INTRODUCTION TO NEGLIGENCE AND PROFESSIONAL NEGLIGENCE

By: Jhanvi Jain

Negligence is a general term means act of being careless. It was derived from the Latin word negligent which means ‘failing to pick up’. In legal sense the term negligence signifies the failure to exercise a certain amount of care needed to be exercised which needed to be exercised in a particular condition. Negligence can be properly defined as a breach of legal duty to take care which results in damage, which is not desired by the defendant to the plaintiff. The essentials of negligence are as follows:-

  1.   Duty to take care
  2.   Duty to whom
  3.   Duty must be towards plaintiff
  4.   Breach of duty to take care

When the legal duty is breached with, negligence takes place. Here, we are going to assess the dimensions of negligence

  1. contributory negligence – Where the plaintiff fails to exercise reasonable care for their safety.
  2. professional negligence – It can be defined as a breach of duty between the professional and his clients.

Negligence has not been explained in any precise definition. It was vaguely defined in a case the apex court named[1] Jacob Mathew v. State of Punjab, which is presented below;

Negligence can be defined as a breach of duty which is caused by omissions to do something which a prudent man guided by considerations which are ordinarily regulated the conduct of human affairs would do, or doing something which a prudent or reasonable man would not do.

This definition involves 3 elements of negligence: –

  1. A legal duty to exercise due care on the part of the party complained of toward party complaining the former’s conduct within the scope of duty.
  2. Breach of the duty mentioned
  3. consequential damage

In this article we are about to discuss about the dimensions of negligence;-

The broad dimensions of negligence can be conveyed as follows-

1 Contributory negligence

2 professional negligence.

Let us first discuss contributory negligence –

Contributory negligence is the plaintiff’s failure to exercise reasonable care for their safety. can be understood as an act by which the plaintiff to satisfy his own want of care, becomes a part of the wrongful act committed the defendant.

An accident could be called a part of contributory negligence if

‘The proximate cause of the accident is the act or omission amounting to want of ordinary care or in defiance of duty or obligation on the part of the complaining party (the plaintiff) has conjoined with other party’s negligence.’ [2]

Contributory negligence as an independent ground took shape in the 18th century and early 19th century. [3]The term contributory negligence originated in the case Butterfield v. Forrester in 1809. In Butterfield v. Forrester there was a man who was riding a horse which was collided with a pole standing on a public road, which resulted in the man being thrown off the horse and injured. The man was denied claims for damages as the judge found out that the horse was ridden at an extremely high speed without taken ordinary care. The judge declared that the damages were denied as he was found to ride a horse at an extreme speed, while not taking ordinary care. According to the judge before whom the case was performed – An injured party will not be able to recover loss suffered by him if he could have avoided the accident or injury by exercising ‘ordinary caution’.

Contributory negligence is applicable totally to the conduct of the plaintiff. In contributory negligence the defendant has to prove that the plaintiff had failed to take reasonable care for his safety and was contributing to a the harm ultimately suffered by the plaintiff. This a defence where the defendant can prove that the plaintiff failed to take reasonable care of his safety and was a contributor to the ultimate harm suffered by the plaintiff. In Madhya Pradesh High Court in Vidya Devi v. M.P. Road Transport Corporation In that case, a motor cyclist who was driving negligently, not taking the care prescribed crashed against a bus and died in an accident. The bus driver was not found to be negligent as he was taking precautions to avoid collisions. The proportion of the blame was 2:1. Therefore, the plaintiff will only be entitled to 1/3rd of the damages, he would have been entitled to if he wasn’t at fault.

Now let us discuss about the other dimension called the professional negligence

In such kind of negligence there is always a professional involved for example lawyers, doctors, architects etc. The person held liable here should be performing some special skills. The people who are performing such tasks are said to possess some special skills undertaken to perform some special tasks.

In Achutrao Haribhau Khodwa and Ors. v. State of Maharashtra and Ors.,1 a mop was left inside a female patient’s abdomen during an operation. A disease called Peritonitis was developed leading to a second surgery being performed, but she could not survive it. Liability for negligence fell upon the surgeon because of the absence of reasonable explanations for the mop being left inside the woman’s abdomen. Doctrine of Res Ipsa Loquitur was applicable here. In this the supreme court established that negligence cannot be attached to a doctor if he is performing his duties in his best abilities, with proper care and caution.

[4]In an apex court judgement of Jacob Mathew V State of Punjab

A reasonable man entering into a profession is required to have a particular level of learning to be called a professional in the field selected. It impliedly assures the person dealing with him that the skill possessed by him shall be exercised and exercised with reasonable care and caution The client is not made aware of the result. For example, A lawyer does not tell his clients that the client will definitely win the case in each and every circumstances. A doctor does not assure a patient of full recovery in all cases and a surgeon cannot and does not guarantee that the result of the surgery would without any doubt be beneficial, much less to the extent of 100% for the person operated on. The only assurance which can be given in this case is that the person entrusted with the task has the requisite skills needed in the profession and while the task of practising the skills acquired is given to him he will do it with reasonable competence. In Jacob Mathew v State of Punjab AIR 2005 SC 3180,one late Jiwan Lal Sharma was admitted in the CMC Hospital, Ludhiana on 15-2-1995. On 22-2-1995, he felt difficulty in breathing. There being no oxygen cylinder available for 5 to 7 minutes, he died. The doctors also turned up after 20 to 25 minutes, when contacted by the nurse. The Court, however, held it a case of non-availability of the oxygen cylinder and not of any negligence on the part of the accused doctors. The Court, thus, held that the hospital might be held liable in civil law. We can see that in this case the doctor was late which delayed treatment and an oxygen cylinder which is vital in hospitals was not available. Here, even though the required skills were possessed by the professional, the problem was him not performing it with the possessed skills.

A professional can only be held liable for negligence in only two cases: –

1. He did not possess the required skills needed to be possessed by a professional.

2. He did not exercise the possessed skills, with reasonable competence.

The criteria for being applied for judging, whether the person was negligent or not was to be bases that a person was exercising ordinary competence as it was not necessary for every person to exercise the highest level of expertise in the branch in which he practices. To establish liability on the basis of deviation from normal practice , [5]there are 3 criterias to be fulfilled : –

  1. There is a usual and normal practice
  2. The defendant has not adopted it
  3. That the course is adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care

The above tests have been stated as a determinative in of negligence in profession by Charlesworth and Percy in their work on negligence.

In Poonam Verma v. Ashwin Patel and Ors., a doctor registered as medical practitioner and entitled to practice in Homeopathy only, prescribed an allopathic medicine to the patient. As a result the patient died. The doctor was held to be negligent and liable to compensate the wife of the deceased for the death of her husband. The doctor who was entitled to practice in homoeopathy only, was held under a statutory duty not to enter the field of any other system of medicine. Since he trespassed into a prohibited field and prescribed the allopathic medicine to the patient causing the death, his conduct held amounted to negligence per se actionable in civil law[6]

CONCLUSION

Negligence is a tort evolving from the Britain law and it was adopted by the Indian law as an important tort. Negligence is of two types- civil and criminal here, we discussed about the civil part of this tort. Civil negligence is when a person ignores to take ordinary care which a reasonable person would have taken. To prove that the act performed was negligent all the essentials mentioned above has to be proved. Contributory Negligence is a defence which is available to the defendants preventing plaintiff from getting compensation from a suit filed by him. It is when both the plaintiff and the defendant are at fault. In this case the burden of proof always lies on the defendant. In contributory negligence the defendant has to prove that the plaintiff had failed to take reasonable care for his safety and was contributing to the harm ultimately suffered by the plaintiff.


[1] Jacob Mathew v State of Punjab AIR 2005 SC 3180.

[2]Municipal Corporation of Great Bombay v Lakshman Iyer AIR 2003 SC 4182

[3] EMANUEL G.D VAN DONGEN & HENRIETTE P. VERDAM, THE DEVELOPMENT OF THE CONCEPT OF CONTRIBUTORY NEGLIGENCE IN ENGLISH COMMON LAW pg. 64.

[4] Jacob Mathew v State of Punjab AIR 2005 SC 3180.

[5] R.K. BHANGIA, THE LAW OF TORTS, CHAPTER 11, pg. 324.

[6]R.K. BHANGIA, THE LAW OF TORTS, CHAPTER 11, pg. 326

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