Essentials of Negligence

There are three essentials of negligence which plaintiff has to prove in the action for negligence

1. That the defendant owed duty to take care to the plaintiff;
2. the defendant has committed a breach of duty;
3. The breach of duty has resulted into injury to the legal right of the plaintiff as a consequences thereof.

• Duty to take care: There is no precise definition of degree of care.  Duty to take care is a relative term which differs from person to person and facts to facts of the case.  J Alderson observed that what ordinary prudent man would do or would not do at least that much of care to be taken by the person.  Here "duty to take care means a legal duty and not a moral or religious or a social duty.  Therefore it is for the plaintiff to establish that the defendant owed to him a specific legal duty to take care of which he has made a breach.  There is no general rule of law defining such duty.  It depends in each case whether a duty exists or not.  The duty to take care arises out of various relations, which may not be possible to numerate exhaustibly.

Duty depends on reasonable foreseeability of the injury to the plaintiff.  If at the time of the act or omission the defendant could reasonably foresee injury to the plaintiff, he owes a duty to prevent that injury and failure to do that makes him liable.  The degree of care which a man is required to use in a particular situation in order to avoid the imputation of negligence where is with the nature of the risk.  If the danger of doing injury to the person or property to another by the conduct is great, the individual is bound to use great care in order to avoid the foreseeable harm.  On the other hand, if the danger is slight, only a slight of the degree of care is required, in a suit for damages for negligence, the plaintiff must establish, first a duty to take care, secondly a breach of duty and thirdly that such breach was the proximate (direct) cause of the loss or injury to the plaintiff.

Case Law:

Markland Vs. Manchester Corporation[1] :     Deft. Corporation was responsible for maintenance of road.  One day there was leakage in water gathered forming a pool water on road.  Corporation neglected.  There was heavy cold on one evening which converted the water into ice.  Next morning when the driver was driving, the car the skidded over the ice and driver could not control the car.  Unfortunately in the accident one person was killed.  Widow of Deceased sued corporation for damages.

Court held that Corporation was liable, because there was breach of duty.

[1] 1936