Negligence is the act of carelessness. There is no statute which talks about Negligence in India. The only text which talks about is the “Law of Torts” by Ratanlal and Dhirajlal.
It defines “Negligence” as 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 doing something which a prudent and reasonable man would not do.
Negligence involves three ingredients:
(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
(3) consequential damage
In India, the common types of Negligence are:
- Professional Negligence (for example, Medical Negligence)
- Contributory Negligence
- Composite Negligence
A. PROFESSIONAL NEGLIGENCE
The term “Professional Negligence” is defined in tort law as “Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch. This implicitly assures the person dealing with him that the skill which he claims to possess will be exercised with a reasonable degree of care and caution. He does not guarantee the outcome to his client.”
From the definition, we can make out that a professional is negligent when-
- When a professional does not demonstrate the required skills that he should have.
- When he has not exercised reasonable care or caution.
The best example of professional negligence is “Medical Negligence”. It is assumed that the patient has complete faith and trust in the doctor and treats him equal to God. So, it becomes the duty of the doctor to perform his duties with due care as a breach of those duties can cause action against him for negligence, and the patient or its representatives can claim compensation.
The two cases of medical negligence are:
- Bolam Case
In this case, John Hector Bolam suffered from depression and was treated at Friern Hospital in 1954 by E.C.T. (electro-convulsive therapy). Although the nurses were present, he was not given any medicine to relax. Nor was he warned of the dangers associated with the treatment when he also agreed to the same. He also sued the hospital for injuries. But the doctors and nurses were declared not negligent because two practices were relaxation drug therapy and non-drug therapy treatment. As for the warning again, there were two common practices- giving warnings to patients and only giving a warning when patients inquired about the danger.
- Jacob Mathew Case
In this case, The patient suffering from breathing difficulty was unattended for 20-25 minutes and when the doctors came they put an empty gas cylinder to his mouth. By the time, second gas cylinder was brought the patient had already died. The Supreme Court of India adopted Bolam’s case rule in this matter i.e. “A doctor is not guilty of negligence if he has acted under a practice accepted as proper by a responsible body of medical men skilled in that particular art. Putting it another way round, a doctor is not negligent if he is acting under such a practice, merely because there is a body of opinion that takes a contrary view.”
The three essential things need to be there to prove medical negligence:
- That the doctor owed a duty of care to the patient.
- That there is a breach in the performance of doctor of “duty of care”
- There was an injury or harm caused due to breach of duty and resulted in significant damages.
Various liabilities incurred from Medical Negligence are as follows:
- Consumer Protection Act 1986
Section 14(1)(d) provides to pay such an amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party.
In the case of Indian Medical Association vs. V.P. Santha, Hon’ble Supreme Court noted that medical professionals are included under the Consumer Protection Act, 1986 and that the medical services provided by them must be regarded as services under section 2 (1) (o) of the Consumer Protection Act, 1986. Similarly, under the new Consumer Protection Act, 2019, medical services will fall under the category of employment as contemplated in section 2 (42) of the new Act. Any issue of medical negligence on the part of the service provider will be deemed to be a failure under section 42 (11) of the new Consumer Protection Act, 2019.
- Civil Liability
The case of Jacob Mathew is covered under civil wrong or tort. In this case, the Supreme Court held that the case is covered under civil law and ruled that he would not continue to be charged with a criminal offence as the death occurred due to a lack of oxygen cylinder.
- Indian Medical Council Act 1956
Most of the medical negligence cases are dealt with by the Indian Medical Council by expert doctors. The punishment given by the experts ranges from a warning to disqualifying him from practising further.
- Criminal Liability
For bringing negligences into the ambit of criminal law, the degree of negligences should be higher when compared with civil negligences.
- According to section 304A of the Indian penal code, Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or fine, or both.
- Section 80 of the IPC deals with an Accident in doing a lawful act.—Nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution.
Illustration A is working with a hatchet when the head flies off and kills a bystander. If A’s actions were not motivated by a lack of caution, they would be excused and not considered an offence.
- Section 88 of the IPC deals with Act not intended to cause death, done by consent in good faith for person’s benefit.—Nothing which is not intended to cause death is an offence because of any harm which it may cause, or be intended by the doer to cause or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm.