Negligence And Allied Topics

Negligence and Allied Topics

Introduction • Negligence in general • Is a breach of duty caused by the omission to do something which a reasonable man guided by those consideration which ordinarily regulate the conduct of human affairs would do or doing something which a reasonable or prudent man would not do. • Actionable negligence consist in the neglect of use of ordinary care or skill toward a person for whom the defendant owes the duty of observing ordinary care and skill by which neglect the plaintiff have suffered injury to his person or porperty

Introduction • According to Winfield, he further goes on to defines negligence, ‘ tort is a breach of legal duty to take care which results in damage , undesired by the defendant to the plaintiff • Therefore, the definition of negligence involves 3 essentials : • 1. a legal duty to exercise due care on the part of the party complained of • 2. breach of the said party • 3. consequential damage

Existence of Duty of care • Prior to 1932, the year of the Appeal Court's decision in Donoghue v Stevenson (1932), there was no standardised duty of care in negligence cases • The wrong, or tort, was acknowledged in certain situations. • These situations depended upon the courts finding that a duty was owed. Examples included, road accidents, bailments and dangerous goods. • So the tort existed but it's application was limited to these special circumstances and questions arose as to whether this could be justified.

Existence of Duty of care • Donoghue v Stevenson (1932) • In Donoghue v Stevenson the opportunity arose for Lord Atkin to draw up a general rule or principle which would cover all the situations where the courts had already held that a party could be held liable in negligence.  • Also known as the "Paisley snail"or "snail in the bottle" case

• On the evening of Sunday 26 August 1928, during the Glasgow Trades Holiday, Donoghue took a train to Paisley Renfrewshire, located seven miles west of Glasgow; the journey would have taken around thirty minutes

Existence of Duty of care • in Paisley, she went to the Wellmeadow Café. At approximately 20:50 a friend met Mrs. May Donague and ordered  a pear and ice for herself a mix of ice cream and ginger beer, for Donoghue. • The owner of the café, brought over a tumbler of ice cream and poured ginger beer on it from a brown and opaque bottle labelled "D. Stevenson, Glen Lane, Paisley" • Donoghue drank some of the ice cream float. However, when Donoghue's friend poured the remaining ginger beer into the tumbler, a decomposed snail also floated out of the bottle.

Existence of Duty of care • Donoghue claimed that she felt ill from this sight, complaining of abdominal pain. • The problem at the time was who could Ms Donoghue sue? • She was unable to sue the owner of the café successfully, either in contract or tort. Mrs. Donoghue’s only possible recourse was to sue Stevenson, the manufacturer of the ginger beer.

Existence of Duty of care • Success depended on the question: • …whether the manufacturer of an article of drink sold by him to a distributor, in circumstances which prevent the distributor or the ultimate purchaser or consumer from discovering by inspection any defect, is under any legal duty to the ultimate purchaser or consumer to take reasonable care that the article is free from defect likely to cause injury to health.”

Existence of Duty of care • Lord Atkin laid down the neighbours test whereby ‘…..reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour’ • Who, then, in law is a neighbour? The answer seems to be – “persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."

Existence of Duty of care • The basic elements of a tort action in negligence began to emerge. These were that: • there was an existence of a duty of care; • there had been a breach of duty based on an objective test; • damage had resulted as a consequence of the breach based on the 'but for' test.

Existence of Duty of care • Grant versus Australian Knitting Mills Limited 1934 • Mr. Grant, the plaintiff, contracted dermatitis as a result of wearing woolen underpants which had been manufactured by the defendants (Australian Knitting Mills Ltd). The garment in question contained an excess of sulphite. Upon purchase, he wore them for one entire week without washing them beforehand. 

Existence of Duty of care • The Court used Donoghue as a persuasive precedent and expanded the legal principles established in Donoghue to include all manufacturers • They also stated that for an action in negligence to be successful it must be shown that: • There was a duty of care owed by the defendant • There was a breach of the duty owed, and • Damage was suffered as a result of the breach

Foreseeabilty and Proximity • The general principle of foreseeabilty and proximity was laid down in Donogue vs. Steveson • The duty of care is to avoid acts and omission which one can reasonably foresee would be likely to injure another. This was the principle of Foreseeabilty. • But this duty is not owed to everyone who is likely to be injured , it is extended to only those who are so closely and directly affected by one’s act that it is reasonable for one to have them in contemplation • This is the principle of proximity

Foreseeabilty and Proximity • Hedley Byrne & Co Ltd v Heller & Partners Ltd 1964 a new duty was recognized • The duty of care was extended to include liability for providing information and advice. • In this case a banker was asked by a creditor to provide information about the credit worthiness of another person. • The banker provided the information stating that the individual in question had a good credit rating.

Foreseeabilty and Proximity • On the basis of this information credit was given. However the loan was not repaid and the information supplied by the banker was found to be incorrect. • The creditor sued the banker but was unsuccessful. Although the court agreed that a duty of care was owed, the banker had clearly stated that the advice given was ‘without responsibility on the part of the bank or its officials’. The court found in favour of the banker

Foreseeabilty and Proximity • The court stated if the banker had not made the disclaimer, the banker would have been liable. • The principle of foreseeabilty and proximity was again laid down in the case of Home Office vs. Dorset Yatch Co. ltd. 1970 • Some borstal trainees escaped one night due to the negligence of the Borstal Officers who contrary to order went to bed • The trainess escaped in yatch which belonged to the Dorset and collided with another yatch

Foreseeabilty and Proximity • The owner sued Home Office for the damage cause, • The issue was whether the Home Office or its servants owed any duty of care to the owner of yatch • It was held that the causing of damage to the yatch by the trainees ought to have been foreseen by the officers as likely to occur if they failed to exercise proper control and supervision and therefore the officers were prima facie owed duty of care …

Foreseeabilty and Proximity • Anns v Merton London Borough Council [1978] AC 728  • This was a case of pure economic loss • The claimants were tenants in a block of flats. The flats suffered from structural defects due to inadequate foundations which were 2ft 6in deep instead of 3ft deep as required. The defendant Council was responsible for inspecting the foundations during the construction of the flats.

Foreseeabilty and Proximity • It was argued by Council that there was an Act i.e Public Health Act 1936 which provided discretionary power of control and supervise the construction of buildings which means it did not impose a duty to inspect… • The House of Lords held that the defendant did owe a duty of care to ensure the foundations were of the correct depth. • Lord Wilberforce introduced a two stage test for imposing a duty of care.

Foreseeabilty and Proximity • Lord Wilberforce's two stage test: • First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter—in which case a prima facie duty of care arises. •  Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise.“

Foreseeabilty and Proximity • The principle of proximity has been limited to persons to whom duty is owed. • The proximity principle does not require physical proximity • For foreseeabilty, it is the test of foresight of a reasonable man and not hindsight • Bourhill versus Young [1943] • Motor cyclist drove his bike negligently and was killed in road accident…pregnant woman • Haley versus London Board (1965) • Plaintiff a blind man- trench –under statutory power

Foreseeabilty and Proximity • The test of foreseeabilty was allowed for the nervous shock in Mcloughlin versus O’Brian • In this plaintiff husband and 3 children were involved in a motor accident caused by negligence of defendant • One child was killed….and husband and other 2 children were severely injured • The HoL concurred that the test of liability for damages of nervous shock was reasonable foreseeable and plaintiff was entitled to recover damage although she was no where near to place of accident

Persons professing to have greater skill • Where the person hold themselves out to be persons of skills they are bound to conduct themselves in skillful manners. • It is not enough that the professional have acted bona fide and to the best of their skill and judgment • For such professional the maxim , ‘ spondes peritiamartis’ i.e. if your position implies skill , you must use it as it applies • Few categories which falls into this concept are: Directors of companies, carriers, Physicians' and surgeons , Solicitors, Bankers and Manufacturers

Persons professing to have greater skill • Directors • Directors are persons who are capable of directing complicated affairs of management and regulation of companies and hence they have the duty of utmost faith and care and duty towards the stakeholders • They have fiduciary relation towards shareholders and stakeholder And hence shown diligence which good men of business are accustomed to show

Persons professing to have greater skill • Carriers • Anyone who undertakes to carry and deliver the goods of all persons for hire is a common carrier • Common carrier are generally of 3 descriptions: 1. carriers by land 2. carrier by water 3. carriers by air • Carriers by land: • Today law governs various aspect of liabilities and responsibilities of carriers by land • The Railway Act enable the Railways to reduce liability by offering rate of carriage know as the Owner’s Risk Rate

Persons professing to have greater skill • Liability towards passengers: P.A. Narayana versus Union of India [ 1998]: A passenger was criminally assaulted in 1981 while travelling in the train and was robbed off her gold chain , wristwatch and bangles • She pulled the alarm chain but the motorman and railway guard did not stop the train and she subsequently succumbed to her injuries • Held : Railways was responsible for negligence and a compensation of 2 lakh was provided to the husband of the deceased

Persons professing to have greater skill • Rakesh Saini versus Union of India [2004] • Due to the negligence of the railway administration passengers were hit by incoming train while boarding another train • At that particular time , there was total failure of electricity and the deceased along with other passengers were compelled to cross the railway tract meant for incoming train to board the train standing at the outgoing tract • Railways was held to be liable for negligence for not providing proper platform, over bridge and compensated the victims

Persons professing to have greater skill • Innkeepers and Hotelkeepers • An innkeeper may be defined as the keeper of a common inn for lodging and entertainment of traveler and passengers , their horses and attendant for reasonable compensations • In Brewster versus Drennen [1945] • The plaintiff was a guest in the small hotel owned by defendant- the door to her room was not fitted with lock which is brought into the notice of defendant-defend ant assured that it would be quiet safe to leave her belonging-later her fur cap was stolen-held to be negligence of the defendant

Persons professing to have greater skill • In Carpenter versus Haymarket [1931]- the plaintiff and her husband arrived at the defendants hotel and engaged a roomplaintiff put her diamond ring in a jewel case and placed it in her suitcase which she latched but do not lock. • They went for dinner during which they locked their room and took the key with themselves. Later they went dancing , the husband locked the room and handed the key to hotel staff and office • Next morning, plaintiff ring was missing from suitcase and there was a notice in room that all articles of value should be deposited at office • Held : it was negligence of defendant

Persons professing to have greater skill • Physicians and Surgeons • A physician or surgeon does not undertake the responsibly of performing a cure but that undertakes to bring fair, reasonable and competent degree of skill • The Bolam and Bolitho Test • The Bolam Test: The standard of care to which a medical practitioner will be held is found in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, where it was held that a medical practitioner will not be found negligent as long as his or her conduct is supported by a responsible body of medical opinion. This test has been criticized as engendering medical paternalism and unfairly favouring doctors over plaintiffs. 

Persons professing to have greater skill • Bolitho v. City and Hackney Health Authority [1997] 4 All ER 771 follows the Bolam test for professional negligence, and addresses the interaction with the concept of causation. • Negligence of surgeons were restricted (1) "The court should not accept a defence argument as being ‘reasonable’, ‘r espectable’ or responsible’ without first assessing whether such opinion is susceptible to log ical analysis”, and (2) "However, where there is a body of medical opinion which represents itse lf as ‘reasonable', 'respectable’ or ‘responsible’ it will be rare for the court to be able to hold su ch opinion to be other than represented”. • More simply put - you cannot defend a case on the basis of a current practice that is not reasonable or logical.

Persons professing to have greater skill • Alia George versus Lakshmi [2007]- tubectomy –yet 4th child was borne-could not terminate pregnancy due to health complications- doctors could not prove that surgery was done carefully and with out negligence- amount of 50,000 was provided as damage • Maynards versus Midland Regional Health Authority [1985] • There was a doubt that plaintiff may be suffering form tuberculosis but possibility of Hodgkin's diseases was also their-exploratory surgery was to confirm Hodgkin's due to which her vocal cords were damage- Held- no negligence

Persons professing to have greater skill • Patient incapable of giving consent: F versus Berkshire Health Authority [1989] • Mentally handicapped women was in a physical relation with male patient form same hospital and an application to court was made for permitting sterilization operation. • Held to be in best interest of patient • Samira Kohli vs. Prabha Mancahnda [2008] • A diagnostic laparoscopy – plaintiff under general anesthesia – found endometriosis-performed hysterectomy and salpingo-oophorectomy- after taking consent form mother- found that this was not a case of emergency – And consent was defective held liable for negligence and Rs. 25000 • Similar principle have been provided applied in juding the legality of withdrawal of treatment of an insensate patient who has no chance of recovery

Persons professing to have greater skill • Withdrawal of medical assistance • Airedale NHD Trust vs. Bland 1993: it was held that in cases of persistant vegetative state, the doctors could get a declaratory judgment form the court for withdrawal of medical assistance ,thus not violating EU convention for protection of Human Rights and Fundamentals Freedoms under the now enacted act of Human Right Act, 1998 • Indian Treatement Euthanasia and Law • P. Rathinam vs. UoI 1994: right not to live a forced life and attempt to suidcide is not illegal • Gian Kaur vs. UoI: overruled the above caseby aconstitutional bech

Persons professing to have greater skill • Under U.K Law : suicide is not an offence but mercy killing in form euthanasia is murder and assisted suicide is a statutory offence punishable for 14 years imprisonment • No team liability • The law dealing with cases of negligence does not recognize the doctrine of team liability and the case of each doctor has to be considered separately • Wilsher vs. Essex Area Health Authority 1986 • Plaintiff an infant suffered a near blindness sued for negligence while he was placed after premature birth in a incubator ..junior doctor inserted a catheter in vein instead of artery..senior doc was consulted but he did not detect the mistake..junior was not held liable but senior was held liable

Persons professing to have greater skill • What is the difference between a barrister, a solicitor and a lawyer? • A lawyer is a general term that covers both solicitor and barrister. • A solicitor is usually the first person that a member of the public will go to with their legal problem. • A solicitor will often refer the work to a barrister for specialist advice or to appear in court to represent the client. • It is also possible for certain solicitors to appear in court as advocates, if they have higher rights of audience. The judiciary is drawn from both branches of the profession.

Persons professing to have greater skill • Solicitors and Counsel • Solicitors are persons of skill and knowledge and like physicians undertake matter of highest difficulty and importance • A solicitor is liable for consequences of ignorance or non observance of rules or practice of the Court • Walpole vs. Partridge & Wilson [1994] • A suit for damage against a solicitor on ground that he failed to lodge and prosecute an appeal which would have likely resulted in reversal of a judgment against plaintiff was held not be a abuse of process of court and was maintainable

Persons professing to have greater skill • In Ross vs. Counters (1979) • The Solicitors negligence in not noticing the mistake in attestation of a will which he was engaged to draw by testator resulted in depriving the plaintiff of her legacy on testators death • Hence a suit for negligence was instituted .Solicitor was held to be liable • Except in most exceptional circumstance, a solicitor advising a partnership has no duty to communicate his advise to all partners , his duty is only to the partner at hand

Persons professing to have greater skill • Where a solicitor is guilty of negligence , the Court may order him to make good any loss occasioned by such negligence • In County Personnel (Employment Agency) ltd. Vs. Alan Pulver & Co. • The solicitor was held liable for not alerting his client as to the effect of a unusual clause in a lease while negotiation was ongoing • Duty to client opponents: in rare circumstances • Al Kandari vs. J.R. Brown & Co. 1988: lit. between husband and wife for custody of children. Husbands solicitors gave an undertaking not to release husband’s passport with name of children inserted till custody was establish . • Due to negligence of husband's solicitors, the passport was released and husband removed the children to Kuwait … • Husbands solicitors was held liable for negligence to wife

Persons professing to have greater skill • Counsel • In India, S. 5 of Legal Practitioner (Fees) Act, 1926 provides that the practitioner shall not be exempted from liability to be sued for any loss or injury due to negligence in the conduct of his professional duty • The expression legal practitioner included to mean , “ an advocate, vakil or attorney of any High Court, a pleader, mukhtar or revenue agent” • M Veerappa v. Evelyn Sequeira 1988- held that an advocate who has been engaged to act is clearly liable for negligence to his client.

Persons professing to have greater skill • In Raman Services Pvt. Ltd. vs. Subhash Kapoor [2001] • If an advocate fails to appear due to strike call give by bar , he can be made liable for costs ..a litigant who suffers due to non appearance of his counsel also has the remedy to sue advocate for negligence • R.D. Saxena vs. Balaram Prasad Sharma 2000 • Held an advocate also has no lien over papers of his client for unpaid fees and he cannot retain the files of his client ; his only remedy is sue or fees

Persons professing to have greater skill • Earlier in England, Barrister enjoyed immunity from being sued for professional negligence on basis of public policy and public interest under S. 62 of Legal Services Act, 1990 • But , HoL in Arthur J S Hall vs. Simons [2000] held that now neither public policy nor public interest justified the continuance of the immunity • But Australia still follows the rule that advocates and solicitors instructing clients are still not liable for professional negligence

Persons professing to have greater skill • Banker • For the purpose of banking , bankers hold themselves as person of worthy and trust and as person of skills • Banker responsibility to honor the cheque to the amount not exceeding the amount of the credit balance • Failure to do so constitute negligence on part of banker • Liability of Banker for paying forged cheques: bankers are liable for negligence in paying forged cheques. They are bound to exhibit skill in detecting such forgeries • In Young vs. Grote (1827) • it was held that negligence on part of customer in drawing cheque disentitled the customer from drawing the extra amount which was paid by banker owing to the cheque being forged afterwards

Persons professing to have greater skill • Another duty which Customer owes the banker is to inform the bank of any unauthorized cheque being drawn on his account as soon as he comes to know about it • Canara Bank vs. Canara Sales Corporation 1987 • An account clerk of plaintiff forged signature of MD of plaintiff on 300 cheques to be drawn from company between 1972 to 1987 and these cheques were paid by defendant bank on presentation . • Bank was held liable for negligence • Woode vs. Martine Bank Ltd. 1958 • Bank offered expert advise on investment on investment to its customers and loss was occasioned to customer by advise given by manager of bank • Bank was held liable for negligence

Persons professing to have greater skill • If a bank fails to carry out the instructions of customer he will be liable for negligence • Opinion as to creditworthiness • If a banker gives reference in the form of brief expression of opinion in regard of creditworthiness he is not liable but if circumstances are such that other could reasonable rely on the baker skill on the advise provided then he becomes liable for negligence • UCO Bank vs. Hem Chandra Sarkar 1990: when banks delivers the goods received by it on behalf of its customer to wrong person whereby they are lost to the customer, the liability of bank is absolute

Persons professing to have greater skill • Manufacturer, Repairers and Builders • Grant vs. Australian Knitting Mills Ltd- dermititis case • The principle laid down in Donogue case applies not only to manufacturer but also to suppliers or repairers or distributors of goods • Rimmer vs. Liverpool City Council [1984] - landlords installing lockable windows with removable key - tenants locking windows and hanging key in hall - tenants unable to reach key to unlock windows to escape a fire - whether landlords negligent in choice of window - claim dismissed - appeal dismissed

Persons professing to have greater skill • Junior Brooks Ltd. vs. Veitchi CO. Ltd. [1982] • The defendants who were subcontractors to lay flooring in plaintiff factory were held liable for defective flooring and held to be negligent • GEB vs. Praveen Manji Nath Bava [2005] • Injuries caused to minor due to coming into contact with line unaware while cutting tress , the electricity board was held liable of negligence • 40,000 was granted as compensation but court found it to be meager and directed to reconsider the case

Persons professing to have greater skill • Barnett vs Packer & Co 1944 • A 7 pound box of sweets manufactured by defendants was sold to middleman who sullied them to plaintiff • The plaintiff was putting them in display when his finder was injured by a wire in one of the sweets • The sued the defendants who were held liable for negligence • Holmes vs. Ashford: 1950- hairdresser applied hair dye to plaintiff- dye caused dermatitis – manufacturer had a warning to tested prior to use-did not heed to the warning- held liable for negligence

Keepers of dangerous animals • Persons possessing dangerous things are bound to exercise more than ordinary care in respect of them while in their control and keep them safe at their peril • These People included those who keep : Dangerous animals, dangerous goods and other dangerous materials • Keeper of Dangerous Animals • Person who keeps a dangerous animals becomes liable for the damage caused by animal under common law in 3 ways: for loss cause by dangerous animals, for keeping a dangerous animal, cattle trespass • Animals are of 2 classes: dangerous - ferae naturae, not of dangerous nature - mansuetae naturae

Keepers of dangerous animals • Keeping animal of dangerous nature: • In May vs. Burdett (1846)- the defendant was held liable for keeping a monkey which bit the plaintiff on the ground that monkey is an animal of dangerous nature • Keeper of non dangerous animal: • Rule of Scienter • Scienter means ‘knowledge’ • In case of domestic animals, the plaintiff should prove that knowledge of the dangerous propensity of the animal .i.e. the burden of proof of on the complainant that the owner of the animal had knowledge that domestic animals was dangerous

Keepers of dangerous animals • Osborne vs. Choc Queel (1896) • Knowledge of owner that the animals was prone to injure mankind must be established and for this a single instance of ferocity of the animal is sufficient notice was held in this case • Hundson vs. Roberts [1851] • The owner of the bull knew that it had the tendency to attack anything in red in colour. • The owner was held liable for negligence when the bull attacked the plaintiff in the street

Keepers of dangerous animals • GOODWIN v. E. B. NELSON GROCERY CO. 1921 • Plaintiff brought her dog into a store. The dog fought with the store owner's cat. • After the fight was over, and the animals were calm, plaintiff reached down and grabbed the cat's front paw. • The cat scratched and bit plaintiff, who brought a negligence action against the store owner. • The court held that plaintiff could not recover because plaintiff did not exercise due care when she interfered with a strange animal, and there was no evidence that the cat was vicious

Dangerous an • Dangerous Goods • in case of dangerous articles there is a peculiar duty to take precaution imposed upon on those who send forth or install such articles when it is necessarily the case that other parties will come with their proximity. • Fire • A Man is not liable for damage caused by ‘domestic ‘ fire which began in his house or his land provided it was an accident and not due to negligence. • Every person who light a ‘non domestic’ fire has responsibility more than ordinary prudent man • Vaughan vs. Taff Vale Rly. Co. [1860]- license to run locomotive enginesparks from engines caused fire- took necessary precautions- not held to be negligence

Dangerous materials • Fire arms: • Dixon vs. Bell (1816) • The defendant had left a loaded gun at his lodgings and sent his servant, a girl aged about thirteen or fourteen, for the gun, asking the landlord to remove the priming and give it her. • The landlord did remove the priming and gave it to the girl, who later levelled it at the plaintiff's small son, drew the trigger and injured the boy. • Held: The law requires of persons having in their custody instruments of danger, that they should keep them with the utmost care The defendant was liable to damages in an action upon the case.

Dangerous material • Fireworks and Explosive Materials: • Demands greater care from the owners and controllers of fireworks and explosive materials • Farrant vs. Barnes [1862] • Defendant sent nitric acid to a carrier without warning and the carrier servant handling it was injured as the liquid escaped the container. • Held: liable for negligence • Poisonous Drugs • In Thomas vs. Winchester [1852] • This is an action brought to recover damages from the defendant for negligently putting up, labeling and selling as and for the extract of dandelion,

Dangerous goods • which is a simple and harmless medicine, a jar of the extract of belladonna, which is a deadly poison; by means of which the plaintiff Mary Ann Thomas, to whom, being sick, a dose of dandelion was prescribed by a physician, and a portion of the contents of the jar, was administered as and for the extract of dandelion, was greatly injured. • Other Dangerous Articles • A person who intentionally induces another to rely on his examination of a dangerous chattel is liable if another is injured owing to defect in a chattel which could have been discovered by proper examination • Parry vs. Smith [1879]: gas-fitter- employed to repair gas metersupplied a temporary meter-plaintiff servant without negligence lighted the gas-got injured

Contributory Negligence

• Contributory negligence is negligence not avoiding consequences arising form the negligence of the other • In other words opportunity and means were afforded to avoid the damage caused due to the negligence of the other • The doctrine seems to be founded on the maxims of : volenti non fit injuria - to a willing person, injury is not done" and in jure non remota causa sed proxima spectatur- "In law the immediate, not the remote cause of any event is to be regarded.“ • 1. where the immediate, proximate or decisive cause is due to the complainant /plaintiff own negligence..he is not entitled to recover • Davies vs. Mann: the fettered feet of donkey-narrow alley-sppeding heavy wagon- held : damage granted • Butterfield vs. Forrester: defendant put up a pole discernible form 100 yard-plaintiff galloping in a horse-falls-no damage granted

Contributory Negligence • 2. Rule of Last Opportunity: means he who has the last opportunity to avoid the accident will be solely responsible notwithstanding the negligence of the other • the plaintiff is however not disentitled to recover unless it is shown that : • 1. by exercise of ordinary care could have avoided the consequences of defendants negligence • 2. defendant could not have avoided the consequences even if the ordinary care was taken by plaintiff • Heneley vs. Cameron : rule of last opportunity was not applied in this case • The defendant car ran out of petrol –he left the car where it stood without the lights on and not pushing it to the edge of road in safety-

Contributory Negligence • The plaintiff was riding a motor cycle –collided with motor run-lost his lifeheld defendant liable for negligence • Davies v. Swan Motor Co. (Swansea) Ltd. • Davies had been standing on steps at the side of a dust lorry. He was standing in a dangerous place. The lorry was travelling along a narrow road when a bus tried to pass the lorry. Davies was unfortunately killed. • Held: Davies was himself one-fifth responsible for the damage because of his negligence in standing upon, or being upon, the side of the dust lorry. His damages were accordingly reduced under the Law Reform (Contributory Negligence) Act 1945. • Satbir Singh vs Balwant Singh, (1987) ACJ 1096: The Punjab and Haryana High Court held that the reduced compensation due to contributory negligence on the part of plaintiff was allowed.

Contributory Negligence • British Columbia Electric Railway Co. v. Farrer, [1955] S.C.R. 757 • Negligence—Contributory Negligence—Running down action—Traffic Light Signals—Right to proceed subject to common law duty. • 3. when the direct and immediate cause of the accident is defendants fault ..it is no answer that it is due to plaintiff negligence that the damage has occurred or it might have been avoided • 4. if there has been as much as a responsibility on the plaintiff part as on the defendant, the plaintiff cannot sue the defendant • Contributory Negligence of children • The rule of contributory negligence is not applied to infants and children owing to their infirmity and inexperience • Lynch vs. Nurdin: The defendant’s servant left his cart and horse on a street where children were playing. A child climbed on the wheel of the cart, other children disturbed the horse, and the child was injured.

Contributory Negligence • Rescue of 3rd persons • The impulsive to save human life when in peril is one of the most basic and beneficial instinct of humanity. • So the claim of the person who is injured rescuing others cannot be subjected to contributory negligence. • Brandon Vs. Osborn (1924) – Plaintiffs – husband & wife – customers- skylight in the roof of the shop broke – husband stuck, wife trying to pull – suffers thrombosis • Haynes Vs. Harwood (1935) – Police constable – on duty – defendant’s run away horse wagon – saved people – sustain injury

Imputed Contributory Negligence OR Doctrine of Identification • Where Plaintiff though not himself negligent – is identified with another person – whose negligence is imputed to him to debar him – from recovering full amount of damages by holding him guilty of contributory negligence. • It applies only to those relations alone where one person is held responsible for another’s wrong, whether he is plaintiff or defendant.

Imputed Contributory Negligence OR Doctrine of Identification • Thorogood Vs. Bryan – Deceased must be considered as identified with the driver of Omnibus in which he voluntarily became a passenger, and the negligence of driver was negligence of deceased • This Doctrine was overruled in case of The Bernina (the collision case) – Lays down that where damage is sustained by the concurrent negligence of two or more persons, there is a right of action against all or any of them at the plaintiff’s option – Exception of Contributory negligence extends only to the acts and defaults of the plaintiffs or his agents

Imputed Contributory Negligence OR Doctrine of Identification • In Waite Vs. NE Rly [rule of identification applied] – A child of 5 years – under control of grandmother was injured by train owing to contributory negligence of grandfather. Child to be identified by Grandfather – no right to action against company • In Mills Vs. Armstrong[overulled the rule of identification] – Infant 4 years – crossing road under grandfather’s care – struck by omnibus and received permanent injuries to left hand – Infant sued for damages – jury found – negligence of driver – contributory negligence of grandfather – never the less, infant could recover damages

Contributory Negligence: No Defense • No Defense in case where Plaintiff has a right to rely on the duty of care of others. • Where Plaintiff suffers due to defendant’s neglect of duty, contributory negligence will not be available as defense to defendant • In Gee Vs. Metropolitan Railway Co. – Plaintiff travelling by an underground railway with his younger brother When the train was in motion – he stood up and pointed at an object – hand against window – door flew open he fell and sustained injuries – Held – although accident could be avoided – examined the handle – but was not bound to take precaution – duty of the servant – neglect of the driver

Contributory Negligence: No Defense • Breach of Statutory Duties • If things authorized to be done by a statute are carelessly done, an action lies. Such breach is known as ‘statutory negligence’. • Defendant can successfully plead that offending act was done under statutory authority – but defense not available, if the statutory authority was negligently exercised

Burden of Proof (Res Ispa Loquitur) • The term comes from Latin and is literally translated "the thing itself speaks", or ‘the thing speaks for itself” • Elements of res ipsa loquitur • The injury is of the kind that does not ordinarily occur without negligence. • The injury is caused by an agency or instrumentality within the exclusive control of the defendant. • The injury-causing accident is not due to any voluntary action or contribution on the part of the plaintiff. • Defendant’s non-negligent explanation does not completely explain plaintiff’s injury.

Burden of Proof (Res Ispa Loquitur) • As a rule, the onus of proving negligence is on the Plaintiff. • He must not only merely establish the fact of defendant’s negligence and his damage but also show that one was the effect of other. • Under Certain circumstances – The mere happening of accident will afford prima facie evidence that it was result of want of due care, res ispa loquitur when • Injurious agency was under the Management or control of Defendant • The accident is such in the ordinary course of things does not happen if proper care is used

Burden of Proof (Res Ispa Loquitur) • Byrne Vs. Boadle – Plaintiff was passing near defendant’s shop – he was injured by barrel of floor – from second floor – became unconscious and injured – held accident is prima facie evidence of negligence

• The Principle of Res Ispa Loquitur does not indicate as to who was negligent • The principle is merely a rule of Evidence

Burden of Proof (Res Ispa Loquitur) • There are cases which accident speaks for itself, therefore plaintiff needs to prove only accident. • It is then for Defendant to establish that accident happened due to some other cause than negligence. • In Kishan Lal Vs. Govt of NCT, Delhi, • Death of 7 year boy (asphyxia) – fell in manhole – Res Ispa Loquitur applied – Private Sub Contractor held liable

Burden of Proof (Res Ispa Loquitur) • Res Ispa Loquitur does not have universal application – needs to be applied with extreme caution and care to cases of professional negligence • Jacob Mathew Vs. State of Punjab – Patient did not respond favorably to treatment provided by doctor / surgeon – Doctor cannot be held liable. • Cholan Roadways Ltd Vs. G. Thiruganas Ambandam – accident – nature of impact clearly demonstrates that vehicle was driven rashly – Burden of proof on Respondent is to prove otherwise [re ipsa loquitur applied]

Burden of Proof (Res Ispa Loquitur) • Chairman MPEB Vs. Bhajan Gond – person met his death by coming into contact with live electricity wire – the claimant was not required to offer proof of negligence. • The Principle does not apply where the facts are sufficiently known • The maxim shifts the burden of proof • It is sufficient if defendant proves that he personally was not negligent.

Burden of Proof (Res Ispa Loquitur) • The (English) Unfair Contract Terms Act, 1977 forbids liability of death or personal injury resulting from negligence to be excluded or restricted by contract or notice. • For loss or injury act permits the liability to be excluded or restricted, provided clause stands the test of reasonableness. • Act provides for statutory definition of negligence and can be used in Courts in India for matters pertaining to negligence except with respect to the extend which conflicts with of Contract Act 1872