Tuesday, 31 May 2022

NEGLIGENCE UNDER TORT LAE

 NEGLIGENCE UNDER TORT LAW 

BY NUPUR GARG 

INTRODUCTION 

In everyday usage, the word ‘negligence’ denotes mere carelessness. In legal sense it signifies failure to exercise standard of care which the doer as a reasonable man should have exercised in the circumstances. In general, there is a legal duty to take care when it was reasonably foreseeable that failure to do so was likely to cause injury. Negligence is a mode in which many kinds of harms may be caused by not taking such adequate precautions.

In general, there is a legal duty to take care in law of tort, a duty of care is a legal obligation imposed on an individual requiring to a standard of reasonable care while performing any acts that could foreseeably harm to others. It is the first element that must be established to proceed with an action in negligence.

A simple definition of negligence i.e., failure to take proper care, and, as a result, that failure causes injury or damage to someone.

ESSENTIALS 

  1. Duty Of Care

It is one of the essential conditions of negligence in order to make the person liable. It means that every person owes, a duty of care, to another person while performing an act. Although this duty exists in all 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.

  1. The Duty must be towards the plaintiff

A duty arises when the law recognizes a relationship between the defendant and the plaintiff and requires the defendant to act in a certain manner toward the plaintiff. It is not sufficient that the defendant owed a duty of care towards the plaintiff but it must also be established which is usually determined by the judge.

  1. Breach of Duty to take care

It’s not enough for a plaintiff to prove that the defendant owed him a duty of care but he must also establish that the defendant breached his duty to the plaintiff. A defendant breaches such a duty by failing to exercise reasonable care in fulfilling the duty. In other words, the breach of a duty of care means that the person who has an existing duty of care should act wisely and not omit or commit any act which he has to do or not do.

  1. Actual cause or cause in fact

In this scenario, the plaintiff who is suing the defendant for negligence has the liability to prove is that the defendant’s violation of duty was the actual cause of the damages incurred by him.

  1. Proximate cause

Proximate cause means “legal cause,” or the cause that the law recognizes as the primary cause of the injury. It may not be the first event that set in motion a sequence of events that led to an injury, and it may not be the very last event before the injury occurs. Instead, it is an action that produced foreseeable consequences without intervention from anyone else. A defendant in a negligence case is only responsible for those damages that the defendant could have foreseen through his actions.

  1. Consequential harm to the plaintiff

Proving that the defendant failed to exercise reasonable care is not enough. It should also be proved that the failure of the defendant to exercise reasonable care resulted in damages to the plaintiff to whom the defendant owed a duty of care.

NEGLIGENCE AS A CRIME:

Negligence as a crime has a different measure. Negligence under law of tort due to the negligence arises of loss caused under criminal law is dependent amount of negligence. Courts held that the burden of proving criminal negligence heavily on the person claiming it. Criminal law requires a guilty mind. If there is a guilty mind, then person will be liable in any case. under the criminal law, rashness and recklessness amount to crime, in other words, the element of criminality is introduced guilty mind or bad intention.

DEFENCES 

  1. CONTRIBUTORY NEGLIGENCE

 It was the Common law rule that anyone who by his own negligence contributed to the injury of which he complains cannot maintain an action against another in respect of it. Because, he will be considered in law to be author of his wrong.

  1. ACT OF GOD OR VIS MAJOR:

 It is such a direct, violent, sudden and irresistible act of nature as could not, by any amount of human foresight have been foreseen or if foreseen, could not by any amount of human care and skill, have been resisted. Such as, storm, extraordinary fall of rain, extraordinary high tide, earth quake etc.

  1. INEVITABLE ACCIDENT: 

Inevitable accident also works as a defense of negligence. An inevitable accident is that which could not possibly, be prevented by the exercise of ordinary care, caution and skill. it means accident physically unavoidable.

CONCLUSION

Negligence as a tort has evolved from the English law and accepted by the Indian law as a substantially important tort. Negligence is of two types, civil and criminal and each has various repercussions. In order to prove that an act was negligent, it is necessary to prove all the essentials namely duty, breach of duty, damages and actual and proximate cause.


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