Negligence and Contributory Negligence

INTRODUCTION

Negligence is one of the main aspects of the tort law. Here, a person can claim damages or even injunctive relief. In these cases, the legal rights and the property of people are protected as also financial interests as well.

In order to succeed in an action for negligence, it is necessary for a claimant to establish the following three elements:

The defendant owed the claimant a duty of care.
The defendant breached that duty of care.
Reasonably foreseeable damage was caused by the breach of duty.

NEGLIGENCE:

The words neglect and negligence have originated from the Latin word ‘Nec‘ meaning ‘not’ and ‘lege‘ means ‘together, i.e. the failure to take care of to take such care as is necessary, show some attention, pay such courtesy, etc.

DEFINITION OF NEGLIGENCE

According to Austin:

In the cases of negligence, the party performs not an act to which he is obliged, he breaks a positive duty.

The Simplest Definition:

Negligence is a breach of the duty to take care

ESSENTIAL INGREDIENTS OF NEGLIGENCE

In order to succeed in an action for negligence the plaintiff must prove the following

1. LEGAL DUTY:

The defendant must be under a legal duty to exercise due care and skill.

The duty was toward the plaintiff
Failure to perform the duty
Under the circumstances of the case, the defendant failed to perform that duty, the duty to exercise due care and skill.

2. BREACH OF DUTY:

The breach of duty was the direct and proximate cause of the damage complained of.

3. DAMAGE:

The damage was caused on account of the breach of duty. In short, no case of negligence will arise unless the duty to be careful exists, and duty. There cannot be a liability for negligence unless there is a breach of duty.

EXAMPLES

(a) Where during a cricket match a batsman hit a ball that injured the plaintiff who was standing on the highway road, and the plaintiff brought an action against the cricket club for damages for negligence. It was held that the defendant was under a duty to prevent balls from going over the pitch and they were liable.

(b) Where the plaintiff went into a public house refreshment leaving his motorcycle in the compound, and the motorcycle was stolen. It was held that the defendant was not liable as he could not be called the insurer of his customer’s goods.

STANDARD OF CARE

The duty to determine whether a person has been guilty of negligence is the conduct of a prudent man in a particular situation. The amount of care may vary to a great extent.

ONUS OF PROOF OF NEGLIGENCE

The onus of proving negligence is on the plaintiff He must not nearly establish the facts of the defendant’s negligence and of his own damage but must show that the one was the effect of the others.

Where there is a contract or personal undertaking the plaintiff must prove such contract or undertaking and injury to himself.
Where there is no contract the plaintiff must prove facts inconsistent with due diligence on the defendant’s part.

RES-IPSA LOQUITUR:

It means that “Things Speak Themselves”. Under certain circumstances, the mere happening of an accident will afford prima facie evidence that it was the result of due care. This is so when.

- The injurious agency was under the management or control of the defendant
- An accident such as in the ordinary course of things does not happen if those who have the management use proper care.

DEFENSES AVAILABLE TO THE DEFENDANT:

The following defenses are available to the defendant in an action for negligence.

1. ACT OF GOD:

According to Halsbury’s Laws of England,

It is an accident due to natural causes, directly and exclusively without human intervention, and which could not have been avoided by any amount of foresight and pains and care reasonably to be expected of the person sought to be made liable for it, or who seeks to excuse himself on the ground of it.

Case Law: Nichols V. Marshland

Facts: Where the defendant had a series of artificial lakes on his land in the construction and maintenance of which there had been no negligence during a most unusual rainfall, some of the reservoir burst and carried away four country barges.

Held: the defendant was not liable, inasmuch as water escaped by the act of God.

2. INEVITABLE ACCIDENT:

It is that which the party charged with the offense could not possibly prevent by the exercise of ordinary care, caution, and skill. An inevitable accident is an excellent defense to an action for negligence.

Example: A is lying drunk on a road. B approaches in a motor-car round around a bend in the road, but just before he reaches the point on which, under ordinary circumstances, he would first see A, a sheet of newspaper is blown by the wind against his windscreen and materially obscures his view. He runs over A and injures him. This is a case of inevitable accident or misfortune.

3. CONTRIBUTORY NEGLIGENCE OF PLAINTIFF:

Contributory negligence is negligence in not avoiding the consequences arising from the negligence of some other person when means and opportunity are afforded to do so.

CONTRIBUTORY NEGLIGENCE:

Contributory negligence consists of the absence of that ordinary care that a normal human being ought reasonably to have taken for his own safety. If it had been exercised, it would have enabled him to avoid the injury of which he complains.

BURDEN OF PROOF:

The onus of proving contributory negligence rests upon the defendants, and in the absence of evidence tending to that conclusion, the plaintiff is not bound to prove its non-existence.

AT COMMON LAW:

At common law, if there is contributory negligence on the part of the defendant he cannot recover.

SUMMARIZED VIEW:

Plaintiff’s Negligence: Whenever the immediate, proximate, or decisive cause of the damage is the plaintiff’s own negligence or want of care and caution, so that but for such negligence or want of ordinary care and caution on his part, the misfortune would not have happened, he is not entitled to recover
Where Plaintiff can Recover Damages: The plaintiff is not disentitled to recover unless it is shown
- That one might, by the exercise of ordinary care have avoided the consequences of the defendant’s negligence
- That the defendant could not avoid the consequences of the plaintiff’s negligence by the exercise of ordinary care.
Negligence by Both Parties: If there has been as much want of reasonable care on the plaintiff’s part defendant, the plaintiff cannot sue the defendant.
Contributory Negligence of Children: The doctrine of contributory negligence does not apply to children and it is no defense to say that the child himself was negligent.

EXCEPTIONS:

In the following few cases, contributory negligence is no defense.

Where rightful acts are assumed
Where the defendant had a later opportunity
The doctrine of alternative danger
Children
Maritime law

CONCLUSION

Negligence is a legal concept that refers to the failure to exercise reasonable care, resulting in harm or injury to another person or their property. Contributory negligence is an expression, which, implies that the plaintiff is also guilty of negligence that resulted in the injury caused to him.

FREQUENTLY ASKED QUESTIONS

What is meant by the term negligence? Also explains the concept of duty and standard of care.

(2019-A)

What are the requirements for establishing liability in negligence? Does the same apply in the case of contributory negligence?

(2019-A 5 years)

Negligence is the absence of the care which a reasonable man would take in the circumstance. Justify this statement with the help of case law.

(2018-A)

Explain the doctrine of contributory negligence. What is the rule of contributory negligence of children? Support the answer with relevant case law.