We know about various types of “Torts”, which is an injury or wrong independent of implied contract, as by assault, libel, malicious prosecution, negligence, slender, trespass or seduction.

“Tort” is an French word in English it means “ Wrong”, it is originated from Latin word” Tortus” , which means twist and implied to the acts which are twisted or tortituos. In Sanskrit it is called” Jimha”.

Many authors has defined “Tort” as


Salmond : 

A tort is a civil wrong for which the remedy is a common law action for unliquidated damages, and which is not exclusively the breach of a contract or the breach of trust or other merely equitable obligation.

Clerk and Lindsell :

A tort may be described as wrong independent of contract, for which the appropriate remedy is a common law of action.

Sir Fredrick Pollock :

the law of torts in civil wrongs is a collective name for the rules governing many species of liability which, although their subject-matter is wide and varied , have certain broad features in common , are enforced by the same kind of legal and are subject to similar exceptions.

Winfield and Jolowicz :

"Tortuous liability arises from the breach of duty primarily fixed by law; this duty is towards persona generally and its breach is repressible by an action for unliquidated damages”.

No one has defined the tort perfect ally and its definition and it is not justifiable to accept one particular definition.

For a “Tort” following ingredients are necessary;

  • A wrongful act or omission on the part of a person;
  • The wrongful act or omission must results in legal damage to another ; and
  • The wrongful act is of such nature as to give rise to a legal remedy in the form of an action for damages.

So we understand, what is tort, now negligence of duty is one of the types of torts.

Negligence : 


As defined by Swayne J, "Negligence is a failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation.”

Winefied :

“Negligence as a tort is the breach of a legal duty to the care which results in damage, undesired by the defendants, to the plaintiff.”

In the case of “Negligence” the defendant has no intention to cause and injury to the plaintiff. But the injury rises due to carelessness or unable to perform duty by the defendants.

There are two theories related to “Negligence”

  1. Subjective Theory: - As per this theory “Negligence” denotes “State of Mind”.
  2. Objective Theory: - As per this theory” Negligence” is a type of conduct and not a particular state of mind.

Essential Ingredients of Negligence :

  1. It was the legal duty of the defendants to take reasonable care towards the plaintiff to avoided the damage complained of,
  2. The defendant committed a breach of that duty; and
  3. Due to breach of duty plaintiff suffered damage.

As decided in the case of Heaven v. Pender(1883)11QBD 509, it was the first time court tried to define term “ Negligence” as “ One man is near to another , or near to the property of another , a duty lies upon him not to do that which may cause a personal injury to that other, or may injure his property.”

Lord Atkins, in a case of Donoghue v. Stevenson laid down the rule of determining the duty as “the liability for negligence is no doubt based upon a general public sentiment of moral wrong doing for which the offender must pay. But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give right to every person injured by them to demand relief. In this way rules of law arise which limits the range of complainants and extend of their remedy. The rule that you love by your neighbours becomes, in law, you must not injure your neighbours. You must avoid your acts or deeds, which you know that would injury your neighbours.”

 

Note: the burden of proof is on the plaintiff in case of negligence to prove that the action of the defendant due to which he has sustained injuries. He must prove the act or omission of the defendant so that the defendant could be held liable for damages.

As decided in case of Kumaran v. Vallabh das Vasanji-it was held that the initial burden of making out a prima facie case of negligence against the defendant’s lies heavily on the plaintiff and once this onus is discharged, it will be for the defendant to prove contributory negligence or that the incident was the result of inevitable accident.  

Defence for Negligence :


Contributory Negligence :

in general law an individual has duty to act as a reasonable person. When an individual does not act reasonably and incurs injury by the act of defendants, then the defendant will save himself by pleading that the plaintiff is also responsible for the injury.

Suppose Mr. X is crossing a road, without checking the signal and got an accident with Mr. Y. In this case Mr. Y may save himself by pleading that the injury incurs to Mr. X was due his negligence.

The defendant is able to prove the contributory negligence in claim, the plaintiff may totally barred from recovering the damages or his/her damages will be reduced to reflect his/her role in the resulting injury.

It is also called “Comparative Negligence” in which the quantum of act of both parties is determined by the court to reach on an amicable relief.

VIS Major or Act of God : 

Any natural phenomenon like flood, earth quick, volcano, tornado, hurricane , which is so straight , violent, direct, sudden and irresistible act which could not by any amount of human care and skill could have been resisted.

Some definitions are giving below;

 Violent and catastrophic event caused by forces of nature, which could not have been prevented or avoided by foresight or prudence. An act of God that makes performance of a contractual duty impossible may excuse performance of that duty. —Dictionary of Business Terms

Natural occurrence beyond human control or influence. Such acts of nature include hurricanes, earthquakes, and floods. —Dictionary of Insurance Terms

An unpreventable destructive occurrence of the natural world. Example: A contract has a provision that allows the buyer to default if the property is damaged by an act of God. Examples of an act of God are: earthquake, flood, hurricane, lightning, and tornado. —Dictionary of Real Estate Terms

So in these cases , when  any act of nature on which the defendant has not control or any act , which is out of control of the defendant and held due to act of nature will not be considered under negligence.

Inevitable Accident :

Suppose Mr. A was lying drunk on the road and Mr. B was driving a car and moving and turning a bend in the side of Mr. A, and at once a news paper blown by the wind and landed on the wind sheet of the car. In normal circumstances Mr. B should see Mr. A, but in this case he cannot see due to newspaper on the wind sheet. In this case Mr. A could not succeed to sue Mr. B for injury or damages.

 

Negligence in Medical Profession :

Every person has got duty to behave in a responsible manner and perform his work as a prudent person with reasonable care. The medical profession should be expected to show the case and skill to act not as layman but as a member of their class.  These people owe some duty towards their patients such as;

  1. First of all he has got a duty of care in deciding whether he can handle case of patient;
  2. A duty of care in deciding, what type of treatment he is going to give to the patient;
  3. A duty of care in the determination of treatment.

If any of duties has been breached by the doctors, the patient has right to sue against the doctor for the act of negligence.

The doctor must carry out his task with reasonable degree of skill and knowledge and must also exercise a reasonable degree of care.

Gian Chand v. Vinod Kumar Sharma , AIR 2008 HP 97; the victim child had suffred minor burns and though she was admitted to surgical ward, she was then shifted to children ward. Due to burn injuries, she could not be clothed. Therefore she should not be exposed to vagaries of whether. She should have been kept in the warmest position, so she could be saved from the effect of whether. The doctor of the hospital forcefully shifted the little girl from the children ward to the veranda in open. Due to this she was died to cold. The court has decided the case in favour of her parents as a case of negligence on the part of the doctor.

Dr. Lakhman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole, AIR 1969 CS 128;In this case the son of plaintiff met with an accident and admitted to hospital for treatment, his left leg got fractured. To reduce the fracture the doctor did not give anaesthesia and resorted for a single dose morphine injection. The doctor used excessive force in the treatment of the patient; his three attendants pulled the leg of patient to adjust the fractured bone of the leg. The patient suffered shock and died, the Supreme Court held that the doctor guilty of negligence.

Supreme Court of India explained the nature of duty of care in the medical profession as follows; - in case of Achutrao Haribhau Khodwa v. State of Maharashtra, AIR 1996 SC 2377

“The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be admissible for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to course of action to be taken by a doctor acts in a manner which is acceptable to medical profession and the courts finds that he/she has attended on the patient with due care, skill and diligence and if the patient still does not survive, or suffers a permanent ailment, it would be difficult to hold the doctor guilty of negligence.”

In the above referred case a woman was operated for sterilisation in a Government Hospital and during the operation, a towel was left inside, which caused peritonitis to the woman and due to which she died.

The Supreme Court held that the doctors of the Government Hospital were vicariously liable for their act of negligence.

Also read related article: How to Pay Zero Tax for Income up to Rs 10 Lakhs by CA Chirag Chauhan

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CS Deepak Pratap Singh

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Practicing Company Secretary, Deepak P Singh & Associates ( PCS )



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    I hope by reading this article you got enlighten on ,Negligence and Medical ProfessionWhat is Negligence and Medical Profession in the context of contract ?, Gian Chand v. Vinod Kumar Sharma , AIR 2008 HP 97, Dr. Lakhman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole, AIR 1969 CS 128, Achutrao Haribhau Khodwa v. State of Maharashtra, AIR 1996 SC 2377, Negligence and Medical Profession, further to mention before taken any financial decision based on this content it is prefered to take an expert opinion as matter can be subjective.