We live in a civilized society. We owe a duty of care to our neighbors and others who may be adversely affected by our acts. When we breach this duty of care imposed on us by law, we commit the tort of negligence.
- The defendant owed a duty of care to the plaintiff
- The defendant breached that duty, either totally or partially.
- The plaintiff suffered damage as a result of this breach of duty.
Duty of care: for showing an act of negligence, the plaintiff must show that the defendant owed the plaintiff a legal duty of care. A legal duty is different from moral, social or religious duty.
Example: In case of Ramu vs. Raghu, the plaintiff filled an action for negligence against the manufacturer claiming that she had been seriously injured by the contents of the drink. The defendant claimed in his defense that he had no duty as she did not buy the bottle. But the court held that the manufacture owed a duty of care to the plaintiff and to all its consumers. The court also held that the manufacturer had breached the duty and caused damage, and was therefore negligent. I would like to also state that the duty is only there where the injury is foreseeable.
Breach of duty: After having established that the defendant owes the plaintiff a duty of care it must then be proven that the duty was breached. For seeing whether due care was taken, one must what was the standard of care required in that situation. If the care taken is less than standard care than there is a breach of duty.
Example: The Municipal Corporation of Delhi is responsible to maintain public parks in Karol Bagh. A few children were playing on the swings when one of the swings broke and injures a child. The MCD is liable for negligence as they breached their duty of care towards children in the park which caused injury to a child.
Damage as a result of Breach of Duty: in order to succeed in a legal action based on negligence, it is necessary to show that the plaintiff suffered some damage. The plaintiff has to show the incident happened and it caused injury to him. Also the defendant was in control of or responsible for whatever caused the incident.
Example: Kamal, a well-trained surgeon, leaves a mop inside a patient’s abdomen while operating on him. In these circumstances, the most probable conclusion is that such injury would not have occurred but for the negligence of Kamal.