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[d] Special Land Acquisition Officer & Anr. v. Zala Laxmansinh Adesinh,
First Appeal No. 276/2009 to 297/2009 :: Decided on 29/08/2011
[Coram : Jayant Patel & R.M Chhaya, JJ.}
"Negligence" is the breach of a duty caused by the omission to do
something which a reasonable man, guided by those considerations which
ordinarily regulate the conduct of human affairs would do, or something which
a prudent and reasonable man would not do. {GovernorGeneral in Council v.
Mt. Saliman, (1948) ILR 27 Patna 207}. Winfield defines, "negligence" as a tort,
is the breach of a legal duty to take care which results in damage, undesired by
the defendant to the plaintiff". Apex Court in case of Poonam Verma v. Ashwin
Patel, reported in AIR 1996 SC 2111 has held that the definition involves three
constituents of negligence : (1) A legal duty to exercise due care on the part of
the party complained of towards the party complaining the former's conduct
within the scope of the duty; (2) Breach of the said duty; and (3) consequential
damage. In Donoghe v. Stevenson (1932) AC 562, Lord Machmillan distinguished
the carelessness and negligence by stating that, "the law takes no cognizance of
carelessness in the abstract. It concerns itself with carelessness only where there is a
duty to take care and where failure in that duty has caused damage. In such
circumstances carelessness assumes the legal quality of negligence and entails the
consequences in law of negligence. The cardinal principle of liability is that the party
complained of should owe to the party complaining a duty to take care, and that the
party complaining should be able to prove that he has suffered damages in consequence
of a breach of that duty." Thus, in strict legal analysis, negligence would mean
more than carelessness conduct, be it omission or commission.