Winfield and Jolowicz on Tort

Product Information

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. 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. BREACH OF DUTY TO TAKE CARE: Yet another essential condition for the liability in negligence is that the plaintiff must prove that the defendant committed a breach of duty to take care or he failed to perform that duty. DUTY TO TAKE CARE: One of the essential conditions of liability for negligence is that the defendant owed a legal duty towards the plaintiff. The following case laws will throw some light upon this essential element.

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. Winfield & Jolowicz on Tort has been the leading work on the subject since the first edition was published over 80 years ago, and with the publication of this twentieth edition it continues to be a clear, authoritative and comprehensive guide to this area of law. It is widely adopted for use by students, an invaluable resource for practitioners, and regarded in other legal systems as providing a definitive account of the English law of tort. 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.In Stanley v. Powell, (1891) 1 QB 86; the plaintiff and the defendant, who were members of a shooting party, went for pheasant shooting. The defendant fired at a pheasant, but the shot from his gun glanced off an oak tree and injured the plaintiff. It was held that the accident was an inevitable accident and the defendant was not liable. Negligence is the omission to do something, which a reasonable man, guided upon those considerations, which ordinarily regulate the conduct of human affairs, would do, or do something, which a prudent and reasonable man would not do”. This edition has been updated to incorporate the developments that have taken place in the law of tort. Although centred in English law, significant case law developments in other major Commonwealth jurisdictions are also considered Thirdly, 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.

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: 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.For this edition, the entire text has been thoroughly updated and several chapters have been extensively rewritten. 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 Lochgelly Iron & Coal Co. v. Mc Mullan, 1934 AC 1; LORD WRIGHT said, negligence means more than headless or careless conduct, whether in commission or omission; it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing. 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. The tort of negligence has been explained in a very lucid manner taking into consideration its meaning, essentials, denences and relevant case laws...