- ABSTRACT
The world in today’s era runs by two major activities – A person exercising his rights and the corresponding another person following its duty. The general duty of care that one person owes towards its neighbour does not evolved all of a sudden. It took several decades for judges to recognise that the time of privity has gone and came the time where one is responsible to the world at large by his unlawful acts in torts law. However, the duty that this law recognises is a legal duty not any other kind of moral or religious duty. This legal duty is owed by a person towards his neighbour. A neighbour if one defines generally is one of a people whom we must keep in mind before undertaking any action. The very essence of this breach of legal duty is the very ingredient of negligence. Negligence consists in general terms “A breach of a legal duty primarily fixed by law”. In order to establish or determine that whether there exists a circumstance in which a legal duty of care has been breached or not the court will look first of all at the standard of care that is expected in the circumstances. The solution is to view the breach through a litmus test of a “Reasonable Foreseeability “principle. The researcher will look as to how through various judicial decisions and post-industrialization era the concept of the general duty of care emerged and how its breach constitutes the tort of negligence. The paper will discuss the extent to which a person can be liable for the consequences of his act.
Keywords: Reasonable Foreseeability, Proximity, Neighbour, Legal Duty, Duty of Care, Negligence, Ordinary and prudent, Injuria sine damno.
- INTRODUCTION
As we all know that there is a large range of duties imposed on us be it moral, personal or religious. The law, however, does not bother with any of these duties. It looks for the existence of legal duty to take care which is mainly three in numbers –General duty of care owed to the world at large, a professional relationship which imposes a duty of care like doctors and patients, relationship owed to our neighbours. Therefore, one can say that “The category of negligence are never closed”.[1]
A duty of care in common or general parlance is a legal obligation to avoid causing harm to other persons (whether directly or indirectly by the consequences of his act) and arises where harm is ‘reasonably foreseeable’ if care is not taken. There must be a sufficient relationship of Proximity between the two people in order for a duty of care to exist.[2]It is only when sufficient closeness exists between any two individuals that the act of one shall have a direct or indirect impact on another. An example of such a relationship would be a doctor and patient relationship or the relationship between drivers and other road users. Duty of care may be depicted in an idea which represents it as a formalization of the social contract, the implicit responsibilities held by individuals towards others within society. There is as such, not indispensable that the very concept of duty of care be defined by law or relevant statutes as it shall itself develop and evolve through the jurisprudence of common law with the passage of time.
- DEVELOPMENT OF DUTY OF CARE
Time changes and so thus law and so do the concept of what is reasonable according to a particular society. The standard, grounds for imposing liability also changes. At common law, duties were formerly limited to those with whom one was in privity one way or another, as exemplified by cases like Winterbottom vs. Wright (1842). In the early 20th century, judges began to recognize that the cold realities of the Second Industrial Revolution(in which end users were frequently several parties removed from the original manufacturer) implied that enforcing the privity requirement against hapless consumers had harsh results in many product liability cases. The idea of a general duty of care that runs to all who could be foreseeably affected by one’s conduct (accompanied by the demolishing of the privity barrier) first appeared in the judgment of Master of the Rolls, in Heaven v Pender(1883). Although Brett’s formulation was rejected by the rest of the court, similar formulations later appeared in the landmark cases in the UK, in Donoghue v Stevenson(1932). The case of Donoghue was product liability cases, and it expressly acknowledged and cited Brett’s analysis as their inspiration.
- Winterbottom vs. wright[3]:
The plaintiff Winterbottom had been contracted by the Postmaster-General to drive a mail coach supplied by the Postmaster. The defendant Wright had been contracted by the Postmaster to maintain the coach in a safe state. The coach collapsed while Winterbottom was driving and he was injured. He claimed that Wright had “negligently conducted himself, and so utterly disregarded his aforesaid contract and so wholly and negligently failed to perform his duty in this behalf. In Winterbottom vs. Wright, the court held that the plaintiff had no redress. The principle of Winterbottom meant that consumers who were injured by defective products in the 19th century had no legal action against the defective execution of a contract to which they were not expressly privy.
- Heaven v. Pender[4]:
The case occurred when an owner of a dry dock supplied ropes that supported a stage slung over the side of a ship. The stage failed because the supplied ropes had been previously burned. The failure of the stage injured an employee of an independent contractor working in the dry dock. The dry dock owner, the defendant, had failed in his duty of care to give reasonably careful attention to the condition of the ropes, prior to employing them to hold up the stage. The defendant was found liable. The House of Lords was content to decide the case on the basis a duty of care was owed by an occupier of land (the owner of the dry dock) to invitees (the employees of the contractor who were on the site to the economic benefit ultimately of the dry dock owner.
- Donoghue Vs. Stevenson[5]: Concept of Neighbour
This was one of the leading cases pertaining to the extent and scope of the duty of care. One cannot be made blindly liable for all the direct and indirect consequences of its actions which he could not have avoided even if he had taken a reasonable amount of care. Gone are the days where liability could be imposed directly without qualifying the test of reasonable foreseeability.
This case in its very essence created the modern concept of negligence, by setting out general principles whereby one person would owe a duty of care to another person. Also known as the “Paisley snail” or “snail in the bottle” case, the facts involved Mrs Donoghue drinking a bottle of ginger beer in a café in Paisley, Renfrewshire. A dead snail was in the bottle, he fell ill, and she sued the ginger beer manufacturer, Mr Stevenson. The House of Lords held that the manufacturer owed a duty of care to her, which was breached because it was reasonably foreseeable that failure to ensure the product’s safety would lead to harm of consumers.
Lord Atkin from the house of lord gave his judgement on the basis of neighbour principle, that people must take reasonable care not to injure others who could foreseeably be affected by their action. The court said that a neighbour is a person who we must keep in mind before we undertake an action. When manufacture conceives a product, he makes it with the end intention and it to sell in the market to a consumer. thus, the consumer plays in the mind of the manufacturer and it must keep in mind the consumer, the neighbour in this situation. Therefore, knowing that its actions would affect the consumer it would be liable to him. The plaintiff could, therefore, recover damages.
- Jacob Mathew v state of Punjab[6]
This was another leading case which assigned various meanings to the tort of negligence. According to this case, Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily reflect the conduct of human affairs would do or doing something which a prudent or 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 an injury to his person or property.
Distinguishing between Negligence as a tort and as a crime, the Apex court, in this case, observed that “To fasten liability in criminal law, the degree of negligence has to be higher than that of negligence enough to fasten liability for damages in civil law. The essential ingredient of mensrea cannot be excluded from consideration when the charge in a criminal court consists of criminal negligence”.
In order to establish whether a duty of care has been breached the court will look first of all at the standard of care that is expected in the circumstances. The breach must not be one of Damnum sine Injuria i.e. (damage without legal injury) but should be one of Injuria sine damno i.e. (legal injury without damage).
The standard of care is determined by looking at what a reasonable person would have done (or not done) in the same circumstances. Where a defendant has acted in an unreasonable way or their actions fell well below the standard expected they will be found to have breached their duty of care. The most common examples are those that apply to everyday activities such as driving. All road users (including pedestrians) are expected to behave according to what is reasonable.
- STANDARD OF CARE ALONG WITH MAGNITUDE OF RISK AND DETERMINATION OF NEGLIGENCE
- Standard of care:
The standard of care is seen as a quantum of care and diligence a person must take before understanding a particular task as a reasonable person. So long a person takes a reasonable amount of caution and care while doing a task it would not amount to a tort.
In the case of professionals, the standard of care is judged as per the members of the profession. e.g. when a motorcycle driver lands in an accident with his pillion rider for no fault of his, his care extends to giving first aid, but when an injured person is brought to a hospital the standard of care to be exercised by the doctor shall be far more. The more senior the level of the doctor the more amount of care he is supposed to exercise.
- The magnitude of risk involved:
Where the task is riskier and more is the inherent danger in a fact situation and more is the level of care and caution which needs to be exercised. At the same time when it is a mundane everyday activity, the level of care to be exercised will come down immensely.[7]
- Case of Butterfied v. Forrester:[8]
The defendant negligently left a pole across the highway. Plaintiff was riding in town and there was just enough light left to discern the obstruction within 100 yards. The plaintiff who was driving carelessly did not notice the pole and met with an accident. A witness testified that if the Plaintiff had not been riding very hard, he might have observed and avoided the pole. Plaintiff sued Defendant for negligence. The trial court directed the jury that if the Plaintiff was riding along the street extremely hard, and without ordinary care, they should find a verdict for the Defendant. The jury returned a verdict for Defendant and Plaintiff appealed.
- Bolton v. stone[9]
A batsman hit a ball which flew much beyond than the boundaries of the highly fenced stadium to hit the plaintiff standing more than 100 yards from the pitch. The court held that it was highly unlikely that such an injury could be foreseen and the level of such risk was very less and therefore the likelihood of injury was lesser in this case.
- Determining Whether There Was an Injury
Typically speaking, in order to meet the injury element of the prima facie case, the injury must be one of two things: bodily harm, harm to property.
A pure economic loss will usually not meet the injury requirement. Sometimes emotional distress/harm may meet the bodily harm requirement (even if there is no accompanying physical harm). Damages place a monetary value on the harm done, following the principle of restitutio in integrum (Latin for “restoration to the original condition”). Thus, for most purposes connected with the quantification of damages, the degree of culpability in the breach of the duty of care is irrelevant. It is upon the court to decide and determine every question which would ultimately enable the parties to obtain the final judgement in the case in question, such as the proper measure of damages to be applied, the remoteness of damages and the amount which the plaintiff is actually entitled to as damages.[10]Once the breach of the duty is established, the only requirement is to compensate the victim.
- Consideration for service: –
The higher the amount of compensation paid the higher the threshold of the duty of care towards another.
- HARM < ACTIVITY PROPORTION
Sometimes certain activity needs to have proceeded in spite of certain risk and harm associated with it. So, in cases where there is a risk albeit a very small one as contrasted to the benefits the activity yields the court allows the activity to proceed.
Two approaches to compute in negligence:
- The test of directness: The test of directness states that when a person commits a negligent act, the same act, or other offspring acts and either of them causes damage a person is responsible for such directness as he caused the principal or the originating act.[11] This test of directness has, however, become obsolete and is not followed in today’s era because of changing scope of time and circumstances.
- The approach of reasonable foresight: The modern approach of negligence is understood as follows-Negligence constitutes a breach of the duty imposed by law where such duty owed where the person so responsible is liable for such reasonably foreseeable damage which would ensue[12].
- CONCLUSION
So, to conclude one can say that two presupposed ides shall hold true in any case:
- Duty of care is directly proportional to the magnitude of the risk involved.
- The concept of duty of care is applicable only when it qualifies the test of reasonable foresight.
Although the idea of a general duty of care is now widely accepted, there are significant differences among the common law jurisdictions concerning the specific circumstances under which that duty of care exists. Obviously, courts cannot impose unlimited liability and hold everyone liable for everyone else’s problems; as Justice Cardozo put it, to rule otherwise would be to expose defendants “to a liability in an indeterminate amount for an indeterminate time to an indeterminate class”. There must be some reasonable limit to the duty of care
[1]Donoghue v. Stevenson, A.C. 619 (1932)
[2] Mysore state Road Transport corporation v. Albert Dias, A.I.R. 1973 Mysore 240, at 242
[3] Winterbottom v Wright, 10 M. and W. 109, at 114, (1842).
[4] Heaven v Pender,11 Q.B. D. 503, (1883)
[5] Donoghue v. Stevenson, A.C. 562. (1932)
[6] Jacob Mathew v state of Punjab, A.I.R. 2005 S.C. 3180
[7] Glasgow corporation v. Muir, A. C. 448, at 456, (1943) 😉 lord Macmillan., 2 All E.R. 44, at 48, (1943)
[8] Butterfied v. Forrester, 11 East 60, (1809)
[9] Bolton v Stone,A.C. 850(1951) ; 1 All E.R. 1078 (H.L.), (1951)
[10] Shaikh Gafoor v state of Maharashtra,A.I.R 2008 (NOC) 1637 (Bom.).
[11] Re Polemis and Furness, Withy and CO. Ltd, 3 K.B. 560, (1921).
[12] Rigby v. Hewitt 5 Ex. 240,243. (1850)
