Chanakya National Law University, Patna

A PROJECT ON THE DEVELOPMENT OF PRINCIPLE OF RES IPSA LOQUITUR IN INDIA

Submitted to:

MR. SHAIWAL SATYARTHI

Faculty of Law of Torts

Submitted by:
Sukesh Ranjan

1st Semester

Roll NO: 475

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 ACKNOWLEDGEMENT

It gives me incredible pleasure to present a research work on a project

on the development of principle of res ipsa loquitur in India.

I would like to enlighten my readers regarding this topic and I hope I

have tried my best to pave the way for bringing more luminosity to
this topic.

I am grateful to my faculty “Mr. Shaiwal Satyarthi” who has given me

the idea and encouraged me to venture this project. I would like to
thank librarian of CNLU for his interest in providing me a good back
up material.
And finally yet importantly I would like to thank my parents for the
financial support.

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 CONTENTS
Chapters Page no

MEANING 4

BURDEN OF PROOF 4-6

LEADING CASE OR ORIGIN 6

THE ELEMENTS 6-8

WHERE CAN THE DOCTRINE BE USED? 8

CONTRAST TO PRIMA FACIE 9

SHIFTING THE ONUS OF PROOF: IS THE MAXIM TOO LIBERAL? 9-10

THE DIFFERENCE BETWEEN DIRECT AND CIRCUMSTANTIAL

EVIDENCE 10-12

THE DEFENDANT: IS HE A SCAPEGOAT? 12-13

OTHER USES OF RES IPSA LOQUITOR 13-14

HOW GOOD IS IT A DEFENSE: A CRITIQUE 14

TYPICAL IN MEDICAL MALPRACTICE 15

MEDICAL NEGLIGENCE IN INDIA 15-19

SOME IMPORTANT INDIAN CASES 20-21

REBUTTING OF THE PRESUMPTION OF NEGLIGENCE 22-23

CONCLUSION 24

BIBLIOGRAPHY 25

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MEANING:

The term comes from Latin and is literally translated "the thing itself speaks", but the sense is
well conveyed in the more common translation, "the thing speaks for itself." 1 The Latin
sentence is found in Cicero's speech Pro Milone.2

In the common law of negligence, the doctrine of res ipsa loquitur (Latin for "the thing
speaks for itself") states that the elements of duty of care and breach can be sometimes
inferred from the very nature of the accident, even without direct evidence of how any
defendant behaved. Although modern formulations differ by jurisdiction, the common law
originally stated that the accident must satisfy the following conditions:

1. a "duty" exists for a person to act "reasonably"; and

2. a "breach" of this duty occurs because a person acted outside this duty, or
"unreasonably"; and
3. there was "causation in fact"...the result would not have occurred "but for" the
"breach" of this duty; and
4. there were actual damages suffered by the plaintiff who did nothing wrong (i.e., no
contributory negligence).

Upon a proof of res ipsa loquitur, the plaintiff need only establish the remaining two
elements of negligence—namely, that the plaintiff suffered damages, of which the accident
was the legal cause.

BURDEN OF PROOF:

As a general rule it is for the plaintiff to prove that the defendant was negligent 3. The initial
burden of making out at least prima facie case of negligence as against the defendant lies

1
Translating ‘res ipsa loquitur’
2
Cic. Pro Milone 53
3
See Narayan Puno vs. Kishore Tanu, A.I.R. 1979 Goa 17

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heavily on the plaintiff, but once this onus is discharged, it will be for the defendant to prove
that the incident was the result of inevitable accident or contributory negligence on the part of
the plaintiff4. If the plaintiff is not able to prove negligence on the part of the defendant, the
defendant cannot be made liable. As observed in Morgan vs. Sim5:

“the party seeking to recover compensation for damage must make out that the party against
whom he complains was in the wrong. The burden of proof is clearly upon him, and he must
show that the loss is to be attributed to the negligence of the opposite party. If at the end he
leaves the case in even scales, and does not satisfy the court that it was occasioned by the
negligence or default of the other party, he cannot succeed.”

Direct evidence of the negligence , however is not always necessary and the same may be
inferred from the circumstances of the case6. But when the plaintiff fails to establish a prima
facie case either by direct or circumstantial evidence that the defendant was negligent the
plaintiff’s action must fail.7

Though, as a general rule, the plaintiff has to discharge the burden of proving negligence on
the part of defendant, there are, however certain cases when the plaintiff need not prove that
and the inference of negligence is drawn from the facts. There is presumption of negligence
according to the maxim ‘res ipsa loquitur’ which means ‘the thing speaks for itself’. When
the accident explains only one thing and that is that the accident could not ordinarily occur
unless the defendant had been negligent the law raises a presumption of negligence on the
part of the defendant. In such a case it is sufficient for the plaintiff to prove accident and
nothing more.8 The defendant can, however, avoid his liability by disproving negligence on
his part. For the maxim res ipsa loquitur to apply it is also necessary that the event causing
the accident must have been in the control of the defendant. Thus, when the circumstances
surrounding the thing which causes the damage are at the material time exclusively under the
control or management of the defendant or his servant and the happening is such as does not
occur in the ordinary course of things without negligence on defendant’s part the maxim
applies and the burden of proof is shifted from the plaintiff to the defendant . 9 Instead of the

4
K.C.Kumaran vs. Vallabhadas, A.I.R. 1969 Ker. 9, 11
5
(1857) 11 Moo P.C. 307, 312
6
Sadaram Kanhaiya vs. Sobharam, A.I.R. 1962 Madh. Pra. 23.
7
K.C.Kumaran vs. Vallabhadas, A.I.R. 1969 Ker. 9.
8
Pushpabai vs. Ranjit Ginning and Pressing Co., A.I.R. 1977. S.C. 1735, at 1739.
9
Municipal Corporation of Delhi vs. Subhagwanti: A.I.R. 1966, S.C. 1750, at 1752.

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plaintiff proving the negligence, the defendant is required to disprove it. The principle has
thus been explained in Halsbury’s Laws of England.10

“An exception to the general rule that the burden of proof of the alleged negligence is in the
first instance on the plaintiff occurs wherever the facts already established are such that the
proper and natural inference immediately arises from that the injury complained of was
caused by the defendant’s negligence, or where the event charged as negligence ‘tells its own
story’ of negligence on the part of the defendant, the story so told being clear and
unambiguous. To these cases the maxim res ipsa loquitur applies. Where the doctrine applies,
a presumption of fault is raised against the defendant, which, if he is to succeed in his
defence, must be overcome by contrary evidence, the burden on the defendant being to show
how the act complained of could reasonably happen without negligence on his part.”

The maxim is not a rule of law. It is a rule of evidence benefitting the plaintiff by not
requiring him to prove negligence. When the accident is more consistent with the negligence
of the defendant than with any other cause and the facts are not known to the plaintiff but are
ought to be known to the defendant the doctrine applies.

LEADING CASE OR ORIGIN:

The legal doctrine was first formulated by Baron Pollock in the English 1863 case Byrne v
Boadle.

THE ELEMENTS:

EXCLUSIVE CONTROL

In some cases a closed group of people may be held in breach of a duty of care under the rule
of res ipsa loquitur. In Ybarra v. Spangard, a patient undergoing surgery experienced back
complications as a result of the surgery, but it could not be determined exactly which member
of the surgical team had breached his or her duty, and so it was held that they had all

10
Vol. 23 (2nd ed.), p.671

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breached, because it was certain that at least one of them was the only person who was in
exclusive control of the instrumentality of harm.

Because it can be difficult to prove "exclusive control", this element has largely given way in
modern cases to a less rigid formulation: that the evidence eliminates, to a sufficient degree,
other responsible causes (including the conduct of the plaintiff and third parties). For
example, in New York State, the defendant's exclusivity of control must be such that the
likelihood of injury was, more likely than not, the result of the defendant's negligence. The
likelihood of other possibilities do not need to be eliminated altogether but they must be so
reduced that the greater probability lies with the defendant.

PLAINTIFF DID NOT CONTRIBUTE

In jurisdictions that employ this less rigid formulation of exclusive control, this element
subsumes the element that the plaintiff did not contribute to his injury.

Also it is notable that contributory negligence is, in modern case law, compared to the injury
caused by the other. For example, if the negligence of the other is 95% of the cause of the
plaintiff's injury, and the plaintiff is 5% responsible, then the plaintiff's slight fault cannot
negate the negligence of the other. This new type of split liability is commonly called
comparative negligence. As a fictitious example:

 John Doe is injured when an elevator he has entered plunges several floors and stops
abruptly.
 Jane's Corporation built, and is responsible for maintaining, the elevator.
 Doe sues Jane, and during the proceedings, Jane claims that Doe's complaint should
be dismissed because he has never proved, or for that matter even offered, a theory as
to why the elevator functioned incorrectly. Therefore, argues Jane, there is no
evidence that they were at fault.
 The court holds that Doe does not have to prove anything beyond the fall itself.
o The elevator evidently malfunctioned (it was not intended to fall nor is that a
proper function of a correctly functioning elevator)
o Jane was responsible for the elevator in every respect

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 o So Jane's Corporation is responsible for the fall.
 The thing speaks for itself: no further explanation is needed to establish the prima
facie case.

WHERE CAN THE DOCTRINE BE USED?

The maxim has been held to apply, where the trolley arm of a tram was plucked from a
standard and struck a passenger on the head ; where a crane toppled over ; where a heavy
electrical control panel toppled over ; where a heavy piece of machinery fell off in a factory ;
where a trawler was sent to be examined on the defendant’s slipway and was put on to a
cradle by the defendant’s workmen, when it suddenly fell over and was damaged ; where a
coupling on a railway train had parted ; where a surgeon left a swab in the body of his patient
after an operation.

The maxim also applied where the healthy heart of a four year old child, undergoing surgery
on her hip, stopped beating for a period of over half an hour ; where a patient developed
gangrene after receiving an injection in the arm.

The maxim, however does not apply where livestock was sent by railway and found damaged
at arrival ; where a schoolboy, during the morning break was in the corridor in the school
building and was hit in the eye by a golf ball which had entered the corridor by the doorway,
after it had been driven by another school boy in the playground ; where a cricket ball was
driven by a batsmen out of the ground and injured a pedestrian on a footpath.

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CONTRAST TO PRIMA FACIE

Res ipsa loquitur is often confused with prima facie ("at first sight"), the common law
doctrine that a party must show some minimum amount of evidence before a trial is
worthwhile.

The difference between the two is that prima facie is a term meaning there is enough
evidence for there to be a case to answer. Res ipsa loquitur means that because the facts are
so obvious, a party need explain no more. For example:

"There is a prima facie case that the defendant is liable. They controlled the pump.
The pump was left on and flooded the plaintiff's house. The plaintiff was away and
had left the house in the control of the defendant. Res ipsa loquitur."

This may be termed an "open and shut case", meaning that the trial is very brief and almost a
formality.

SHIFTING THE ONUS OF PROOF: IS THE MAXIM TOO LIBERAL?

The maxim may not be applied too liberally it must be remembered that what is said in
relation to it once cannot indiscriminately be applied to another case. It should not be applied
as a legal rule but only as an aid to an inference when it is reasonable to think that there are
no further facts to consider.

# Res Ipsa Loquitor is in essence no more than a common sense approach, not limited to
technical rules, to the assessment of the effect of evidence in certain circumstances. It means
that a plaintiff prima facie establishes negligence where:

# It is not possible for him to prove precisely what was the relevant act or omission which set
in train the events leading to the accident, but

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# On the evidence it stands, i.e., in the absence of any evidence from the defendant, it is more
likely than not that the effective cause of the accident, whatever it may have been, was some
act or omission of the defendant or of someone for whom the defendant was responsible,
which act or omission constitutes a failure to take proper care for the plaintiff's safety.

The application of res ipsa loquitor is not necessarily excluded merely because there has been
a possibility of outside interference with the thing through which the accident happened.

THE DIFFERENCE BETWEEN DIRECT AND CIRCUMSTANTIAL EVIDENCE:

Circumstantial evidence is most commonly used in proving all sorts of tort cases. The
plaintiff offers evidence of a pile of freshly cut maple logs in the defendant's courtyard to
establish that the defendant cut down his maple tree. Scratches or paint scrapings on the
defendant's fender are offered to establish that it was his car that hit the plaintiff's. Evidence
of large, unexpected deposits in the bank account of the defendant is offered to establish that
he converted plaintiff's funds. In each case, evidence of one fact is offered because it tends to
establish another. Such evidence is not an airtight one, but it will often be the best that the
plaintiff can do, and may well convince the court that it is ?more probable than not? that the
defendant was negligent.

Direct evidence is the evidence that needs no further support. It is complete in its self. A man
saw another man being murdered, a person witnessing a robber robbing a lady etc are all
direct evidence. They are capable of proving the case own their own.

FROM CIRCUMSTANTIAL EVIDENCE TO RES IPSA LOQUITUR:

If circumstantial evidence is one step away from direct testimony, the classic doctrine of Res
Ipsa Loquitor is a further step beyond the traditional use of circumstantial evidence. Dean

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Prosser offers the following whimsical response to this tautological logic: Res Ipsa Loquitor,
Sed Quid In Infernos Dicet  (The thing speaks for itself, but what the hell did it say?). Thus,
even though the plaintiff cannot offer a direct or circumstantial evidence to show exactly
what caused the barrel to fall , he should be allowed to reach the jury on the issue of
negligence by proving the circumstances of the accident itself, because they bespeak
negligence even without a more specific showing of the chain of events.

There is nothing particularly mystical about this idea. Res Ipsa Loquitor is not really a
separate principle but rather a special form of circumstantial evidence. The underlying
rationale is that sometimes facts can be inferred from other facts. In Res Ipsa Loquitor cases,
the circumstantial evidence allows the jury, based on evidence about the accident itself, to
infer that it must have resulted from some negligent act by the defendant.

Here are some examples of cases in which plaintiff might use res ipsa loquitor to establish
negligence:
#  A railway company hires a contractor to install a temporary boarding platform for trains,
and it collapses shortly after it is put to use. Even if the collapse makes it impossible to
produce evidence of the exact cause, a jury might well infer that negligent construction
caused the collapse.

#  A brick falls from a roof where a chimney is being repaired and hits the plaintiff on his
head. Here again the plaintiff may not be able to demonstrate what caused the brick to fall;
indeed. The workers may not be able to either. However it is possible to infer that the brick
probably fell due to the negligent act of the workers.

#  An elevator stops abruptly between floors, throwing the plaintiff to the floor. Again the
inference is easy to draw that had it not been due to the fault of the elevator, it would not
have stopped abruptly.In each of the cases, there is no showing of exactly how the accident
happened, but in fact that it happened at all suggests that someone was probably negligent.

THE DEFENDANT: IS HE A SCAPEGOAT?

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The Res Ipsa Loquitor doctrine may warm the hearts of plaintiff's counsel, but it places the
defendant in a very difficult position. How is he to refute the plaintiff's proof of negligence,
where plaintiff hasn't proved any specific negligent act? Certainly the most comforting way
to rebut a Res Ipsa Loquitor case is to prove the actual cause of the accident. For example,
proof that the station platform collapsed because the transit authority was tunneling
underneath it will completely undermine the Res Ipsa Loquitor inference.

Short of that, the defendant can attack each of the foundation facts necessary to support Res
Ipsa Loquiter. He may probe the attribution requirement by showing that other persons
mishandled the product, which caused the injury after it left its hands (for example, the
retailer in the exploding beverage case). He may undermine the required showing that the
type of accident does not ordinarily happen without negligence, by showing other common,
non-negligent causes of this type of accident. A chain is only as its weakest link; if the jury is
not convinced that each of the foundation facts is established, it should refuse to infer the
ultimate fact of negligence.

If the defendant's proof on either of these points is strong enough, the judge may even direct a
verdict for him, on the ground that the jury could not reasonably conclude that the proper
foundation for the res ipsa loquitor doctrine has been established.

Where the defendant does not have evidence of the exact cause of the accident, he may try to
refute the res ipsa loquitor inference by proving that he generally exercised due care. In the
case of the glass in the spinach, for example the canner might produce the evidence of the
careful quality control measures it takes to avoid objects getting into the cans. The airline in
the lost plane example might produce evidence of its careful training, maintenance, and the
inspection procedures. This does not conclusively eliminate negligence as the cause, but it
could influence the jury's thinking about the probabilities. On the other hand, this can
backfire: The more careful the defendant’s procedures, the less likely that an accident would
happen if they had in fact followed those procedures. Thus, such proof could lead the jury to
conclude that, had the procedures been followed, there would not have been an accident at
all.

The cases suggest that the plaintiff should be able to rely on res ipsa loquitor because the
defendant has better access to evidence of the cause of the accident than the plaintiff does. It
is certainly true that the doctrine creates a strong incentive for the defendant to produce

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evidence within its control, at least if it is exculpatory. However, most courts do not restrict
the doctrine to cases in which the defendant has better access to proof. Often the defendant
has no better chance of explaining the accident than the plaintiff does. In the disappearing
plane case or the glass in the spinach case, for example, the airline or the canner may have no
idea what caused the accident, or any way of finding out. Yet the likely explanation of the
accident may still be negligence. In such cases, the defendant should not be able to avoid res
ipsa loquitor simply by showing that it knows no more about the accident than the plaintiff
does.

OTHER USES OF RES IPSA LOQUITOR:

# Impacted Information
The problem of impacted information arises when one side to a transaction has information of
great relevance to the welfare of both parties but has no incentive to share the information
with any of the two. Courts on both sides of the Atlantic, have responded to such to such a
situation by applying res ipsa loquitor. In Ybarra v. Spangard , the Supreme Court of
California had to resolve a dispute between a patient who had undergone an operation and
emerged with a mysterious frozen shoulder and the medical team he was suing, all of knew
what had happened but were refusing to say anything. The court ruled that res ipsa loquitor
could apply collectively, with the result that every member of the medical team would be
found liable unless they revealed exactly what had happened. Similarly, in Henderson v.
Jenkins , the defendant lorry owners were the only people in a position to know about a
crucial piece of information without which it was impossible to say whether or not the
defendant had carried out adequate safety inspections.

# Creating Strict Liability

The other use of res ipsa loquitor is to crate strict liability out of the material of the fault
regime. In Ward v. Tesco , res ipsa loquitor was said to apply to the case of a shopper who
was injured after slipping on the yogurt that had been spilt on the floor of one of the
defendant?s shops. The evidence was that the floor was cleaned five to six times a day, and
additionally when the staff noticed any spillage. The court wanted Tesco to say exactly how
the accident had occurred, something that nobody could do. By holding the defendants liable

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for not having information that nobody has, the Ward case therefore effectively creates strict
liability.

HOW GOOD IS IT A DEFENSE: A CRITIQUE

Arguably, courts that apply res ipsa loquitor play fast and loose with the negligence element
of the claim, since they allow the jury to find for the plaintiff without proving any specific
negligent acts. In the platform case, for example, if the plaintiff merely offers evidence that
the platform fell shortly after the construction, he has not proved any particular negligent act
done by the contractor. Similarly, in the brick case, evidence that the brick fell while the
defendant's employees were working on the roof does not prove that it was a negligent act
that caused it to fall. How then, can we know that there was negligence involved at all.

Well, we don't know that negligence was involved. In res ipsa loquitor case, the jury may not
be able to reconstruct the sequence of events, but they may be able to make an educated
inference that, whatever it was, it probably involved the defendant's failure to exercise due
care in some respect. The inference may not be infallible, it may not be satisfying to the
ruthlessly syllogistic mind, but it is accepted by the general legal system to satisfy the ?more
probable than not? standard of proof in negligence cases. Courts, as practical institutions,
must face the fact that irrefutable proof is seldom available in practical affairs, that the system
is imperfect by its nature and must settle for a reasonable balance of probabilities.

The res ipsa loquitor maxim allows juries to make the same inference of negligence that most
of us would make from our common experience. The maxim is not a rule of law, it merely
describes a state of the evidence from which it is possible to draw an inference of negligence.
It is based on common sense, its purpose being to enable justice to be done when the facts
bearing on causation and the standard of care exercised are unknown to the claimant but
ought to be within the knowledge of the defendant. It will not assist where there is no
evidence to support an inference of negligence and a possible non-negligent cause of the
injury exists.

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At the end of the day, if we apply this maxim only when all reasoning points to a particular
fact, and the case is undecided only for want of a few technicalities, then the use of this
maxim is justified. If, however, this maxim is applied by courts just to speed the cases and
deliver verdicts, then the maxim will stand exploited.

TYPICAL IN MEDICAL MALPRACTICE

Res ipsa loquitur often arises in the "scalpel left behind" variety of case. For example, a
person goes to a doctor with abdominal pains after having his appendix removed. X-rays
show the patient has a metal object the size and shape of a scalpel in his abdomen. It requires
no further explanation to show the surgeon who removed the appendix was negligent, as
there is no legitimate reason for a doctor to leave a scalpel in a body at the end of an
appendectomy.

MEDICAL NEGLIGENCE IN INDIA

1. Negligence is the breach of a duty caused by omission to do something which a

reasonable man guided by those considerations 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. The definition of negligence
as given in law of Torts, Ratanlal & Dhirajlal (edited by Justice G. P. Singh), referred to here
in above, holds good. Negligence becomes actionable on account of injury resulting from the
act or omission amounting to negligence attributable to the person sued. The essential
components of negligence are three: 'duty', 'breach' and 'resulting damage'.

2. Negligence in the context of medical profession necessarily calls for a treatment with a
difference. To infer rashness or negligence on the part of a professional, in particular a

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doctor, additional considerations apply. A case of occupational negligence is different from
one of professional negligence. A simple lack of care, and error of judgment or an
accident, is not proof of negligence on the part of a medical professional. So long as a
doctor follows a practice acceptable to the medical profession of that day, he cannot be
held liable for negligence merely because a better alternative course or method of
treatment was also available or simply because a more skilled doctor would not have
chosen to follow or resort to that practice or procedure which the accused followed. When it
comes to the failure to taking precautions what has to be seen is whether those precautions
were taken which the ordinary experience of men has found to be sufficient; a failure to use
special or extraordinary precautions which might have prevented the particular happening
cannot be the standard for judging the alleged negligence. So also, the standard of care, while
assessing the practice as adopted, is judged in the light of knowledge available at the time of
the incident, and not at the date of trial. Similarity, when the charge of negligence arises out
of failure to use some particular equipment, the charge would fail if the equipment was not
generally available at that particular time (that is, the time of the incident) at which it is
suggested it should have been used.

(3) A professional may be held liable for negligence on one of the two findings: Either he
was not possessed of the requisite skill which he professed to have possessed, or, he did
not exercise, with reasonable competence in the given case, the skill which he did
possess. The standard to be applied for judging, whether the person changed has been
negligent or not, would be that of an ordinary competent person exercising ordinary skill in
that profession. It is not possible for every professional to p ossess the highest level of
expertise or skills is that branch which he practices. A highly skilled professional may be
possessed of better qualities, but that cannot be made the basis or the yardstick for judging
the performance of the professional proceeded against on indictment of negligence.

(4) The test for determining medical negligence as laid down in Bolam's case [1957] 1
W.L.R. 582, 586 holds good in its applicability in India.

(5) the jurisprudential concept of negligence differs in civil and criminal law. What may be
negligence in civil law may not necessarily be negligence in criminal law. For negligence to
amount to an offence, the element of mens rea must be shown to exist. For an act to
amount to criminal negligence, the degree of negligence should be much higher i.e., gross or

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of a very high degree. Negligence which is neither gross nor of a higher degree may provide a
ground for action in civil law but cannot form the basis for prosecution.

(6) The word 'gross' has not been used in Section 304 A of IPC, yet it is settled that in
criminal law negligence or recklessness, to be so held, must be of such a high degree as to be
'gross'. The expression 'rash or negligent act' as occurring in Section 304 A of the IPC
has to be read as qualified by the word 'grossly.'

(7) To prosecute a medical professional for negligence under criminal law it must be shown
that the accused did something or failed to do something which in the given facts and
circumstances no medical professional in his ordinary senses and prudence would have
done or failed to do. The hazard taken by the accused doctor should be of such a nature that
the injury which resulted was most likely imminent.

(8). Res ipsa loquitur is only a rule of evidenceand operates in the domain of civil law
specially in cases of torts and helps in determining the onus of proof in actions relating to
negligence. It cannot be pressed in service for determining per se the liability for negligence
within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial
on a charge of criminal negligence. In view of the principles laid down here in above and the
preceding discussion, we agree with the principles of law laid down in Dr Suresh Gupta's
case (2004) 6 SCC 422 and re-affirm the same. EX abundanti cautela, we clarify that what we
are affirming are the legal principles laid down and the law as stated in Dr. Suresh Gupta's
case. We may not be understood as having expressed any opinion on the question whether on
the facts of the case the accused could or could not have been held guilty of criminal
negligence as that question is not before us. We also approve of the

Alan Mery and Alexander McCall Smith which has been cited with approval in Dr Suresh
Gupta's case.

GUIDELINES: RE-PROSECUTING MEDICAL PROFESSIONALS

As we have noticed here in above 'that the cases of doctors (surgeons and physicians) being
subjected to criminal prosecution are on an increase. Sometimes such prosecutions are filed
by private complainants and sometimes by police on an FIR being lodged and cognizance

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taken. The investigating officer and the private complainant cannot always be supposed
to have knowledge of medical science so as to determine whether the act of the accused
medical professional amounts to rash or negligent act within the domain of criminal law
under Section 304-A of IPC. The criminal process once initiated subjects the medical
professional to serious embarrassment and sometimes harassment. He has to seek bail to
escape arrest, which may or may not be grated to him. At the end he may be exonerated by
acquittal or discharge but the loss which he has suffered in his reputation cannot be
compensate by any standards.

We may not be understood as holding that doctors can never be prosecuted for an offence of
which rashness or negligence is an essential ingredient. All that we are doing is to emphasize
the need for care and caution in the interest of society; for, the service which the medical
profession renders to human beings is probably the noblest of all, and hence there is a need
for protecting doctors from frivolous or unjust prosecution. Many a complainant prefers
recourse to criminal process a tool for pressurizing the medical professional for extracting
uncalled for or unjust compensation. Such malicious proceeding have to be guarded against.

Statutory Rules or Executive Instructions incorporating certain guidelines need to be framed

and issued by the government of India and/or the State Government in consultation with the
Medical Council of India. So long as it is not done, we propose to lay down certain guidelines
for the future which should govern the prosecutions of doctors for offences of which criminal
rashness or criminal negligence is an ingredient. A private complaint may not be
entertained unless the complainant has produced prima facie evidence before the Court
in the form of a credible opinion given by another competent doctor to support the
charge of rashness or negligence on the part of the accused doctor. The investigating
officer should, before proceeding against the doctor accused of rash or negligent act or
omission, obtain an independent and competent medical opinion preferably f rom a doctor in
government service qualified in that branch of medical practice who can normally be
expected to give an impartial and unbiased opinion applying Bolam's test to the facts
collected in the investigation. A doctor accused of rashness or negligence, may not be
arrested in a routine manner (Simply because a charge has been leveled against him). Unless
his arrest is necessary for furthering the investigation or for collecting evidence or
unless the investigation officer feels satisfied that the doctor proceeded against would

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not make himself available to face the prosecution unless arrested, the arrest may be
withheld.

Case at hand Reverting back to the facts of the case before us, we are satisfied that all the
averments made in the complaint, even if held to be proved, do not make out a case of
criminal rashness or negligence on the part of the accused appellant. It is not the case of the
complainant that the accused-appellant was not a doctor qualified to treat the patient whom
he agreed to treat. It is a case of non-availability of oxygen cylinder either because of the
hospital having failed to keep available a gas cylinder or because of the gas cylinder being
found empty. Then, probably the hospital may be liable in civil law (ro may not be-we
express no opinion thereon) but the accused appellant cannot be proceeded against under
Section 304A IPC on the parameters of Bolam's test.

RESULT

The appeals are allowed. The Prosecution of the accused appellant under Section 304A/34
IPC is quashed. All the interlocutory applications be treated as disposed of:

(R.C. Lahoti) .................................... CJI

(G.P. Mathur) .................................. J.
(P. K. Balasubramanyan) .............. J.
New Delhi; August 5, 2005

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SOME IMPORTANT INDIAN CASES:

1. In Municipal Corporation of Delhi vs. Subhagwanti 11 due to the collapse of the Clock
Tower situated opposite the Town Hall in the main Bazar of Chandni Chowk, Delhi, a
number of persons died. The Clock Tower belonged to the Municipal Corporation of
Delhi and was exclusively under its control. It was 80 years old but the normal life of
the structure of the top storey of the building which had fallen, could be 40-45 years
having regard to the kind of mortar used. In these circumstances the Supreme Court
held that the fall of Clock Tower tells its own story in raising an inference of
negligence on the part of the defendant. Since the defendants could not prove absence
of negligence on their part, they were held liable.

2. In Nirmala vs. Tamil Nadu Electricity Board12, the plaintiff’s husband, aged about 36
years and employed as Assistant Professor in Coimbatore Agricultural College was
working on his farm. On 20.10.1978 high tension wires of 440 watts, which were
running over the farm, had snapped and fallen over the farm. He treaded upon the
high tension wire which had snapped and was instantaneously struck dead by
electrocution. The mere fact that the high tension wire had snapped and fallen raised a
presumption of negligence on the part of the defendants in maintaining those wires. It
was also found that in this case no precaution had been taken to see that in the event
of wire snapping and falling down, there should be automatic disconnection of supply
of electrical energy. Moreover, no elementary precaution of periodical inspection of
wires to ensure and satisfy that there is no reasonable likelihood of the wires snapping
and falling down has been taken by the defendants. It was held to be a clear case of
res ipsa loquitur, where the defendants had failed to rebut the presumption of
negligence, and therefore, they were held liable.

11
A.I.R. 1966 S.C. 1750
12
A.I.R. 1984 Mad. 201

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 3. In Karnataka State Transport Corporation vs. Krishnan13, in an accident the two buses
brushed each other in such a way that the left hands of two passengers travelling in
one of these buses were cut off below the shoulder joint. It was held that the accident
itself speaks volumes for the negligence on the part of the drivers of both the vehicles.
The doctrine of res ipsa loquitur was applied to the case and, in absence of any
satisfactory explanation, the defendants were held liable.

4. In Gangaram vs. Kamlabai14, the front right tyre of a taxi burst as a result of which the
taxi left the road, went on its off-side and turned somersault. Two passengers
travelling in the taxi got killed in the accident. The high speed of the car was apparent
from the fact that the car had left drag marks nearly 20 feet on the Kutcha road and
then it toppled. It was held that the obvious inference in this case was that the tyre,
which had burst, was old and unroadworthy, and the speed of the taxi was excessive,
and, therefore, the doctrine of res ipsa loquitur was applicable to the case. The
defendants could not give any satisfactory explanation to rebut the presumption of
negligence, and they were held liable.

5. In Agya Kaur vs. Pepsu Road Transport Corporation 15, a rickshaw going on the
correct side was hit by a bus coming on the wrong side of the road. The speed of the
bus was so high that it, after hitting the rickshaw, also hit an electric pole on the
wrong side. It was held that from these facts the only inference which could be drawn
was that the driver of the bus was negligent. The defendant Corporation, whose driver
had caused the accident, was held liable.

13
A.I.R. 1981 Kant. 11.
14
A.I.R. 1979 Kant. 106
15
A.I.R. 1980 P.& H. 183

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REBUTTING OF THE PRESUMPTION OF NEGLIGENCE:

The rule of res ipsa loquitur only shifts the burden of proof and instead of the plaintiff
proving negligence on the part of the defendant, the defendant is required to disprove it. If the
defendant is able to prove that what apparently seems to be negligence was due to some
factors beyond his control, he can escape liability. In Nagamani vs. Corporation of Madras 16
a ventilator iron post, on a pavement, belonging to the Madras Corporation fell for unknown
reasons on a passerby causing head injuries and ultimate death for the persons. The
presumption of negligence on the part of the Corporation was raised but the Corporation was
able to rebut the presumption by proving that the steel column which had fallen had been
erected only 30 years ago whereas it had a normal life of 50 years, such columns were
securely fixed on a cement pavement in an iron socket sunk three feet deep and that
occasional inspection of the pillar including one made a month before the accident had
indicated no signs of such danger. The corporation was thus held not liable.

In a recent decision of the Supreme Court in Rajkot Municipal Corporation v. Manjulben

Jayantilal Nakum, a two judge bench appears to have discarded these evolving approaches.

This was a case from 1975, when a wayfarer was struck down by a roadside tree which was
in a state of decay. He succumbed to his injuries. The trial court, holding that the corporation
had failed to perform its statutory duty - which includes the duty to plant trees as well as to
maintain them in a healthy condition - decreed the suit for Rs. 45,000/-. The high court
affirmed this decision. The Supreme Court reversed, on a reasoning that rewrites many of
the notions of negligence and duty to care of statutory corporations.
The judgment draws elaborate distinctions between omission to perform a statutory duty as
actionable negligence and the positive action of a statutory authority which results in harm or
injury. The court suggests that this would be the distinction between misfeasance and non-
feasance and says: “where the public authority has decided to
exercise a power and has done it negligently a person who has acted in reliance on what the
public authority has done, may have no difficulty in proving that the damages which he has
suffered have been caused by the negligence.
Where the damage has resulted from a negligent failure to act there may be greater difficulty
in proving causation and requires examination in greater detail.”

16
A.I.R. 1956 Mad. 59

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The court saw the issues before it thus: whether the plaintiff had established that necessary
relationship giving rise to the duty of care. And, whether there was any negligence at the time
when the act in question was committed.
The court quickly added: “The tort of negligence does not depend simply on the question of
foreseeability.
Foreseeability is not the sole criterion nor does the fact that the damage is foreseeable create
any onus.”
Having visited the ‘neighbourhood’ or ‘proximity’ principle, and drawn the difference
between errors of judgment of a public authority and unreasonable exercise of discretion, the
court turned to the duty of care involved in planting and maintaining trees. Terming the
imposition of responsibility on statutory authority as “an intolerable burden of duty of care on
the authority” the court cautioned that this might “detract the authority from performing
its normal duties” and deter the planting of trees.
The question, as the court saw it, was whether the public authority, which is enjoined to plant
trees in public places and along the roads, owes a statutory duty towards that class of persons
who frequent and pass and re-pass on the public highway or road or the public places. Stating
that it is difficult to lay down any set standards, and that it
would depend on the facts and circumstances, the court held in conclusion that in the case
before it, the causation was too remote and the authority was not liable to be sued for the tort
of negligence.
The penultimate paragraph of the judgment reflects the court’s concerns which led it to so re-
work the concepts in tort of the duty of care and negligence. The conditions in India have not
developed such that a corporation can keep constant vigil on the healthy conditions of the
trees in public places, roadsides and highways frequented by passers-by, the court explained.
And held further: “There is no duty to maintain regular supervision thereof, though the local
authority.....is under a duty to plant and maintain the tree. ..It would not be just and proper to
fasten duty of care and liability for omission thereof. It would be difficult for the local
authority...to foresee such an occurrence.

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 CONCLUSION

The doctrine of res ipsa loquitur is an immensely important vehicle for

importing strict liability into negligence cases. It means that the thing speaks for
itself. It is a Latin maxim, which was for the first time expressed in the course
of argument in an old case BYRNE V. BOADLE. In this case a barrel of flour
rolled out of warehouse windows and fell upon a passing pedestrian.
I n this case Polloek C.B. observed that A barrel could not roll about a
warehouse without some negligence and to say that the plaintiff who is injured
by it must call for witness from the warehouse to prove negligence seems to me
preposterous. So as for example in building or repairing a house or a person
passing along the road is injured by something falling upon him. I think the
accident alone would be prima facie case of negligence.

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 BIBLIOGRAPHY

1. Lakshminath, A., The Law of Torts, Lexis & Nexis, 2006

2. Sridhar, M. ,The Law of Torts,Butterworths
3. Law of Torts by R.K.Bangia
4. Google
5. Wikipedia

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