Tracing the Origins of Tort of Negligence

By Nakshatra Gujrati

The author is a first-year law student at National Law University Odisha and is the founder of LAWOGS.

Back in Scotland, in 1928, Ms. May Donohogue ordered a bottle of ginger wine in some restaurant and because the glass bottle was opaque, she wasn’t able to see the remains of a dead snail. After some days when she fell ill due to this incident, she sued the manufacturer of ginger beer Mr. Stevenson. This is a famous tort case that explains the tort of negligence.

While there are many distinct branches of law, the law of torts has an intriguing history which can be dated back to 1870 when the very first lecture on the law of torts was delivered by Nicholas Greene in Harvard Law School.

There are various definitions of tort and it may be defined as a civil wrong that infringes the legal rights vested in the plaintiff by law. Say, for example, your neighbor has a right to enjoy his property in possession without any unlawful interference and despite it, you enter his property, pluck the fruits and throw the remains on his premises. You commit the tort of trespass.

As mentioned earlier, a tort is a civil wrong and the remedy is compensation, unlike criminal law, it’s aim is not punishment. One more peculiar feature of tort is while bringing an action in the law court of law, you yourself are dragging the defendant (wrongdoer) to court instead of the state. But it is interesting to note that sometimes a criminal offense and tort can occur side by side and then the wrongdoer would be punished and also will be liable to pay damages accordingly. After we are clear with the term tort, let us move towards its essence that is negligence.

Negligence could be anything as platitude as you forgot to switch off the fan when you left your study room, although it isn’t actionable per se. Negligence is defined as something that a reasonable or prudent man of society would avoid doing. Actionable negligence requires a test called reasonable care what the defendant ought to exercise in any given scenario and if he fails to do that, it results in the tort of negligence.

Rylands vs Fletcher Case

It was decided by the House of Lords on 17th July 1868. Rylands employed some contractors to build a reservoir and they failed to notice the fact that there was some debris in old coal shafts and they continued to work upon it. The consequence of this negligence was suffered by the neighbor Fletcher when the reservoir burst out and water entered into his mines. This is the case is significant because it laid down the principle of strict liability.

To establish the rule of strict liability following points are observed.

• The wrongdoer made non natural use of his property. Here Reylands constructed reservoir on his lands which is non natural use of his land, something which isn’t very common.
• The defendant brought something on his land which is inherently dangerous and likely to cause mischief if it escapes. Here Reylands brought water in a quantity which was inherently dangerous.
• The thing escapes and causes some mischief, as observed here the water escaped and did cause a mischief.

As the name suggests, strict liability isn’t absolute, there are some exceptions to it namely, Act of God ( Vis major), Common benefit, Consent ( Volenti non fit injuria), and Statutory Authority.