The tort of negligence comprises
of a breach of duty to care caused due to omission to do something. It is the
failure to exercise the care that a reasonably prudent man would observe under
given circumstances. The term ‘negligence’ can mean two things under the law of
Tort. It might be the mode of committing a tort or it might be a separate tort
in itself.
Essential elements of negligence
(1) Duty
to take care owed by the defendant to the plaintiff
(2) Breach
of duty committed by the defendant
(3) Breach
of duty resulting in injury to the plaintiff
In the case of Donoghue v
Stevenson, the general principles regarding the tort of negligence were laid
down. In this case, a snail was found in Mrs. Donoghue’s bottle of ginger beer
and she fell ill after drinking the contents of the bottle. The manufacturing
company was held liable. 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.[1]
Duty to take care- it means a
legal duty and not a moral, religious or social duty. It depends upon the
reasonable foresee ability of injury. Where the injury cannot be foreseen or is
too remote, there is no liability for damage.
Burden of proof- in case of
negligence, the burden of proof lies on the plaintiff to prove negligence on
the part of the defendant. Once it has been proved, the burden lies on the
defendant to prove that the incident was a result of an inevitable incident, an
act of God (vis major)[2]
or there was contributory negligence on the part of the plaintiff.
Medical negligence- doctors are
bound by a duty to care for the best interests of their patients and provide
the best treatment. Any negligence in their treatment may result in major
health problems or even death of the patient. Accidentally leaving surgical
equipments inside the body, negligently performing sterilization operations,
providing wrong treatment, or causing abortions or amputations due to wrongful
or delayed treatment, etc are issues under which the doctor may be held liable
for medical negligence.
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