Negligence

1. Meaning

Negligence is both a state of mind and an independent tort. As a tort it is “the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do” (Alderson B., Blyth v. Birmingham Waterworks Co., 1856). Winfield defines it as the breach of a legal duty to take care which results in damage, undesired by the defendant, to the plaintiff. The essentials are: a duty of care owed to the plaintiff, breach of that duty, and damage resulting from the breach.

2. Duty of care

In Donoghue v. Stevenson (1932) the plaintiff’s friend bought her a bottle of ginger beer in a café. The bottle was opaque. She drank some, then found the decomposed remains of a snail in it, and suffered shock and gastro-enteritis. She had no contract with the manufacturer. The House of Lords held that he owed her a duty of care. Lord Atkin stated the neighbour principle: “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour,” and neighbours are “persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation.”

In Caparo Industries plc v. Dickman (1990) the House of Lords refined this into a three-stage test: (1) the damage must be reasonably foreseeable; (2) there must be a relationship of proximity between the parties; and (3) it must be fair, just and reasonable to impose a duty. Auditors were held to owe no duty to investors who bought shares relying on the audited accounts.

Indian courts apply the same tests. In Rajkot Municipal Corporation v. Manjulben Jayantilal Nakum, 1997 INSC 34, (1997) 9 SCC 552, a roadside tree fell and killed a pedestrian. The Supreme Court, applying foreseeability, proximity and fairness, held that the Corporation owed no actionable duty in the circumstances and set aside the award.

Omissions. There is no general duty to rescue a stranger. A duty to act arises from a special relationship or an undertaking: employer and employee, school and pupil, carrier and passenger, or a person employed to keep others safe.

3. Breach and the standard of care

The standard is that of the reasonable man: objective, not dependent on the defendant’s own ability. The care required rises with the risk. Courts weigh:

• the likelihood of harm: in Bolton v. Stone (1951) a cricket ball hit out of the ground about six times in thirty years injured a passer-by; the risk was so small that the club was not negligent;
• the gravity of harm: in Paris v. Stepney Borough Council (1951) an employer was negligent in not giving goggles to a workman already blind in one eye;
• the cost of precautions and the social value of the act.

A person who professes a special skill must show the skill of an ordinary competent member of that profession.

4. Damage and causation

Negligence is actionable only on proof of damage. The plaintiff must show that the breach caused the damage, usually by the “but for” test: would the harm have happened but for the defendant’s breach? In Barnett v. Chelsea and Kensington Hospital Management Committee (1969) a casualty doctor negligently sent home a man who had been poisoned with arsenic, but he would have died even with treatment, so the hospital was not liable. The damage must also not be too remote (see the note on remedies and remoteness).

5. Res ipsa loquitur

“The thing speaks for itself.” Ordinarily the plaintiff must prove negligence. The maxim allows negligence to be inferred where the facts themselves suggest it. The conditions were stated by Erle C.J. in Scott v. London and St. Katherine Docks Co. (1865), where bags of sugar fell from a crane on a customs officer: where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those in control use proper care, it affords reasonable evidence, in the absence of explanation, that the accident arose from want of care. (Compare Byrne v. Boadle, 1863, a barrel of flour falling from a warehouse window.)

• Shyam Sunder v. State of Rajasthan, 1974 INSC 50, AIR 1974 SC 890. A government truck caught fire on the road shortly after starting; a passenger jumped out and died. The truck had a defective radiator. The Court applied the maxim, and the State was liable.
• Syad Akbar v. State of Karnataka, 1979 INSC 126, AIR 1979 SC 1848. A bus driver, trying to avoid a cyclist, ran over a child. The Court explained that res ipsa loquitur is a rule of evidence that permits an inference of negligence in civil cases. In a criminal prosecution it cannot shift the burden to the accused; the prosecution must still prove guilt beyond reasonable doubt.

6. Professional and medical negligence

The test in Bolam v. Friern Hospital Management Committee (1957) is that a doctor is not negligent if he acted in accordance with a practice accepted as proper by a responsible body of medical opinion. In Jacob Mathew v. State of Punjab, 2005 INSC 334, (2005) 6 SCC 1, a patient died in hospital when the oxygen cylinder brought to help him was found empty, and doctors were prosecuted. The Supreme Court adopted the Bolam test for India and held that:

• a professional is negligent if he lacked the skill he professed or did not exercise it with reasonable competence; an error of judgment or the choice of one accepted course over another is not negligence;
• for criminal liability the negligence must be gross or reckless, a higher degree than in civil cases; and
• a private complaint against a doctor should be backed by credible medical opinion before the doctor is prosecuted.

Kusum Sharma v. Batra Hospital and Medical Research Centre, 2010 INSC 95, (2010) 3 SCC 480, summarised these principles for civil claims. Patients may also claim for deficiency in medical service under the Consumer Protection Act, 2019.

7. Contributory negligence and nervous shock

Contributory negligence is the plaintiff’s own failure to take reasonable care for his safety, which contributes to the harm. At common law it was a complete defence (Butterfield v. Forrester, 1809, a rider who galloped into a pole left across the road). The harshness was softened by the last opportunity rule (Davies v. Mann, 1842, a donkey tethered on the road and run down by a driver who could have avoided it). England abolished the all-or-nothing rule by the Law Reform (Contributory Negligence) Act, 1945, under which damages are apportioned according to each party’s share of responsibility. India has no general statute, but courts apportion on the same principle. In Municipal Corporation of Greater Bombay v. Laxman Iyer, 2003 INSC 568, (2003) 8 SCC 731, the Supreme Court explained that contributory negligence means the plaintiff’s want of care for his own safety which contributes to the damage, and that where both are at fault damages are reduced in proportion. A child is judged by the standard of a child of that age.

Nervous shock is a recognised psychiatric illness caused by shock, not mere grief. A plaintiff within the zone of physical danger can recover (Dulieu v. White, 1901). A bystander outside it generally cannot (Bourhill v. Young, 1943). A close relative who witnesses the accident or its immediate aftermath may recover (McLoughlin v. O’Brian, 1983), subject to the limits of close ties of love and affection and proximity in time and space (Alcock v. Chief Constable of South Yorkshire, 1992).

8. Problem: the lifeguard on his phone

A lifeguard employed at a public swimming pool is busy on his mobile phone. A boy of ten gets into difficulty in the deep end and drowns. Discuss the liability of the lifeguard and the pool owner.

Issue. Whether the lifeguard owed and broke a duty of care, whether his breach caused the death, and whether the owner is vicariously liable.

Law. There is no general duty to rescue, but a duty to act arises where a person undertakes responsibility for the safety of others. Duty is tested by foreseeability, proximity and fairness (Donoghue, Caparo); breach by the standard of a reasonably competent lifeguard; causation by the “but for” test (Barnett). An employer is liable for the negligence of his servant in the course of employment (Century Insurance).

Application.

• Duty. The lifeguard is employed for exactly this purpose. Drowning of a swimmer is the obvious foreseeable risk; the boy is in direct proximity; it is plainly fair to impose a duty. This is not a stranger’s omission but a failure in an undertaken task.
• Breach. A reasonable lifeguard keeps the water under constant watch. Using a mobile phone on duty falls well below that standard. The precaution (putting the phone down) costs nothing and the harm risked is death.
• Causation. The plaintiffs must show that an attentive lifeguard would probably have seen the boy and reached him in time. In a pool under watch that inference is strong, and res ipsa loquitur may help: a child does not ordinarily drown in a supervised pool if the supervisor is attentive.
• Defences. Volenti does not apply: a swimmer does not consent to the lifeguard’s negligence. Contributory negligence is unlikely for a ten-year-old judged by the standard of a child; if he entered the deep end against posted rules, damages may be reduced, not refused.
• The owner. The lifeguard was negligent in doing his job, so the owner is vicariously liable (Century Insurance: careless performance of authorised work). The owner may also be directly liable for inadequate staffing or for allowing phones on duty. If the pool belongs to a municipality, running a pool is not a sovereign function (Nagendra Rao).

Conclusion. The lifeguard and the owner are jointly and severally liable. The parents can claim damages under the Fatal Accidents Act, 1855 for loss of the child, or a complaint for deficiency of service under the Consumer Protection Act, 2019. The lifeguard may also face prosecution for causing death by negligence under section 106 of the Bharatiya Nyaya Sanhita, 2023.

How this is examined

As an essay: “Define negligence and explain its essentials,” “Explain res ipsa loquitur with cases,” or “Discuss contributory negligence” (the last is a regular KSLU question). Medical negligence and Jacob Mathew make a good short note, as does nervous shock. The lifeguard problem appeared in the January 2026 paper; structure the answer as duty, breach, causation, defences and the employer’s liability.