52.
In this article Negligence was defined in torts by the case of Blyth v. Birmingham Water Works Co. which is regarded as the landmark case for the concept of Negligence and also rights and liabilities to the accused persons suffering imprisonment. In the case it has been defined as the omission to do some act which in a reasonable person would do or in case suffices to do something which a man of reasonability consciousness would not do in a situation.
- Calvert, H. G. “Negligence.” University of Malaya Law Review 1, no. 1 (1959): 150-51.
This article gives a wider scope of Negligence in law of torts which tells that it is an actionable wrong which 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 to his person or property. It also mentions that negligence is omission to duty to take care which a reasonable man would do to reduce the harmful result of the act done which is called negligence in law of torts.
- Winfield, Percy H. “Duty in Tortious Negligence.” Columbia Law Review 34, no. 1 (1934): 41-66.
In this article elements necessary for the act of negligence has been explained with cases which helped the researcher in more through understanding of the topic and also helped in analyzing the given case law in which principle of negligence in law of torts is prevalent. It mentions about the major element in the negligence is duty which means an obligation of one person to another, which flows from millennia of social customs, philosophy, and religion. It also talks about the nature of duty that is duty constrains and channels behavior in a socially responsible way before the fact and it provides a basis for judging the propriety of behavior thereafter.[2]
- Murphy, John. “Misfeasance in a Public Office: A Tort Law Misfit?” Oxford Journal of Legal Studies 32, no. 1 (2012): 51-75.
This article talks about the concept of misfeasance under negligence as a part of law of tort. It explains misfeasance as regarded as those actions which should have done properly in case using props by method of doing an act with a reasonability conscience and the person doing it does not do it properly. This has helped the researcher gather more information regarding the type of negligence and making it research more deeper and wider in the concept of negligence.
- Drozdowski, Raymond F. “COMPARATIVE NEGLIGENCE—ITS IMPACT IN CROSSING ACCIDENT CASES: A PLAINTIFF’S PERSPECTIVE.” The Forum (Section of Insurance, Negligence and Compensation Law, American Bar Association) 17, no. 3 (1982): 866-69.
This article explains the comparative analysis of negligence in the law of torts and also talks about the impact of the incidents having because of tortious act. It tells the liability arising after the tortious act is being committed and explains the quantum of damages to be paid to the effected party because of the tortious activity committed by the offender.
- Nolan, Donal. “VARYING THE STANDARD OF CARE IN NEGLIGENCE.” The Cambridge Law Journal 72, no. 3 (2013): 651-88.
- Winfield, Percy H. “Duty in Tortious Negligence.” Columbia Law Review 34, no. 1 (1934): 41-66.
- Murphy, John. “Misfeasance in a Public Office: A Tort Law Misfit?” Oxford Journal of Legal Studies 32, no. 1 (2012): 51-75.
This article explains the peculiarities of the tort of misfeasance in a public office from the view of two popular people, contemporary theories of tort law: the rights-based theory of Robert Stevens, and the corrective justice theory of Ernest Weinrib. It also finds out four significant problems of fit for these theories. In this article it is argued that oddities are not unique to the tort.
RESEARCH OBJECTIVES:
- To deeply analysis the topic of negligence and law of tort.
- To trace about the various case related to the negligence.
- To suggest or to deduct stringent ways in which such violations can be controlled or restricted.
- To analysis the present case assigned for the case comment.
CASE ANALYSIS: Nepal Food Corporation v. Upt Imports Exports Ltd. & Anr.
PLAINTIFFS: UPT IMPORTS EXPORTS LTD. AND ANR.
DEFENDANTS: NEPAL FOOD CORPORATION
DECIDED: 10 APRIL 1987
CITATION: AIR 1988 Cal 283, 1988 (16) ECC 29
JUDGES: B.L JAIN
MAIN BODY
It has been known that the Law of Torts is based on the English common law, and the rule related to the Negligence and further concepts had been developed and established in India. The concepts though of nature which can be categorized in two parts which have the origin in England and others are of those whose credit goes to India and hence the cases and their judgments are primarily depends on that. In India the principles of Equality, Justice, and good conscience are followed as the basic principles before any law (even they’re codified under constitution or not) established in the legislature system of India. The term Negligence has the meaning which bounds by the Morality principles much and its application in legal world has a different interpretation.[3] In a general sense, it can be understood as those acts which suffices the by the carelessness by the defendant hence over the careless act the plaintiff suffers damages and defendant has to make sure the fulfillment of the same by various ways as established under law. And on the other side, by the legal terms it signifies to the failure to maintain or exercise a standard of care which on other side the accused person acting as the reasonable man should have done it in a particular situation.[4] The concept of Negligence in the English law has been emerged as the way of Independent cause of action developed in the 18th century. On the same verge or line, in the context of Indian law, The IPC of 1860 provides no provision of the cases when the death of a person is caused by negligence which was later on changed by amending the IPC in 1870 by the inclusion of section 304A. Hence the drive to include necessary provisions even though the existence was not there initially when that particular act was passed.
Negligence was defined in torts by the case of Blyth v. Birmingham Water Works Co. which is regarded as the landmark case for the concept of Negligence and also rights and liabilities to the accused persons suffering imprisonment. In the case it has been defined as the omission to do some act which in a reasonable person would do or in case suffices to do something which a man of reasonability consciousness would not do in a situation[5].
The principle of Negligence can be further categorization into three parts[6]:
- NONFEASANCE
- MISFEASANCE
- MALFEASANCE
- Nonfeasance:
It regarded as those acts which a person in a reasonability time and situation should have done but fail to do so.
For Example -Failure to carry out the repairing job of an old building.
- Misfeasance:
It regarded as those actions which should have done properly in case using props by method of doing an act with a reasonability conscience and the person doing it does not do it properly.
For Example: Repairing job done of an old building but using material of cheap and bad quality.
- Malfeasance:
These are those acts which are of primary reluctance and the acting of these words must not have done in first place. The importance of reluctance of these acts are of must instance.
For Example: Things that are of combustible in nature and are dangerous at first instance. Hard Chemicals in Schools is a good example.
According to Winfield and Jolowicz, “Negligence is termed as a breach of the legal duty to take care which results in damage, undesired by the defendant to the plaintiff”.[7] Negligence in layman’s language can be termed as carelessness and in legal sense it is explained as duty to take due care when it can be forseen. Also, in the case of Blyth v. Birmingham Water Works Co[8], negligence was defined by the Alderson as omission to do something which a reasonable man would do or would omit to do something[9]. Negligence in law of torts is an actionable wrong which 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 to his person or property[10]. Charlesworth says that the negligence as a breach of duty to due care.
THEORIES OF NEGLIGENCE IN LAW OF TORTS:
There are two different ways and views regarding the characterization of the negligence in the law of torts[11]. This has been characterized as theories of negligence. The subjective theory of negligence in torts says that the negligence is the state of mind which induces a person to commit a wrongful act which is a tort. The objective theory of negligence in law of torts is that negligence not as a mere ‘state of mind’ but it is the conduct which should be treated as an individual tort in itself.
- SUBJECTIVE THEORY OF NEGLIGENCE:
The subjective theory of negligence in the law of torts has been supported and approved by Salmond and Austin. Salmond terms negligence as “ culpable carlessness” and Austin also gives its definition of negligence as “state of mind” which leads to rise in tortious acts and such acts are being protected by awarding damages to the person effected. The subjected theory of the negligence is also supported by Winfield and he says that negligence is a mental element and the significance of negligence is usually total or partial inadvertence of the defendant to his conduct and the consequences which follows this inadvertence.
- OBJECTIVE THEORY OF NEGLIGENCE:
The objective theory of negligence in law of torts discards the subjective theory of negligence in law of torts as it states that negligence is not mere state of mind or any form of mens-rea but it is a specific conduct which is done and consists of omission of duty to due care and that act leads to tortious liability towards the other party. Fedrick Pollack was also in favor if the objective theory of negligence as he states that “negligence is contrary to diligence, and no one describes diligence as a state of mind”. He also describes negligence as duty to take care, in which he further mentions that taking care is doing things with precautions so that there is no harmful effect or consequences to that act of a person. According to him law should have a certain amount of care which stands reasonable is the circumstances of the case and also does not lead to any harmful results of the act. In the case of Vanghan v. Menlove[12], the defendant was warned about his haystock was overheated and can catch fire which might cause damage to the surrounding but he paid he no attention and just ignored it and moved away. But accidently the haystock caught fire and the it caused alot of damages to the surroundings and hence the defendant was made liable for the negligence which occurred because of his tortious act and also, he had a duty to take care he failed to do causing harm and damage to the surroundings. In the case of Lochgelly Iron and Coal Company v. M. Mullan[13]. Negligence is explained as a duty to take care is a specific tort in itself and not simply an element in some more complex relationship or in some specialized breach of duty.[14]
IRAC OF THE CASE: Nepal Food Corporation v. Upt Imports Exports Ltd. & Anr.
PLAINTIFFS: UPT IMPORTS EXPORTS LTD. AND ANR.
DEFENDANTS: NEPAL FOOD CORPORATION
DECIDED: 10 APRIL 1987
CITATION: AIR 1988 Cal 283, 1988 (16) ECC 29
JUDGES: B.L JAIN
ISSUE:
- Whether Order 41 Rule 5 of CPC demands defendants to objectify facts of its true nature in the appellant court.
- Whether the parties to the cause of negligence requires documents to inherit from the court of appeal.
- Whether the petition on the grounds of mentioned in paragraphs 110 and 111 satisfies order of the court by the provision Order 41 Rule 5.
RULE:
- Negligence: It refers to omission to do something which by a reasonable man’s conscience would do, or something which the same reasonable or the prudent would not do the same omission or act. (Blyth Vs. Birmingham Water Works Co., AIR 1856 11 Ex Ch 781)
- Order 41 Rule 5 of CPC: The provision makes it clear that an appeal shall not be in a state of operation as in the form of stay of proceedings of a particular decree or any operation of law and execution of the respective decree has been passed in the form of appeal. (Central Bank of India V. State of Gujarat & Ors, AIR 1988 1 SCR 106)
ANALYSIS:
The case of negligence regulates several provisions of law and deems itself being not codified in the Indian legal system. In the respective case mentioned, the plaintiff’s appeal to the HC of Calcutta and the demand of Rs. 1,55,43,584 from the defendants by the careless delivery of Rice to the wrongful owner of the Mill. The Nepal Food Corporation projects the delivery by strictly mentioning the timing and place of the delivery in the guidelines signed between the parties. The damage suffered by the Plaintiff also be able to get the interest over the damaged goods and the court rejected the appeal by reciprocating the already given judgment of the Thailand Court. The Negligence proved against defendant No.1 by not making the payment to the correct party. The concept of Negligence provides of the ways to make the accused person to apprehend the situation by a reasonable and conscious mind.
CONCLUSION
In the case mentioned, the granting of stay of operation to that particular effect of decree appealed against the provisions, three situations will be available to make neutrality in the applicability of the provisions: Which is sub-rule (3) of Order 41 Rule 5 must in a state to make the parties satisfied with the judgment. In the case, the decree holder is entitled to reap the benefits arising out of the decree made by the court. The reason can be varied by the fact that the appeal made has been preferred back to the Decree made hence the negligence part with respect to Defendant No.1 is vague to decide at the first instance. The reasonable clause in the decree made by the Calcutta High Court is merely because of the fact that the plaintiff had rejected the appeal to the higher court of appeal, this made Rule 5 Order 41 impossible to apply to the effect. These are the mandatory provisions that made the decree-holder more responsible to the rights and liabilities suggested by the court of law. Furnishing of security on part of Defendant No.1 to the wrongful owner of the goods denied by the court reconditions were projected onto the plaintiff for any damage suffered while the period of delay of good to the port of Calcutta. The judgment-debtor restitution suggested the conditions to apply Order 41 Rule 5 by the competent court. The laid down principle of negligence provided damages to the concerned plaintiff and the execution part remained on part of Defendant’s wrongful acts made both defendant no.1 and no.2 liable for the charge of negligence.
ESSENTIALS FOR NEGLIGENCE UNDER LAW OF TORTS:
The plaintiff has to prove certain elements of the tort of negligence for succeeding in action against the defendants:
- The duty of care to the plaintiff
- Breach of duty
- Damages being suffered by the plaintiff.
Therefore, the three main essentials in negligence under law of tort is duty, breach of duty and damages being suffered.
- DUTY OF CARE TO THE PLAINTIFF:
The core ingredient of the tort of negligence is “DUTY”[15]. If a person owes a legal duty towards any other person then that person can be held liable for the tort of negligence[16]. The reasonable foreseeability is the basis on which the test of negligence can be tested that whether the person can be held liable or not for the tort of negligence, or whether that person owes a duty towards the plaintiff[17]. In the case of Donoghue v. Stevenson[18], it was held that the person must take reasonable care to avoid acts or omissions which can be reasonably foreseen are likely to injure the plaintiff. In this case there was a purchase of beer bottle from a retailer by the plaintiff from which half of the contents were consumed and later when she was pouring the rest of the beer into the glass she found that there was a decomposed snail floating in the bottle of the bottle which she has already consumed and then she complained of being suffering from gastro infections due to the consumption of the contaminated beer and also this beer was in an opaque bottle so the plaintiff could not see the decomposed snail in the bottle. The plaintiff sued the manufacturer for damages as the result she has to suffer from these gastro infections. The house of lords said that the manufacturer owed a duty of care towards the customers and there was a breach of duty on the part of the manufacturer and he is liable for awarding damages to the plaintiff.[19]
2. BREACH OF DUTY:
The plaintiff should not only prove that the defendant owes a duty towards the plaintiff but he is liable for the breach of the duty which he has committed against the plaintiff[20]. In the case of Phillips v. William Whiteley Ltd[21]. it was held that goldsmith piercing ear is not bound to take certain precautions and a surgeon is bound to take certain reasonable care but, the court held that the goldsmith is also expected to take reasonable precautions as it falls under its duty to take care.[22]
3. DAMAGES BEING SUFFERED:
When the plaintiff proves that the was a duty to take care by the defendant and there is a breach of duty from the side of the defendant, along with this the plaintiff has to prove that he has suffered some damages consequent to the defendant’s negligence[23]. The facts and circumstances of the case are the basis to decide the quantum of damages to which the plaintiff is awarded is decided by the court[24]. The damage caused to the plaintiff should not be too remote, that is there should be reasonable proximity between the act of negligence and the resultant damages.[25]
CONCLUSION:
The rule of negligence has been repeatedly defined by the due explanation already been given in the case of Lochgelly Iron & Coal Co. Vs. Mc Mullan, AIR 1934 AC 1. The definition given in the case projected only the descriptive part of the concept and provided further definitions over the same rule. The case of Nepal Food Corporation Vs. UPT Import Exports Ltd & Anr secured the availability of remedies to the accused persons but the case inflicted many such provisions by making the concept codified in the UK. In the case paragraphs, 110 and 111 of the petitions demanded the reading of Order 41 Rule 5 of CPC and regulation of sub-section 3 are mandatory to the facts and circumstances are given in the case The hypothesis inherited in the case is objective demands the reading of the concept of negligence and Order 41 Rule 5 of CPC together and requires the plaintiff to have the protection of rights and liabilities which he had before the damage suffered by defendant no.1. Therefore, the conclusion suggests the operation of law is fundamental in its effect and requires the parties deemed fit to opposition follow inherited provisions of law.
FOOTNOTES
[1] E. M. T., and S. W. H. “Tort. Negligence. Duty to Take Care Independently of Contract. Humphery v. Bowers. (1929) 45 T. L. R. 297.” The Cambridge Law Journal 4, no. 1 (1930): 76-77.
[2] This section draws from David G. Owen, duty rules, 54 VAND. L. REV. 767, 767-79 (2001).
[3] Drozdowski, Raymond F. “COMPARATIVE NEGLIGENCE—ITS IMPACT IN CROSSING ACCIDENT CASES: A PLAINTIFF’S PERSPECTIVE.” The Forum (Section of Insurance, Negligence and Compensation Law, American Bar Association) 17, no. 3 (1982): 866-69
[4] Matthews, M. H. “Negligence and Breach of Statutory Duty.” Oxford Journal of Legal Studies 4, no. 3 (1984): 429-33
[5] Weir, J. A. “Negligence. Duty of Care. Foreseeability.” The Cambridge Law Journal 22, no. 1 (1964): 23-25.
[6] Murphy, John. “Misfeasance in a Public Office: A Tort Law Misfit?” Oxford Journal of Legal Studies 32, no. 1 (2012): 51-75
[7] Winfield and Jolowicz on Tort, ninth edition,1971, p.45
[8] (1856) LR 11 Exch. 781
[9] Donoghue v. Stevenson, (1932) AC 562
[10] Heaven v. Pender, (1883) 11 QBD 503
[11] Calvert, H. G. “Negligence.” University of Malaya Law Review 1, no. 1 (1959): 150-51.
[12] (1837) 3 Bing NC 468
[13] (1934) AC 1(25)
[14] Grant v. Australian nitting Mills Ltd, (1936) AC 85SS
[15] Winterbottom v. Wright, (1842) 10 M&W 109
[16] Home Office v. Dorset Yacht Co. Ltd. (1970)
[17] Ramesh Kumar Nayak v. UOI, AIR (1994) Ori 279
[18] (1932) AC 562
[19] Winfield, Percy H. “Duty in Tortious Negligence.” Columbia Law Review 34, no. 1 (1934): 41-66.
[20] Sarswati Parabhai v. Grid Corporation of Orrisa, AIR (2000) Orrisa 13
[21] (1938)1 All ER 566
[22] Glasgow Corporation v. Muir (1943) AC 448 (457)
[23] Kumari v. State of Tamil Nadu, AIR (1992) SC 2069
[24] Angoori Devi v. Municipal Corporation of Delhi, AIR (1988) Del 305
[25] Nizir Abbas Shujat Ali v. Anjumshan, AIR (1949) Nag 60