NEGLIGENCE

AND NUISANCE
MISHA P MADHU
ASSISTANT PROFESSOR OF LAW
NEGLIGENCE
◦ Negligence is the breach of duty caused by the omission to do something which a reasonable man,
guided by those considerations which ordinarily regulate the conduct of human affairs would do, or
doing something which a prudent and reasonable man would not do.
◦ Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to
whom the defendant owes the duty of observing ordinary care and skill, by which neglect the
plaintiff has suffered injury to his person or property.
◦ Subjective theory V Objective theory
◦ Subjective theory. It is given by Salmond.
◦ His view is that negligence is culpable carelessness. Although negligence is not the same as
thoughtlessness or inadvertence, it is nevertheless essentially an attitude of indifference.
◦ A person is made liable on the ground of negligence because he does not sufficiently desire to avoid
a particular consequence - a harm. He is careless about the consequence and does the act
notwithstanding the risk that may ensue. Winfield, an advocate of this theory, says that ‘as a mental
element in tortious liability, negligence usually signifies total or partial inadvertence of the
defendant to his conduct and for its consequences’
CONTINUED…
◦ Objective theory - It is given by Pollock.
◦ His view is that negligence is an objective fact. It is not a particular state of mind or form of the
mens rea at all, but a particular kind of conduct.
◦ Negligence is a ‘breach of duty to take care’, and to care means to take precautions against
the harmful results of one’s actions and to refrain from unreasonably dangerous kinds of
conduct.
◦ Pollock says that ‘negligence is the contrary of diligence, and no one describes diligence as a state
of mind’. So it is never a mental state.
◦ This view obtains strong support from the law of tort, where it is clearly settled that negligence
means a failure to achieve the objective standard of the reasonable man.
◦ If the defendant has failed to achieve this standard, it is no defence for him to show that he was
anxious to avoid doing harm and took the utmost care of which he was capable.
Negligence has two meanings in
law of torts
◦ (1) Negligence as a state of mind- Negligence is a mode of committing certain torts, e.g. negligently
or carelessly committing trespass, nuisance or defamation. This is the subjective meaning of
negligence advocated by Austin, Salmond and Winfield.
◦ In the words of Salmond, Negligence essentially consists of a mental attitude of undue indifference
with respect to one’s conduct and its consequences.
◦ The negligence is defined as ‘the absence of such care as it was the duty of the defendant
to use’ [Gill v General Iron Screw Colliery Co. (1886)
◦ Negligence as a type of conduct- Negligence is a conduct, not a state of mind, which involves the
risk of causing damage. This is the objective meaning of negligence, which treats negligence as a
separate or specific tort.
◦ According to Dr. John G. Fleming, “Negligence is conduct that fails to conform to the standards
required by law for safeguarding others (actionable negligence) or oneself (contributory negligence)
against unreasonable risk of injury.
Continued..
◦ Negligence is also of two kinds:
◦ (a) Advertent negligence - It is called willful negligence or recklessness. In this negligence, the
harm done is foreseen as possible or probable, but it is not willed.
For example, a person who drives furiously in a crowded street and causes injury or harm to persons
commits it by advertent negligence.
◦ For legal purposes, such negligence is classed with intention
◦ (B) Inadvertent or simple negligence
It is a result of ignorance, thoughtlessness or forgetfulness. In such negligence, the harm caused is
neither foreseen nor willful.
Essentials of Negligence
◦The tort of negligence is a tort which can be committed
with respect to both, person and property.
◦In an action for negligence, the plaintiff has to prove the following
essentials:
◦ (1) That the defendant owed a duty of care to the
plaintiff.
◦(2) The defendant made a breach of the duty i.e. he failed
to exercise due care and skill.
◦ (3) Plaintiff suffered damage as a consequence thereof.
(1) Duty of Care to the Plaintiff
◦ i) Legal Duty
Donoghue v Stevenson
(ii) Reasonable Foreseeability of Injury
The duty to take care arises as soon as there is reasonable probability of danger from the defendant’s
conduct.
◦ Standard of a reasonable man - A useful test to decide culpability is to determine what a ‘reasonable
man’ (i.e. a man of ordinary prudence or intelligence) would have foreseen and behaved under the
circumstances.
◦ The standard of care of the reasonable man involves in its application a subjective element as it is the
judge who decide what, in the circumstances of the particular case, the reasonable man would have had
in contemplation, and what, accordingly, the party sought to be made liable ought to have foreseen.
◦ Rural Transport Service v Bezlum Bibi (AIR 1980 Cal 165)
◦ Davies v Liverpool Corpn. (1949)
Continued…
◦ iii) When the Defendant is Not Liable for Negligence
◦ When the injury to the plaintiff is not foreseeable, then the defendant is not liable
◦ Glasgow Corpn. v Muir (1943)
◦ To establish negligence it is not enough to prove that the injury was foreseeable,
but a reasonable likelihood of the injury has also to be shown. Reasonable
foreseeability does not mean remote possibility. If the possibility of danger
emerging is only a mere possibility which could never occur to the mind of a
reasonable man, then there is no negligence in not having taken extraordinary
precautions.
◦ Bolton v Stone (1951)
(2) Breach of Duty
◦ It means not taking due care which is required in a particular case. The law requires taking of
two points into consideration to determine the standard of care required:
◦ (i) The importance of the object to be attained- The law does not require greatest
possible care but the care required is that of a reasonable man under certain circumstances.
◦ (ii) The magnitude of the risk- The degree of care varies according to the likelihood of
harm and seriousness of injury.
The driver of a vehicle has to observe greater care when he is passing through a
school zone, or he finds a blind man, a child or an old man. The degree of care also depends
upon the kind of services offered by the defendant; thus, a five star hotel which charges high
price from its guests owes a high degree of care as regards quality and safety of its guests.
Nitin Walia v Union of India (AIR 2001 Del 140)
(3) Damages
◦ 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 thus caused is not too
remote a consequence of the defendant’s negligence.
Defences to Negligence
◦The following defences can be raised in an action for
negligence
◦(a) Vis major (Act of God)
◦ (b) Inevitable accident
◦ (c) Contributory negligence of the plaintiff
◦(d) Volenti non fit injuria (Defence of consent)
◦ (e) Express contract (clause for contracting out of negligence)
Contributory Negligence
◦ In certain circumstances a person who has suffered an injury will not be
able to get damages from another for the reason that his own negligence
has contributed to his injury; every person is expected to take reasonable
care of himself.
◦ Thus when the plaintiff by his own want of care contributes to the damage
caused by the negligence or wrongful conduct of the defendant, he is
considered to be guilty of contributory negligence.
◦ Rural Transport Service v Bezlum Bibi AIR 1980
Continued…
◦ Dr. John G. Fleming, “Negligence is conduct that fails to conform to the standards required by law for
safeguarding others (actionable negligence) or oneself (contributory negligence) against
unreasonable risk of injury.”
◦ Thus, when the plaintiff, by his own want of care, contributes to the damage caused by the
negligence or wrongful conduct of the defendant, he is considered to be guilty of contributory
negligence.
◦ In trying a claim arising out of death or injury caused by negligence, the court may be
faced with a situation where both parties were in some respects negligent.
◦ The court is then to decide as to whose negligence caused the death or injury.
◦ There are three possible answers to such an enquiry depending upon the circumstances of the case
◦ 1)The defendant’s negligence alone caused the death or injury;
◦ 2) The deceased or the plaintiff’s negligence was solely responsible for the death or
injury; and
◦ 3) The negligence of both the parties caused the death or injury.
Continued…
◦ LAST OPPORTUNITY RULE
◦ If the defendant had the last opportunity to avoid the accident resulting in injury he
was held solely responsible for the injury in spite of the fact that the plaintiff was
also negligent.
◦ THE PRESENT RULE
◦ It has been held that contributory negligence must be pleaded by the defendant.
◦ On the plea being established, the court is empowered to order a reduction of the
damages by an amount which is ‘just and equitable’.
◦ Apportionment of blame and consequent reduction of damages are normally done;
but it has been suggested that if the blame of the plaintiff is only slight, it may not
be just and equitable to reduce the damages against the defendant.
RES IPSA LOQUITUR( Things speak
for itself)
◦ As a rule, the onus of proving negligence is on the plaintiff. He must not merely establish the
facts of the defendant’s negligence and of his own damage, but must show that the one was
the effect of the other.
◦ There are certain cases when the plaintiff need not prove that and the inference of negligence
is drawn from the facts. Direct evidence of the negligence is not always necessary and the
same may be inferred from the circumstances of the case. There is a presumption of
negligence according to the Latin maxim ‘res ipsa loquitur’ which means the thing speaks for
itself.

◦ MUNICIPAL CORPN DELHI v SUBHAGWANTI (1966)

◦ Shaymal Baran Saha v State of W.B. (AIR 1998 Cal. 203)
NUISANCE
◦ Nuisance as a tort means an unlawful interference with a person’s use or enjoyment
of land or some right or in connection with it (Winfield).
◦ Nuisance is the wrong done to a man by unlawfully disturbing him in the enjoyment
of his property, or, in some cases, in the exercise of a common right (Pollock).
◦ Nuisance includes any act, omission, injury, damage, annoyance or offence to the
sense of sight, smell, or hearing which is or may be dangerous to life or injurious to
health or property.
◦ Nuisance is generally a continuing wrong.
◦ It must not be momentary though it could be temporary.
◦ A constant noise, smell or vibration is a nuisance, and ordinarily, an isolated act of
escape from noise cannot be considered to be a nuisance.
Kinds of Nuisance

◦ Nuisance is of two kinds:

◦ Public or common nuisance and private nuisance.
◦ A public nuisance is a crime (Sec. 268, IPC), whereas a private nuisance is a tort or civil wrong.
◦ Public Nuisance
◦ A public nuisance can be defined as an unreasonable interference with a right common to the
general public. Obstructing a public way by digging a trench, carrying on trades which cause
offensive smells or intolerable noises, etc. are examples of public nuisance.
◦ Public nuisance does not create a civil cause of action for any person.
◦ In order that an individual may have a private right of action in respect of a public nuisance
◦ (i) He must show a particular injury to himself beyond that which is suffered by the rest of the public.
◦ He must show that he has suffered some damage more than what the general body of the public
had to suffer.
Continued..
◦ (ii) Such injury must be direct and not a mere consequential injury, as
where one way is obstructed, but another is left open.
◦ (iii) The injury must be shown to be of a substantial character.
◦ In order to sustain a civil action in respect of a public nuisance, proof of
special and particular damage is essential. The object of this rule is to
avoid multiplicity of litigation.
◦ Campbell v Paddington Corpn. (1911)
◦ Dr. Ram Raj Singh v Babulal (AIR 1982 All 285)
◦ Leanse v Egerton (1943)
Continued..
◦ Private Nuisance
◦ Private Nuisance is the using or authorising the use of one’s
property, or anything under one’s control, so as to injuriously
affect an owner or occupier of property by physically injuring his
property or affecting its enjoyment by interfering materially with
his health, comfort or convenience.
◦ (i) Unreasonable interference
◦ Ii) Interference with the use or enjoyment of land
◦ Shaikh Ismail v Venkatanarasimhu (AIR 1936 Mad. 905),
Contd…
◦ Damages in Nuisance
◦ In an action for nuisance, actual damage is required to be proved. In the case of public nuisance, the
plaintiff can bring an action in tort only when he proves a special damage to him.
◦ In private nuisance, although damage is one of the essentials, the law will often presume it.
◦ Defences to Nuisance
◦ (i) Prescription
◦ (ii) Statutory authority
◦ Abatement of Nuisance
◦ An occupier of land is permitted to abate, i.e. to terminate by his own act a nuisance which is
affecting his land.
◦ Generally, before an abatement is made, a ‘notice’ to the other party is required unless the nuisance
constitutes a danger to the life or property. When the abatement is possible without going on the
wrong-doer’s land, the same may be done without notice.
Contd…
◦ It is a remedy which is not favoured by the law as it may lead to a breach
of the peace.
◦ A private individual cannot abate a public nuisance unless it has caused
him some special and peculiar harm; the remedy lies in the writ.