ESSENTIALS OF NEGLIGENCE

The essentials of requirement which are required to constitute a tort of negligence. These acts include,

Duty of care to the plaintiff

• Breach of duty

• Plaintiff suffered damage as a consequence


1. DUTY OF CARE TO THE PLAINTIFF

Duty of care is one essential condition to constitute negligence of a person. It means that a person owes, the duty of care, to another person while performing any act. Although this duty exists in all the acts, but in negligence, the duty is legal in nature and cannot be illegal or unlawful and also cannot be of moral, ethical, or religious nature. There is no law in general defining such duty.

In Donoghue v. Stevenson, the facts of the case laid where the plaintiff who bought a ginger beer for his girlfriend packed in an opaque bottle found a dead rotten snail in it. The appellant alleged that she seriously suffered health conditions having the consequence of drinking the beer. The bottle was of dark-opaque glass and closed with a metal cap, so that the contents could not be ascertained by inspection. She brought against the manufacturer for damage. Here the house of lords held that the manufacturer owed her a duty towards the plaintiff to take care that the bottle did not contain any noxious matter, like that of the dead snail lying in it.

The duty depends upon a reasonable foreseeability of injury. Whether the defendant owes a duty to the plaintiff or not depends on a reasonable foreseeability of the injury to the plaintiff. If at the time of act or omission, the defendant could reasonably foresee injury to the plaintiff, he owes a duty to prevent that injury, and the failure to do so makes him liable. Duty to take care is the duty to avoid doing or omitting the to do anything, the doing or omitting to do which may have as its reasonable and probable consequence injury to others, and the duty is owed to those to whom injury may probably be caused if the duty is not observed. To decide the culpability, we have to determine what a reasonable man would have foreseen and thus form an idea of how he would have behaved under the circumstances. In deciding as to how much care is to be taken in a certain situation, one useful test is to enquire how obvious the risk must have been to an ordinary prudent man.

No liability when injury not foreseeable

In cases where the duty of care is ensured and all the measures are taken as could have been done by any man of ordinary prudence, any injury that was not foreseeable at the time of commission of the act doesn’t make the person liable executing it.

In Cates v. Mongini, the plaintiff, a lady visitor to a restaurant was injured by the falling of a 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 on her. The defect could not have been discovered by a reasonable man. In 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 of the plaintiff.

Reasonable foreseeability does not mean remote possibility

To establish negligence, it is not enough to prove that the injury was foreseeable, but a reasonable likelihood of the injury has to be shown because “foreseeability does not include any idea of likelihood at all”. The duty is to guard against probabilities rather than bare possibility.

In the case of Fardon v. Harcourt-Rivington, the defendant parked his car by the roadside and left his dog inside the car. The dog jumped off and smashed a glass panel. A splinter from his glass injured the plaintiff as he was walking past the car. It was held that the accident, is very unlikely, there was no negligence in not taking a precaution against it, and, therefore the defendant was not liable.

2. BREACH OF DUTY

Breach of duty means non-observance of due care which is required in a particular situation. The standard is that of a reasonable man or an ordinary prudence of the man. If the defendant has acted like a reasonably prudent man, then there is no negligence.

Standard of care required

(a) The importance of the object attained

The law doesn’t require the greatest possible care but the care required is that of a reasonable man under certain circumstances. The law permits taking the chance of some measure of risks so that in public interest various kinds of activities should go on. A balance is, therefore, to be drawn between the importance and usefulness of an act and the risk created thereby.

(b) The magnitude of risk

The degree of care required varies according to each situation. What may be careful act in one situation may be negligent as in another act in another. The law does not demand the same amount of care under all situations. The kind of risk involved determines the precautions which the defendant is expected to take.

(c) The amount of consideration for which services 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. Say, in a five-star hotel charging a high or fancy price from its guest owes a high degree of care as regards the quality and safety of its structure or service it offers and makes available. Any latent defect in its structure, service, which is hazardous to guests, would attract strict liability to compensate for the consequences flowing from the breach of duty to care of the same. For damages caused to the guest in a similar situation, exemplary damages become payable.

3. DAMAGE AS A CONSEQUENCE

It is also necessary that the defendant’s breach of duty must cause damage to the plaintiff. The plaintiff has also to show that the damage caused is not too remote a consequence of the defendant’s negligence. In suits where the damages are claimed, the onus, it is held, on the plaintiff to prove all items of the damages. In such a case, any fact which enables the court to determine the amount of damages, which ought to be awarded, is held to be relevant.

The duty assesses the damages, is, however, entirely upon the Court. In so doing, the Court resorts to the rules which regulate the practice of the Courts. The Court, it is held, has to decide and determine every question which would ultimately enable the parties to obtain the final judgment in a case in question, such as the proper measure of damages to be applied, the remoteness of damages, and the amount which the plaintiff is actually entitled to as damages.





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