Negligence is a term of art, but has different meanings in different jurisdictions. In ‘Tort’, damage is an essential ingredient but that element is not necessary in master servant relationship. In criminal law, there are channels of offences based on negligence in which loss or injury is immaterial; it is enough if the act is likely to cause injury or endanger life. Operating a patient without consent is an example of negligence even without actual damage. Dictionary meaning of term ‘Negligence’ is ‘Lack of Proper Care’.
Under the tort liability law, also known as "the law of negligence", a person is considered liable for committing a tort, if they have failed to satisfy the standard of care - a standard determined by the behavior of a reasonably prudent individual. The tortfeasor 's actions are measured against the actions of a reasonably prudent person, and they are found to be below-standard, the individual is guilty of negligence. The tort liability law applies mainly to unintentional torts. In the case of intentional torts and strict liability torts, the defendant is found guilty regardless of negligence. If a wrongful act is done deliberately, the possibility of negligence is ruled out automatically.
We know now that this liability gained its basis from the case of Rylands v. Fletcher (1868) . It is a liability for which defendant is held liable even if he was not negligent, had no intention of causing that harm or even made positive efforts to avert the same. Because of this nature of it , it is also referred as “no fault” liability. According to this rule if a person brings any dangerous thing on his land and keeps it and that thing escapes and does the very probable mischief , the person brought it there or who is the owner of this thing will be liable even if he has not been negligent . The liability here arises not because of any fault of defendant but because of the dangerous nature of the thing brought to the land and escape of such thing.
The duty of care imposed by law is measured by the degree of carefulness that a reasonable person would exercise in a given situation. Duty to act is a person is under a duty to everyone at all times to exercise reasonable care for the safety and protection of the people and their property. However, in certain special cases, no one is required to aid another in risk. Factual cause is when the defendant’s actions are factual causes of the harm when the harm would not have occurred without such conducts, while scope of liability is a limited liability to those harms that result from risks that made the defendant’s actions tortious. Scope of liability is divided into two parts; foreseeability, which excludes liability for harms that were sufficiently unforeseeable at the time of the tortious act that were not among the risks that made the defendant negligent; and superseding cause, which is an intervening act that relieves the defendant of liability.
Criminal Negligence Criminal negligence can be defined as carelessly acting without taking reasonable care and putting others like in danger. The principle of Criminal negligence applies to medical practitioner when he shows gross negligence in the treatment of patient and ultimately leading to physical injury to the patient and in some case even death of the patient. The doctors are not being held criminally responsible for the patient’s death unless there is some negligence on his part while treating the patient. The most important factor to prosecute any medical practitioner under the medical negligence is the degree of negligence. The Supreme Court in Jacob Mathew v State of Punjab has provided some grounds relating the degree of negligence
The conceptual paper: A Study of Vicarious Liability for Employer: Conflict Interest Noor Ramizah binti Abdul Talib (035809) University Sultan Zainal Abidin, Gong Badak Campus, Terengganu, Malaysia. E-mail: Arnafiza02@gmail.com Abstract . This means that where a worker injures a fellow employee in the course of their job, or injures somebody who is not a fellow employee (such as a visitor to the premises), the victim can claim compensation from the employer, who is vicariously liable. One reason for imposing liability on the employer is readily apparent. The employer (a firm or corporation in most cases) is much more likely to have the financial means to pay the claim than the individual employee.
A tortious liability is a civil wrong, which 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. One of the liabilities under tort law is negligence which is one of the most common liabilities casted upon medical professionals. Such a liability draws upon unliquidated damages, which are damages not previously determined and are to be decided by the court based upon the particular facts of the case. It is in this very manner, that, the victims of medical negligence are compensated and also this is where the medical fraternity is abused upon by filing for frivolous legal suits. Before moving further, it is important to understand the term ‘negligence’ with reference to tortious liability.
Torts are considered unfair acts that result in loss, causing damage or injury to anyone else in the form of “body, property, or legal rights”. The reason behind this is the violation of duty that was owed as decreed by law. Tort laws are considered civil wrong and the individual who is wronged can sue in the civil court either as compensation or some form of equitable remedy to have prevented repetitive actions. When parties are bound by contracts, contractual liability also exists. Companies and individuals are all applicable for Tort Laws.
It is possible to commit an act of indecency recklessly and it is shown in the judgment of two cases. In R v Mueller , the Court of Criminal Appeal affirmed Fitzgerald v Kennard and applied the reckless non-advertent concept to indecent assault. In this case, the appellant was charged with five counts of assault with act of indecency and was convicted of three counts. The complainant suffered from Asperger’s syndrome and schizophrenia. The accused had the responsibility of taking care of her.
The fundamental principle that legal wrongs should be remedied outweighs the complete absence of evidence to support the claims of dire consequences if liability was found. Lady Hale, also dissenting, generally supported the analysis of Lord Kerr and would also have allowed the Appellants’ appeal. She stated in her judgement, the policy reasons said to preclude a duty in a case such as this are diminished by the fact that the police already owe a common law, positive duty in public law to protect members of the public from harm caused by third parties, as well as by the existence of the ECHR claims. In her judgement she cites the two main objections to imposing such duty as Hill v Chief Constable of West Yorkshire and Brooks v Metropolitan Police Commissioner which set out that he police cannot be held liable for negligence in course of investigating or preventing crime. Whilst the principle is no longer regarded as an immunity, for policy reasons, no liability is imposed by the law.