By Shruti Lamba-
Principles of justice, equity and good conscience are the foundation principles of not only a judicial system but rather of a society too. In a society one is expected to have good conscience and adopt a sense of responsibility and duty to care towards each other’s life and property as well. A normal prudent man is required to reasonably conduct in a manner that takes care of others life as well as property.
But what if someone deliberately and intentionally breaches the duty of care. To held accountable this deliberate and intentional acts, society and later law systems made these punishable offences. These offences were included in the Law of Negligence and this law and these basic founding principles were well inculcated in the common law principle.
And then adopted by English Law Systems in 1825 and further adopted by Indian Law Systems. The Law of Negligence has been adopted and evolved over the period of time and modified by the courts.
In simple words, negligence means an act of being careless and failure to use reasonable care and act in a prudent manner. Negligence has been classified into various degrees so as to award the offence punishment according to the degree and severity of their act.
The Negligence is classified into:
- Ordinary Negligence
- Gross Negligence
- Willful negligence or Willful Misconduct
WHAT IS NEGLIGENCE?
The term ‘negligence’ is derived from ‘negligentia’ which means ‘failing to pick up’. Negligence can be defined as the failure to behave with reasonable care which a normal prudent person will exercise under same situation. It consists of behavior and actions as well as omissions when there is duty to act.
Illustration: while driving a prudent person is expected to drive carefully and in full senses. A person who drinks and drive and injuring another person is said to have acted negligently.
According to Oxford dictionary, “negligence is defined as not being careful enough and lack of care.”
According to Winfield and Jolowicz, “Negligence is the breach of a legal duty of care by the plaintiff which results in undesired damage to the plaintiff.”
As per Merriam and Webster dictionary, “the quality or state of being negligent” and “failure to exercise the care that a reasonably prudent person would exercise in like circumstances.”
In leading case of Blyth v. Birmingham Water Works Co, (1856) 11 Ex Ch 781, negligence was defined as an act of doing or omitting to do something which a normal prudent man is expected to do under the given circumstances.
So, negligence can be summed up as being in a state of carelessness and breaching the standard of behavior that is established by the society and law over the period of time and a prudent man is expected to conduct.
The idea of duty to care was established in English Law under Law of Torts by the leading judgment of Donoghue v Stevenson [1932] UKHL 100, where by it was held that a person owes another person a duty of care and the reckless manufacture was held liable to cause personal injury by serving a dangerously defective product.
ESSENTIALS OF NEGLIGENCE
To establish a case of negligence following elements should be established:
- Existence of a legal duty that the defendant owed to the plaintiff
- Defendant’s breach of that duty
- Plaintiff’s sufferance of an injury
- Proof that defendant’s breach caused injury through proximate cause.
WHAT IS WILLFUL NEGLIGENCE
As the name itself suggests willful negligence is an act of being careless but with the knowledge of being in this state of carelessness and being acknowledges of the consequential harm of being in the state of negligence or carelessness. It is of greater degree than just being negligent or causing accident.
It is being in a state of negligence and at the same time having knowledge of and appreciating the wrongful conduct on his part in the current situation or his action of omitting to do whatever he is legally bound to do. Willful negligence involves an act done intentionally or voluntarily and is reckless causing proximate harm to another person.
Illustration: a person seeing another person lying before him in critical condition and knowing that he needs immediate medical assistance but deliberately refrains himself from calling an ambulance or doctor would be said to be willfully negligent.
ELEMENTS OF WILLFUL NEGLIGENCE
The elements of willful negligence are same as the elements of negligence but the additional constituents are the intentional or deliberate or reckless act. So, elements can be stated as following:
- A serious or high degree of negligence and unmistakable abuse of duty of legal right towards others.
- Behavior of not taking reasonable care
- An absence of acting diligently
- Behavior of taking no care.
WHAT IS WILLFUL MISCONDUCT?
Willful misconduct is a concept of English Law and is on same line as that of concept of willful negligence under Indian Law. Practically in current times there is no distinction between willful misconduct and willful negligence is considered under Indian Law.
Same as willful negligence Willful misconduct can be understood as an act of intentionally doing something or abstain from doing something in a reckless manner and appreciating and knowing the fact that the concerned act will proximately cause harm or injury to another person. It is somewhat a breach of what customs and law expect a normal prudent person is to do or not to do under a given situation.
As defined by Cambridge dictionary willful misconduct is defined as, “intentional bad behavior by a person or group in a position of authority.”
In leading case of American Airlines, Inc. v. Ulen, 186 F.2d 529 (D.C. Cir. 1949) Court for appeals observed that willful misconduct can be defined as intentional doing of an act and having knowledge that such an act will likely cause harm to another, or an intentional act done disregarding or ignoring the probable consequences. For a shorter definition Court quoted that: willful misconduct is “”conscious omissions to discharge a positive duty necessary to the safety of others”.
And the same definition was defined by the court in the case of Pekelis v. Transcontinental and Western Air, Inc., 187 F.2d 122 (2d Cir. 1951), cert. denied, 341 U.S. 951 (1951).
So, in simple words willful misconduct can be understood as disregard of one’s duty intentionally and knowingly causing proximate danger to another’s safety. The main constituent to willful misconduct is proving the intention and will of the wrong doer. In leading case of De Beers UK Ltd v Atos Origin IT Services Ltd, [2010] EWHC 3276 (TCC) it was held that
“willful misconduct was conduct by a person who knows that he is committing and intends to commit a breach of duty or is reckless in the sense of not caring whether or not he commits a breach of duty.”
ELEMENTS OF WILLFUL MISCONDUCT
- WILL OR INTENTION INVOLVED
The word “willful” is the essence of the offence of willful misconduct and it is important to understand the same. In the leading case of Rakapalli Raja Rama Gopala Rao vs Naragani Govinda Sehararao & Anr on 12 September, 1989, AIR 2185, 1989 SCR Supl. (1) 115 the word ‘willful’ was inferred to indicate intentional, deliberate, calculated, conscious. So, to prove an offence of willful misconduct it is necessary to prove the will in its above dimensions and it should be established that the doer had full knowledge of the legal consequences flowing from his misconduct.
- RECKLESS OR GROSS CARELESS ACT
The act is said to be misconduct if it constitutes the element of recklessness or gross carelessness. Recklessness is commonly defined as an attitude where one acts knowingly but ignoring the bad and dangerous results occurring from it.
In leading case of Shawinigan Ltd. v. Vokins & Co. Ltd. – (1961) 3 All E.R. 396, Megaw, J. described recklessly:
“Recklessness is gross carelessness -the doing of something which in fact involves a risk, whether the doer realizes it or not; and the risk being such having regard to all the circumstances, that the taking of that risk would be described as reckless.”
So, in other words reckless act can be said to be an act where one does not even think about whether it is right or wrong thing to do, which a normal prudent person should have thought about.
Willful misconduct is often seen as an act opposite to accident or ordinary negligence and involves an intentional act which the doer knows to be reckless and still does not care about the ill consequences. The same principle was stated in the leading case of Forder v Great Western Railway Co [1905] 2 KB 532, Lord Alverstone CJ and it was stated that:
” Willful misconduct…means misconduct to which the will is party as contradistinguished from accident, and is far beyond any negligence, even gross or culpable negligence, and involves that a person willfully misconducts himself, who knows and appreciates that it is wrong conduct in his part in the existing circumstances to do, or to fail to omit to do (as the case may be), a particular thing, and yet intentionally does or fails or omits to do it, or persists in the act, failure or omission, regardless of the consequences”.
In leading case of Naurang Lal v. B.B. and G.I. Ry. Co. 16 P.L.T. 817: 160 Ind Cas 1086: A.I.R. 1936 Pat. 84: 2 B.R. 290, 8 R.P. 424, Wort, J. it was held that willful misconduct is a term used under Law of England and there is not much a difference between ‘misconduct’ and ‘willful misconduct’, willful merely expresses an intention and will of a person who is guilty of a misconduct and being willful for committing such an act of misconduct is a precondition attached to simple misconduct.
HOW TO ESTABLISH WILLFUL MISCONDUCT?
It is difficult to lay down rules as to what will constitute willful misconduct under a given situation. The question as to whether act was willful misconduct shall be decided by the Court based on the facts of the concerned case. It is to inferred from the given facts of the case itself.
In the leading case of Metropolitan Ry. Co. v. Jackson (1873) 3 A.C. 193: 47 L.J.C.P 303: 37 L.T. 679: 26 W.R. 175, Lord Cairns quoted that:
“It is impossible to lay down any rule except that which at the outset I referred to, namely that from any given state of facts the Judge must say whether negligence can legitimately be inferred and the jury whether it ought to be inferred.”
Thus, the question of willful misconduct and willful negligence is a matter of fact rather than being a matter of law.
IMPORTANT JUDGMENTS ON WILLFUL MISCONDUCT
Indian Law System adopted the law of negligence and willful negligence or willful misconduct from the English Law. It was not adopted as it is and was evolved by various judgments given by the Courts. Few are important judgments stated below with respect to will misconduct:
Various definitions for willful misconduct have been quoted under various cases like in case of Indian Airlines vs Kurian Abraham on 27 January, 2010, AS.No. 904 of 1998(A) following definitions were quoted by the Court:
In Words and Phrases Vol.46 Permanent Edition: willful misconduct is seen referred as:
“Failure to exercise ordinary care to prevent injury to a person who is actually known to be, or reasonably expected to be within the range of a dangerous at being done is usually ‘willful misconduct.”
In Stroud’s Judicial Dictionary of Words and Phrases Vol.3 at page 2916 ‘willful misconduct’ is referred to as:
“Wrong conduct, willful in the sense of being intended, but induced by mere honest forgetfulness or genuine mistake, does not amount to ‘willful misconduct’
In the same case it was stated by the court that in order to establish willful misconduct a plaintiff has to prove before the court that the accused while conducting such an act was willingly doing it and had knowledge, he did it recklessly i.e., he did not care about whether the act will incur good or bad consequences and the same will endanger safety of someone else.
The facts of the case were on payment of charges by the plaintiff the defendant was to carry the goods of plaintiff safely and deliver it to London. The plaintiff did his part but the defendant lose the consignment.
The court held that the question as to intention of defendant to lose the consignment was irrelevant, the mere fact it was lost was in itself misconduct and on failure of defendant to prove contrary the misconduct on part of defendant must be equivalent to willful misconduct. So, the defendant shall not be awarded any protection available under Carriage Act as on establishment of willful misconduct there will be no bar to damages that would be paid to plaintiff, only Court shall decide the reasonable bar.
In case of Air India Ltd vs India Everbright Shipping & … on 20 April, 2001, National Consumer Disputes Redressal, the above same principle of no protection under Carriage Act in case of willful misconduct. It was held as follows:
“There is no limitation of liability if the damage is caused by the willful misconduct of the carrier or by such default on his part as in accordance with the law of the court seized of the case, is equivalent to willful misconduct.
” The carrier shall not be entitled to avail himself of the provisions of this Schedule which exclude or limit his liability, if the damage is caused by his willful misconduct or by such default on his part as is in the opinion of the court equivalent to willful misconduct.”
In leading case of B.N. Ry. Co. Ltd. vs Dhanjishah Pestonji And Anr. on 7 June, 1929, AIR 1930 Cal 298, where the plaintiff consigned the defendant with consignment of cotton piece goods which were damaged due to getting wet. The plaintiff claimed that the roof of the wagon transmitting the consignment had big holes and due to which rain water entered the wagon and destroyed the consignment. While deciding the case the Apex court stated as follows:
The court cited the leading case of Johnson, J., in the case of Graham v. Belfast & Nothern Counties Ry. (1901) 2 I.R. 13:
“Willful misconduct in such a special condition means misconduct to which the will is party as contradistinguished from accident, and is far beyond any negligence, even gross or culpable negligence, and involves that a person willfully misconducts himself who knows and appreciates that it is wrong conduct on his part in the existing circumstances to do, or to fail, or to omit to do (as the case may be), a particular thing, and yet intentionally does, or fails or omits to do it, or persists in the act, failure or omission, regardless of consequences.”
The court finally decided that on lack of plaintiff to prove and establish misconduct on behalf of defendant it was held that plaintiff cannot claim the damages.
Thus, from above judgment it can be stated that for claiming the damages against an offence of willful misconduct, the plaintiff is bound to prove before the court that the misconduct was willful as well as the ill consequences of the act were disregarded by the wrong doer.
But in certain cases, it is held by the court that the plaintiff is not bound to prove willful misconduct on part of defendant under the given facts of the case. The same was held in leading case of Air India vs S.V. International on 18 October, 1985, ILR 1985 KAR 3983, 1986 (1) KarLJ 34, which was case of lost consignment and plaintiff filed the recovery of damages based on the valuation of goods lost and the defendant contending that the plaintiff did not disclose the price of goods at time of consignment.
It was held that the plaintiff was not bound to prove the willful misconduct, mere non deliver and lose of goods on part of defendant infers willful misconduct on his part.
CONCLUSION
From the above judicial precedents and definitions quoted in various references willful misconduct can be well understood as an act of a person who with a malafide intention knowingly and willingly acts in a certain way which causes proximate harm to another’s life or property.
And the onus to proof this willfulness of the wrong doer is on plaintiff, if he fails to prove this then damages cannot be claimed. And also, if willful misconduct is proved then the wrong does will not be able to claim any kind of protection limiting his liability towards the plaintiff.
But in spite of getting involved in these offences one must on first hand realize his or her responsibility of care towards others and act accordingly.