Tortuous liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages.” Dr. S.K. Kapoor, Law of Torts and Consumer Protection Act, 6th Edition 2003; Published by Central Law Agency, Allahabad.

Ratanlal and Dhirajlal, The Law of Torts, 24th Edition 1997 Reprint 2002; Published by Wadhwa and Company, Nagpur, India. DUTY TO WHOM: Donoghue v. Stevenson, 1932 AC 562 carried the idea further and expanded the scope of duty saying that the duty so raised extends to your neighbour. Explaining so as to who is my neighbour LORD ATKIN said that the answer must be “the persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question”. I. MEANING: In everyday usage, the word ‘negligence’ denotes mere carelessness. In legal sense it signifies failure to exercise standard of care which the doer as a reasonable man should have exercised in the circumstances. In general, there is a legal duty to take care when it was reasonably foreseeable that failure to do so was likely to cause injury. Negligence is a mode in which many kinds of harms may be caused by not taking such adequate precautions. DUTY MUST BE TOWARDS THE PLAINTIFF- It is not sufficient that the defendant owed a duty to take care. It must also be established that the defendant owed a duty of care towards the plaintiff. In Nichols v. Marsland, (1875) LR 10 Ex.255; the defendant had a series of artificial lakes on his land in the construction or maintenance of which there had been no negligence. Owing to an exceptional heavy rain, some of the reservoirs burst and carried away four country bridges. It wa held that, the defendant was not liable as the water escaped by the act of God.Discussion of hundreds of recent cases, including Michael v Chief Constable of South Wales , Robinson v Chief Constable of West Yorkshire Police and Poole BC v GN (duty of care); Patel v Mirza (illegality); Wilkes v DePuy International (product liability); Lachaux v Independent Print Ltd (defamation); O v Rhodes (intentional infliction of physical or emotional harm); Willers v Joyce (malicious prosecution); JSC BTA Bank v Ablyazov (No.14) (conspiracy); and five major Supreme Court decisions on vicarious liability and non-delegable duties, including Barclays Bank v Various Claimants and WM Morrison Supermarkets v Various Claimants CONTRIBUTORY NEGLIGENCE: It was the Common law rule that anyone who by his own negligence contributed to the injury of which he complains cannot maintain an action against another in respect of it. Because, he will be considered in law to be author of his wrong. In Achutrao Haribhau Khodwa v. State of Maharashtra (1996) 2 SCC 634; a cotton mop was left inside the body by the negligence of the doctor. The doctor was held liable. Access-restricted-item true Addeddate 2021-04-29 19:00:43 Associated-names Winfield, P. H., Sir (Percy Henry), 1878-1958. Tort Boxid IA40097508 Camera USB PTP Class Camera Collection_set printdisabled External-identifier The second factor the courts will take into account to establish negligence is breach of duty. This is commonly known as the ‘reasonable man’ test, and simply asks whether the defendant has done something a reasonable person would not have done, or failed to do something that a reasonable person would not have. Baron Alderson in Blyth v Birmingham Waterworks Co said:

The courts must first consider whether the consequences of the defendant’s acts were reasonably foreseeable. For example, damage or harm were reasonable foreseeable in Kent v Griffiths but not in Bourhill v Young. In Municipal Corporation of Delhi v. Sushila Devi, AIR 1999 SC 1929; a person passing by the road died because of fall of branch of a tree standing on the road, on his head. The Municipal Corporation was held liable. WINFIELD AND JOLOWICZ: According to Winfield and Jolowicz- Negligence is the breach of a legal duty to take care which results in damage, undesired by the defendant to the plaintiff [Ref. Winfield and Jolowicz on Tort, Ninth Edition, 1971, p. 45]. A new section on damage in the law of negligence, incorporating discussion of Dryden v Johnson MattheyThirdly, whether in all circumstances it would be fair, just and reasonable for the law to impose such a duty of care. It was held not to be fair, just and reasonable to impose a duty on the police in Hill v Chief Constable of West Yorkshire. However, a duty was imposed on the fire brigade in Capital and Counties plc v Hampshire County Council.

In Brown v. Kendal, (1859) 6 Cussing 292; the plaintiff’s and defendant’s dogs were fighting, while the defendant was trying to separate them, he accidentally hit the plaintiff in his eye who was standing nearby. The injury to the plaintiff was held to be result of inevitable accident and the defendant was not liable. harm to property, i.e. land and buildings and rights and interests pertaining thereto, and his goods; ACT OF GOD OR VIS MAJOR: It is such a direct, violent, sudden and irresistible act of nature as could not, by any amount of human foresight have been foreseen or if foreseen, could not by any amount of human care and skill, have been resisted. Such as, storm, extraordinary fall of rain, extraordinary high tide, earth quake etc. The first element in the claimant’s case is whether the defendant owed them a duty of care. This was first established by the speech of Lord Atkin in Donahue v Stevenson. Lord Atkins stated that: INEVITABLE ACCIDENT: Inevitable accident also works as a defence of negligence. An inevitable accident is that which could not possibly, be prevented by the exercise of ordinary care, caution and skill. it means accident physically unavoidable.Thirdly, the courts will consider the seriousness of harm as sometimes, the risk of harm may be low but this will be counter-balanced by the gravity of harm to a particularly vulnerable claimant. See, for example , Paris v Stepney Borough Council Discussion of hundreds of recent cases, including Michael v Chief Constable of South Wales, Robinson v Chief Constable of West Yorkshire Police and Poole BC v GN (duty of care); Patel v Mirza (illegality); Wilkes v DePuy International (product liability); Lachaux v Independent Print Ltd (defamation); O v Rhodes (intentional infliction of physical or emotional harm); Willers v Joyce (malicious prosecution); JSC BTA Bank v Ablyazov (No.14) (conspiracy); and five major Supreme Court decisions on vicarious liability and non-delegable duties, including Barclays Bank v Various Claimants and WM Morrison Supermarkets v Various Claimants