INTRODUCTION
Most civil lawsuits fall under the category of tort law. With the exception of contractual conflicts, every claim that originates in civil court falls under tort law. The goal of this branch of law is to right a wrong and protect people from the wrongdoings of others, usually by awarding monetary damages as compensation. The primary purpose of tort law was to offer complete recompense for proven damages. DEFINITION OF NEGLIGENCE
Negligence comes from the Latin word ‘negligentia’, which meaning "to fail to pick up." In a broad sense, negligence refers to the act of being careless, but in legal meaning, it refers to the failure to exercise a standard of care that a reasonable person would have undertaken in a certain scenario. Negligence, according to Winfield and Jolowicz, is a breach of a legal duty of care by the plaintiff that causes the plaintiff to suffer unintended harm. Negligence is defined as failing to do something that a prudent or reasonable person would do or doing something that a prudent or reasonable person would not do.
ELEMENTS OF NEGLIGENCE
There are six basic elements that must be present in order to constitute the tort of negligence. They are:
1. DUTY OF CARE: It is one of the necessary requirements for a person to be held accountable for carelessness. It indicates that while executing an act, everyone owes a duty of care to another person. The plaintiff must be the focus of the duty.
Case law-Stansbele vs Troman (1948).
2. THE DUTY MUST BE TOWARDS THE PLAINTIFF: When the law acknowledges a relationship between the defendant and the plaintiff and requires the defendant to act in a specific way toward the plaintiff, it is called duty. It is not enough that the defendant owed the plaintiff a duty of care; it must also be established which is usually determined by the judge.
Case law- Bourhill v. Young (1943)
3. BREACH OF THE DUTY OF CARE: A plaintiff must show that the defendant owed him a duty of care in addition to proving that the defendant breached his obligation to the plaintiff. A defendant violates such a responsibility when he or she fails to perform it with reasonable care.
Case law- Blyth v. Birmingham Waterworks Co (1856).
4. ACTUAL CAUSE OR CAUSE IN FACT: In this case, the plaintiff suing the defendant for negligence has the burden of proof to show that the defendant's breach of duty was the actual cause of the plaintiff's damages.
5. PROMINENT CAUSE: refers to the "legal cause," or the primary cause of the injury as determined by the law. It may not have been the initial event that started a chain of events that led to an injury, and it may not have been the last event before the injury. Instead, it was a self-contained action that resulted in predictable outcomes without the need for outside help.
Case law- Palsgraf vs Long Island Railroad Co (1928).
6. CONSEQUENTIAL HARM TO THE PLAINTIFF AS A RESULT OF THE LAWSUIT: It is insufficient to show that the defendant did not use reasonable care. It must also be demonstrated that the defendant's failure to exercise reasonable care caused losses to the plaintiff to whom he owed a duty of care. The harm may fall into the following classes
• Physical harm
• Harm to the status
• Harm to possessions
• Monetary Loss
• Psychological Harm
Case law-Joseph vs Dr George Moonjely (1994)
RES IPSA LOQUITUR
The Latin phrase "res ipsa loquitur" means "the thing speaks for itself." It is a sort of circumstantial evidence that allows the court to determine that the defendant's negligence resulted in an uncommon event that resulted in injury to the plaintiff. Although the plaintiff has the burden of proving that the defendant acted carelessly, res ipsa loquitur means that if the plaintiff produces specific circumstantial circumstances, the defendant has the burden of proving that he was not negligent. The case of Byrne vs. Boadle gave rise to this notion (1863).
As a result, the three necessary prerequisites for applying this maxim are as follows: -
1)The cause of the damage must be under the defendant's or his servants' control.
2)The accident must be one that would not have occurred in the normal course of events if it had not been for negligence.
3)There must be no indication of the accident's true cause.
DEFENCES AVAILABLE
The following defences are available against the tort of negligence.
CONTRIBUTORY NEGLIGENCE
Contributory negligence indicates that if the plaintiff's negligence is the immediate cause of the loss, the plaintiff cannot sue the defendant for damages, and the defendant can use it as a defence. If it is proven that the plaintiff is not entitled to compensation from the defendant, the plaintiff cannot recover.
1)By exercising ordinary care, the plaintiff may have averted the defendant's negligence's consequences. 2)By exercising ordinary care, the defendant could not have averted the consequences of the plaintiff's carelessness.
3)Both the plaintiff and the defendant have shown a lack of reasonable care, and the former cannot sue the latter for the same. In the first instance, the defendant bears the burden of establishing contributory negligence, and in the absence of such proof, the plaintiff is not required to prove its absence.
Case of Shelton Vs L & W Railway (1946).
ACT OF GOD
An Act of God is a direct, violent, and unexpected act of nature that could not have been foreseen with any amount of human insight, and if foreseen, could not have been resisted with any amount of human care and ability. As a result, acts that are caused by natural forces fall into this category. For example, a storm, a tempest, an unusually high tide, or unusual rainfall. If a person is injured or killed as a result of a natural disaster, the defendant will not be held accountable as long as he can show it in court.
Case of Nichols v. Marsland (1876).
INEVITABLE ACCIDENT
An inevitable accident, often known as a negligence defence, refers to an accident that could not have been avoided by exercising ordinary care, prudence, and skill. It refers to a physically unavoidable mishap. Case of Brown v. Kendal (1850).
CONCLUSION
Negligence as a tort emerged from English law and is now recognised as a significant tort in Indian law. As previously stated, there are two sorts of negligence: civil and criminal, each with its own set of consequences. To establish that conduct was negligent, all of the basic elements must be established, including duty, breach of duty, damages, and actual and proximate cause. When a negligent act cannot be explained, the courts apply Res Ipsa Loquitur, an important negligence maxim. In addition, the defendant might employ the defences in a negligence suit to defend himself against a suit brought by the plaintiff.
REFERENCES
2.https://www.law.cornell.edu/wex/negligence
3.https://www.lawteacher.net/free-law-essays/tort-law/tort-of-negligence.php