Negligence Under the Law of Torts

The term Negligence is derived from the Latin word negligentia, which means ‘failing to pick up’. In the general sense, the term negligence means the act of being careless and in the legal sense, it signifies the failure to exercise a standard of care which the doer as a reasonable man should have exercised in a particular situation. Negligence in English law emerged as an independent cause of action only in the 18th century. Similarly in Indian law, the IPC, 1860 contained no provision for causing the death of a person by negligence which was subsequently amended in the year 1870 by inserting section 304A.

Definition of Negligence

According to Winfield and Jolowicz, negligence boils down to not taking proper care and causing harm. In the case of Blyth v. Birmingham Water Works Co, negligence was explained as either failing to do what a sensible person would do or doing something that a cautious and sensible person wouldn’t. It’s basically about not being careful enough and ending up causing harm to someone.

It can be characterized in three forms-

Nonfeasance: It means the act of failure to do something which a person should have done. For example, failure to carry out the repairs of an old building when it should have been done.

Misfeasance: It means the act of not doing an action properly when it should have been done properly. For example, Doing the repairs of an old building but doing so by using very poor quality materials creating a major probability of a collapse which injures people.

Malfeasance: It means the act of doing something which should not have been done in the first place itself. For example, using products that are not allowed and combustible to carry out the repairs of an old building, therefore, converting the building into a firetrap leading to an accident.

Illustration: Let’s imagine a scenario where Z, the owner of a big dog, asks his friend X for a favor—to look after the dog while he’s away. However, things take a turn for the worse when X, unfortunately, leaves the dog unattended. In a regrettable incident, the dog ends up attacking a passerby and causing serious injuries. In simple terms, it’s safe to say that this unfortunate event occurred because of X’s negligence. In the legal world, the level of responsibility in a civil case (tort) is often linked to the damages suffered by the parties involved. On the flip side, in criminal law, the seriousness of liability is connected to the extent and degree of negligence displayed.

How is Criminal Negligence different from Civil Negligence?

  • Criminal negligence happens when someone acts in a way that’s way off from how a normal person would act in the same situation. It’s like a big, clear mistake, not just a regular oops. Civil negligence is when someone doesn’t take enough care or misses doing something they should have done, but it’s not as extreme as criminal negligence.
  • In civil negligence, it’s easier to prove because you just have to show it’s more likely than not that the person messed up. But in criminal negligence, you have to be super sure and prove “beyond a reasonable doubt” that the person was really careless – that’s a really high standard.
  • If you goof up in a civil negligence case, you just have to pay for the damage you caused. But in criminal negligence, the consequences are way more serious – you could end up in jail, pay fines, or be on probation. For instance, if someone’s driving all messed up because of drugs and booze and ends up causing someone’s death, that’s criminal negligence. On the flip side, if a janitor forgets to put up a “wet floor” sign and someone slips and falls, it’s more of a civil negligence thing because it’s just a regular slip-up, not extreme neglect.

Essentials of Negligence

To commit the tort of negligence, there are primarily 6 main essentials that are required. An act will be categorized as negligence only if, all the conditions are satisfied namely:

Duty of Care:

  • Every person is legally bound to exercise a duty of care towards others when undertaking an action. This duty is particularly crucial in cases of negligence.
  • The duty of care in negligence is purely legal and cannot be of an illegal, immoral, ethical, or religious nature.
  • Example: In the case of Stansbele vs Troman(1948), a decorator was held liable for negligence as he left a house unlocked, leading to a theft. His failure to fulfill the duty of care resulted in losses for the homeowner.

Duty Towards the Plaintiff:

  • A duty arises when a legal relationship exists between the defendant and the plaintiff, requiring the defendant to act in a specific manner towards the plaintiff.
  • The establishment of a duty is determined by the judge based on the recognized relationship between the parties.
  • Example: In Bourhill v. Young (1943), a fishwife could not claim damages from a deceased motorcyclist as there was no recognized duty of care towards her.

Breach of Duty to Take Care:

  • It’s not enough to prove the existence of a duty; the plaintiff must show that the defendant breached this duty by failing to exercise reasonable care.
  • Breach of duty involves the non-observance of a standard of care, as highlighted in Blyth v. Birmingham Waterworks Co, (1856).
  • Examples: In Ramesh Kumar Nayak vs Union of India(1994) and Municipal Corporation of Delhi v. Subhagvanti (AIR 1966), defendants were held liable for breaching their duty of care, resulting in injuries and deaths.

Actual Cause or Cause in Fact:

  • The plaintiff must prove that the defendant’s actions were the actual cause of the damages, often known as “but-for” causation.
  • Example: If a bus strikes a car, the bus driver’s actions are the actual cause of the accident.

Proximate Cause:

  • Proximate cause is the primary cause recognized by law, considering the foreseeability of consequences without external intervention.
  • Example: In Palsgraf vs Long Island Railroad Co(1928), the court ruled against damages for Ms. Palsgraf, as the relationship between the actions of the employees and her injuries was not direct enough.

Consequential Harm to the Plaintiff:

  • It’s not just about proving a lack of reasonable care; there must be evidence that the defendant’s failure caused harm to the plaintiff.
  • Harm may include bodily harm, harm to reputation, harm to property, financial loss, and mental harm.
  • Example: In Joseph vs Dr. George Moonjely(1994), damages were awarded against a surgeon for improper medical procedures, showcasing the responsibility to compensate for harm caused.

Res Ipsa Loquitur

Res ipsa loquitur is a fancy Latin phrase that basically means “the thing speaks for itself.” In simpler terms, it’s like saying if something unusual happens and it’s pretty clear someone messed up, the injured person doesn’t have to jump through hoops to prove it. Normally, it’s on the person who got hurt to show that the other person was careless, but with res ipsa loquitur, if the injured person can point to some obvious signs, the ball is in the other person’s court to prove they weren’t negligent. It’s like a legal shortcut that shifts the burden of proof when things seem pretty straightforward.

The legal doctrine in question originated from the Byrne vs Boadle case in 1863.

  • The plaintiff was walking near a warehouse when a barrel of flour fell from a second-floor window, causing injuries.
  • During the trial, the plaintiff’s lawyer contended that the facts were self-evident.
  • The attorney argued that the incident unequivocally pointed to the warehouse’s negligence.
  • The contention was that no other explanation could reasonably account for the cause of the plaintiff’s injuries.
  • The lawyer suggested that the circumstances were so clear that they spoke for themselves, reinforcing the claim of negligence.

Thus the following are the three essential requirements for the application of this maxim-

  • The thing causing the damage must be under the control of the defendant or his servants
  • The accident must be such as would not have happened in the ordinary course of things without negligence.
  • There must be no evidence of the actual cause of the accident.

Defenses Available in a Suit for Negligence

Contributory Negligence by the Plaintiff

  • Sometimes, if you’re partly to blame for your own misfortune, you can’t hold someone else responsible. This is called contributory negligence. If you willingly put yourself in harm’s way, you might not be able to sue for damages caused by that harm.
  • You can’t recover damages from someone else if:
  • You could have avoided the harm by being more careful.
  • The other person couldn’t have avoided the harm, no matter how careful they were.
  • Both you and the other person were equally careless, and you can’t blame them for the situation.
  • The burden of proving contributory negligence falls on the person being accused of negligence. If they can’t show evidence, the person claiming damages doesn’t have to prove they weren’t at fault.
  • In a case like Shelton vs. L & W Railway (1946), a deaf person was injured while crossing a railway line. The court ruled it was contributory negligence because the person couldn’t hear a warning due to their impairment.

An Act of God

  • An Act of God is a sudden, violent act of nature that no one could have foreseen or prevented, no matter how careful they were. Storms, tempests, high tides, or heavy rainfall fall under this category.
  • If someone is harmed or killed due to a natural disaster, the responsible party might not be liable if they can prove it was truly an act of God.
  • In Nichols v. Marsland (1876), heavy rain caused reservoirs to burst, destroying country bridges. The court ruled the property owner wasn’t liable because the damage was caused by an unforeseeable act of nature.

Inevitable Accident

  • Sometimes accidents are truly unavoidable, even with the utmost care. An inevitable accident is one that couldn’t have been prevented, no matter how cautious or skilled someone was.
  • In Brown v. Kendal (1850), two dogs were fighting, and the owners tried to separate them. In the process, one owner accidentally injured the other. The court ruled it was an inevitable accident, absolving the responsible party from blame.


Negligence as a legal concept has its roots in English law and has become a significant aspect of Indian law. It’s crucial to recognize that negligence can take two forms: civil and criminal, each carrying distinct consequences. To establish negligence, one must demonstrate the key elements—duty, breach of duty, damages, and both actual and proximate cause. An interesting legal principle related to negligence is “Res Ipsa Loquitur,” which comes into play when a negligent act is challenging to explain. Additionally, defendants in a negligence case can employ defenses to protect themselves against claims brought by plaintiffs. These legal nuances highlight the complexity of negligence cases and how the law addresses them.

Read Also: Preamble of the Constitution of India

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