Criminal Trident Pack: IPC, CrPC and IEA by Sr. Adv. G.S Shukla and Adv. Raghav Arora
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  • Negligence is the failure to take the care that a person is legally obligated to do given the circumstances.
  • There are three aspects that make up negligence: a duty to care, a breach of duty, and damages.
  • The maxim Res Ipsa Loquitur shifts the burden of proof to the defendant when it is applied. In most cases, it is the plaintiff's responsibility to show evidence of the defendant's negligence but when this principle is used, there is a difference.


Negligence comes from the Latin word negligentia, which denotes "to fail to pick up." Negligence is defined as being careless in one's actions or omissions. In the legal sense, it refers to the failure to follow a standard of care that a reasonable person would have followed in a given situation. According to Winfield and Jolowicz, it is a breach of a legal duty of care by the plaintiff that causes the plaintiff to suffer unintended harm. Further, some torts, such as trespass and nuisance, may include negligence. However, it is still considered a different tort in itself, involving essential conditions which would be discussed subsequently.

Generally, in most cases, the plaintiff must establish by proof that the defendant was negligent in his or her actions but, in many cases, the defendant is the only one who knows how and why the tragedy had occurred. In such a scenario, the plaintiff could use the Res Ipsa Loquiturwhich states "the event speaks for itself" as an aid to the rule of evidence. Therefore, this article examines the basics of negligence and the applicability of the Res Ipsa Loquitur principle in negligent actions, concerning various landmark cases.


Three key elements must be present to commit the tort of negligence and only if all of the elements are met can an act be classified as negligence. They are as follows;

  • The defendant owed a duty of care to the plaintiff.
  • The defendant failed to fulfill that obligation.
  • Lastly, as a result of which, the plaintiff incurred harm.

The aforementioned conditions to constitute negligence have been explained below in a detailed manner for a better understanding referring to numerous cases.

Duty of Care

The duty of care is one of the 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. Although this obligation exists in almost all acts, in negligence, the duty is considered to be legal and cannot be illegal or unlawful or of moral, ethical, or religious nature. Further, there is no uniform rule of law defining the duty of care; it develops from a variety of relationships, and whether or not a duty exists depends on the circumstances of each case. To understand this better, in the case of Stansbele v Troman (1948) we see that, a designer was hired to carry out decorations in a residence. Later on, without closing the doors or telling anyone, the decorator fled the house. During his absence, a thief broke into the house and stole certain items, the worth of which the decorator claimed from the owner of the house. The court held the decorator to be responsible because he was careless in leaving the house open and breached his duty of care.

A key point to note here is that 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 demonstrated, which is usually determined by the judge.The notion that we each have a duty of care to our neighbor or someone we could fairly expect to be affected by our conduct or omissions has evolved since the decision of Donoghue v. Stevenson (1932). The basic facts of this case are that A bought a bottle of ginger beer for D, his lady friend, from a shop.She drank a bit of it, and when the rest was poured into her glass, the decaying body of a snail drifted around in the ginger beer. It was contended that the contents of the bottle could not be seen from the outside because the container was opaque and capped with a metal top. D claimed that she became seriously ill after drinking a portion of the tainted content and sought damages. The defendants argued that they were not liable since they owed the plaintiff no duty of care and she was not a party to the contract. Although there was no contract between the manufacturer and the person who suffered the damage, the House of Lords held that an action for negligence would arise because the plaintiff was entitled to a duty of care even though the defective good, a bottle of ginger beer with a snail in it, was purchased by her friend. It was, therefore, ordered that the manufacturer owed the ultimate consumer a duty of care.

Breach of Duty to take care

The second crucial need is a breach of the duty of care, which can be better understood through case laws.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. Thus, a defendant violates such a responsibility when he or she fails to fulfill it with reasonable care. In other words, as stated in the case of Blyth v. Birmingham Waterworks Co (1856),a violation of a duty of care indicates that the person who has an existing duty of care should act sensibly and not omit or commit any act that he is required to do or not do. In simple words, it refers to a failure to meet a standard of care.

In the case of Ramesh Kumar Nayak vs. Union of India (1994),the post authorities failed to keep a post office's compound wall in good condition, resulting in the defendant's injuries. The postal authorities were found to be accountable since they had a duty to maintain the post office buildings, and the collapse occurred as a result of their failure to do so. As a result, they were obligated to pay compensation.

Another interesting case to mention isMunicipal Corp. of Delhi v. Subhagawanti (1966),in which a clock tower in Chandini Chowk, Delhi, collapsed, killing several people. The construction to note here was 80 years old, compared to the typical life of 40-45 years. The court ruled that because the Municipal Corporation in charge of the tower failed to conduct periodic inspections and make necessary repairs, it was obliged to pay compensation.

We can see from the cases above that the emphasis is placed on the standard of care, failure of which leads to a breach of duty. Thus, the following factors would be explained below with citing a few cases to define the appropriate degree of care:

i. the importance of the object to be obtained,

ii. the severity of the risk involved, and

iii. the amount of consideration for which the services are provided.

In the case of Latimer v. AEC Ltd. (1953), the respondent's factory was flooded with water as a result of severe rain, and some oily substance was mixed with the water. After the rainwater had drained away, an oily layer had formed on the floor, making it slippery. The Respondent spread all of the available sawdust on the floor, however, certain spots remained uncovered, and put-up signs for the slippery surface to be noticed. L, a respondent's factory employee, slipped on one of these oily areas and was hurt. In a negligence lawsuit, L claimed that the respondent should have shut down the factory as a precaution until the risk had subsided.The House Lords decided that the risk posed by the slippery floor was not substantial enough to justify shutting down the factory, which employed over 4000 people, and that the respondent acted prudently, and hence was not liable for negligence.

Secondly, toxic berries were planted in a public garden under Glasgow Corp.'s management in the case of Glasgow Corp. v. Taylor (1922). The gist is that the berries resembled cherries, and a 7-year-old child died after eating them. It was discovered that the berry-bearing plant was not adequately gated, nor was there a warning sign posted about it. As a result, the corporation was found to be accountable for carelessness. Likewise in another case Kumari v. TN (1992), a six-year-old son died, when he fell into a ten-foot-deep sewerage tank in Madras.The Hon'ble Supreme Court ordered the TN State to pay Rs. 50,000/- in compensation, with interest at 12%, and further held that the aforementioned sum might be recovered from the local government or whoever was guilty of leaving the sewerage tank open.

To comprehend the last factor under the standard of care, it is essential to see the case of Klaus Mittelbachert v. East India Hotels Ltd. (1992), in which Lufthansa, a German airline, and Hotel Oberoi InterContinental of Delhi agreed to have Lufthansa's crew remain as hotel guests. During their stay at the hotel, Klaus, a copilot, went to the hotel's pool and due to the pool's poor design, his head hit the bottom, causing major head injuries which resulted in paralysis and died after 13 years.The hotel's argument that Klaus was a stranger to the contract was rejected, and the Delhi High Court decided that he may file the complaint as a beneficiary of the contract. It further stated that a 5-star hotel charging a high fee for its services owes a high degree of care in terms of service quality. As a result, any service failure that affects guests would be subject to strict liability.


The third essential element is that the plaintiff must also suffer harm as a result of the defendant's violation of duty. The plaintiff must additionally establish that the loss suffered as a result of the defendant's negligence is not insignificant. Meanwhile the court, on the other hand, is solely responsible for determining the damages. To put it another way, it is necessary to show a relationship between the defendant's negligence and the plaintiff's loss, after which the court would determine the quantum of damages.


In tort law, the plaintiff, or the person who is the victim of the tort, bears the burden of proof in proving someone's negligence. Trying to prove that the defendant was at fault, as well as gathering evidence against his act or omission, becomes extremely difficult. Keeping this in mind, the principle of Res Ipsa Loquitor was established, allowing a plaintiff to demonstrate negligence through circumstantial evidence.It 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 facts, the defendant has the burden of proving that he was not negligent.

Further, the plaintiff must meet a few requirements before obtaining compensation under the Res Ipsa Loquitor tort. They are;

i. The plaintiff's injury would have not occurred unless someone had acted negligently.

ii. The evidence presented eliminates all possibilities of the plaintiff's or a third party's responsibility.

iii. The defendant owed the plaintiff a duty of care, which he failed to fulfill.

To understand this principle better the case of Byrne vs. Boadle (1863) is important to refer were, a plaintiff was walking down the street when he was injured by a falling barrel of flour that had tumbled out of a second-floor window. The plaintiff's lawyer contended at trial that the facts spoke for themselves and that the warehouse's negligence was obvious because no other explanation could explain the plaintiff's injuries.The court ruled in favor of the plaintiff, stating that the circumstances were unique in this case and that a presumption of carelessness might exist because a barrel of flour cannot fall on someone's head at random if the party is sufficiently careful.

The Indian case that could be referred here is firstly the case of Aparna Dutta v. Apollo Hospital Enterprises Ltd. (2000) where the plaintiff underwent uterus removal surgery at the defendant's hospital after a cyst was discovered. Later, an abdominal pack was left in her abdomen by the surgeon who operated, which was removed by a second surgery. The Madras High Court decided that leaving an object in the body following surgery is an instance of res ipsa loquitur. A compensation of Rs. 5,80,000/- was ordered to be paid by the doctor who performed the procedure and the hospital authorities.

And in another case of Pushpabai v. Ranjit Ginning & Pressing Co. (1977), while driving the respondent company's car, the manager caused an accident, resulting in the death of another respondent company employee who was permitted to take the lift. The car was discovered to have driven to the right side of the road and collided with a tree causing, severe damages to the front end of the vehicle by displacing the engine and steering wheel.The Supreme Court applied the doctrine of res ipsa loquitur because the accident would not have occurred if the driver had exercised reasonable caution and made the respondent accountable.


To conclude, negligence as a tort emerged from English law and is now recognized as a significant tort in Indian law as well. To establish that an act was negligent, as stated the three elements must be established - duty, violation of duty, and damages. In addition, where a negligent act cannot be explained, the courts apply an essential negligence maxim known as Res Ipsa Loquitur.Additionally, it's worth noting that the plaintiff always bears the burden of establishing negligence, and to hold the defendant accountable for negligence, the plaintiff must either admit responsibility or present sufficient evidence to the court to support a finding of gross negligence. Therefore, the plaintiff's best choice is to depend on the principle of res ipsa loquitor if he can only prove that the accident happened without being able to show why it happened.

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