NATIONAL UNIVERSITY FOR ADVANCED LEGAL STUDIES

Subject-Law of Torts

Topic-General Principles of Negligence

Submitted to Submitted by

Dr. Liji Samuel Sebin James

Roll No: 1246

Section A

B.A LLB (Hons.) SEM-1

TABLE OF CONTENTS

1. INTRODUCTION

2. OBJECTIVE OF THE STUDY

3. NEGLIGENCE IN COMMON LAW SYSTEM

4. NEGLIGENCE IN INDIAN LEGAL SYSTEM

5. HISTORY

NEGLIGENCE

6. ESSENTIALS OF NEGLIGENCE

7.DEFENSES IN NEGLLIGENCE

8. PROOF OF NEGLIGENCE:RES IPSA LOQUITOR

9.LANDMARK CASES

I. ENGLISH CASES
II. INDIAN CASES

10.CONCLUSION

11.BIBLIOGRAPHY
1. INTRODUCTION

The law of negligence requires that persons conduct themselves in a manner that conforms to certain

standards of conduct. Where a person’s actions violate those standards, the law requires the person to

compensate someone who is injured as a result. In some instances, the law of negligence also covers a person’s

omission to act. In tort law, negligence is a distinct cause of action. It is one of the most common personal

injury suits. It is often a difficult area of law as it involves the analysis of the elements of negligence in the

background of the variable facts of different cases.

The tort of negligence developed from trespass. The modern law of negligence can be said to have begun

with the case of Donoghue v. Stevenson (1932) although many 19th century cases helped in this development.

The term ‘negligence’ is used for the purpose of fastening the defendant with liability under the Civil Law and,

at times, under the Criminal Law. Generally speaking, it is the amount of damages incurred which is

determinative of the extent of liability in tort; but in criminal law it is not the amount of damages but the

amount of degree of the negligence that is determinative of liability.

2. OBJECTIVE OF THE STUDY

This research is aimed at identifying the general principles of negligence, to carry out a detailed research

on the essential ingredients to constitute a tort and the remedies available thereafter. The study will also discuss

the roots of negligence as a tort in the common law system and its current status. It will be supported by recent

as well as landmark Indian and English cases. The Project will then discuss the defenses available to escape the

liability of negligence. Negligence is a large and amorphous subject, and all parts of law on it are interlocking.

Hypothetical examples and actual cases will be discussed to make clear the principles of negligence.

3. NEGLIGENCE IN COMMON LAW SYSTEM

The concept of negligence developed under English law. Although English common law had long

imposed liability for the wrongful acts of others, negligence did not emerge as an independent cause of action
till the eighteenth century. Another important concept emerged at that time: legal liability for a failure to act.

Originally liability for failing to act was imposed on those who undertook to perform some service and

breached a promise to exercise care or skill in performing that service. Gradually the law began to imply a

promise to exercise care or skill in the performance of certain services. This promise to exercise care, whether

express or implied, formed the origins of the modern concept of ‘duty’. For example, innkeepers were said to

have a duty to protect the safety and security of the guests. Although there have been important developments in

negligence law, the basic concepts have remained the same since the eighteenth century. Today Negligence is

by far the widest ranging tort, encompassing virtually all unintentional, wrongful conduct that injures others.

After centuries of glacial development in the English forms of action, negligence law began to take a more

distinctive shape. Conveniently (if roughly) dated to Chief Judge Shaw’s 1850 decision in Brown v Kendall,60

Mass.292(1850)(p.100) negligence emerged as a distinct tort sometime during the middle of the nineteenth

century. The essence of the tort was that a person should be subject to liability for carelessly causing harm to

another. Also essential to negligence, evident from an early date, was the necessity of a causal connection

between the defendant’s breach of duty and the plaintiff’s damage that was natural, probable, proximate, and

not too remote. As early courts and commentators explored the developing tort of negligence, they increasingly

divided it into its essential pieces— “elements”—centered on a defendant’s failure to exercise due care and the

plaintiff’s proximately resulting harm. As negligence law proceeded to evolve, its elements were stated in a

variety of ways, but most courts and commentators in time came to assert that it contains four elements. In

perhaps its most conventional current iteration, negligence is formulated in terms of duty, breach, cause, and

damage. Yet, courts and commentators continue to disagree on what the four elements should contain, on just

how the various ideas recognized as essential to negligence claims should be stuffed into the four pigeonholes

Many courts frame the law of negligence within three elements—duty, breach, and proximately caused harm.

The generally accepted thesis here is that of the five-element formulation. This is because each of the five

components is complex and conceptually distinct, and because all must coexist or a negligence claim will fail.
 Throughout the 19th century and well into the 20th century, the very general principle of liability for the

failure to take reasonable care was offset against a highly particularistic approach to duty situations. In truth, the

practical operation of the tort of negligence was more dependent on the judicial determination of the precise

scope of the duty of care operative in any situation than it was on the evaluative question-decided by the jury-

whether reasonable care had been taken. From the 1930s, partly as a result of the general principle of liability

enunciated by Lord Atkin in Donoghue v Stevenson and partly as a result of the disappearance of the jury in

civil trials in England, the particularistic approach to duty situations was superseded by a more or less empty

rule that one should take reasonable care to avoid injuring one’s neighbor. This generated the all-embracing but

largely formless tort of negligence characteristic of common law systems at the start of the 21st century.

4. NEGLIGENCE AS A TORT IN INDIAN LEGAL SYSTEM

Negligence as a tort is a relatively new common law development supplemented by codifying statutes

including statutes governing damages. While India generally follows the U.K approach, there are certain

differences which may indicate judicial activism, hence creating controversy. In regard to negligence, Indian

jurisprudence have approved the approach stated in Ms Grewal & Anor v Deep Chand Soon & Ors[2001]L.R.I.

1289 at[14].The court held that ‘Negligence in common parlance mean and imply failure to exercise due care,

expected of a reasonable prudent person. It is a breach of duty and negligence in law ranging from

inadvertence to shameful disregard of safety of others….negligence represents a state of mind which however is

much serious in nature than mere advertence...Whereas inadvertence is a milder form of negligence, negligence

by itself means and implies a state of mind where there is no regard for duty or the supposed care and attention

which one ought to bestow.

This approach has laid down three basic elements of the tort of negligence:

 A legal duty to exercise ‘ordinary care and skill’.

  The breach of the 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.

 Resulting in injury to the plaintiff’s person or property.

Indian law as well as the English common law has taken the stance that the tort of negligence is based on

the principles of equity, justice and good conscience. The supreme court in Rajkot Municipal corporation.

v. Manjulben Jayantilal Nakum 1997(9) SCC 552 held that it could be deduced that the Indian judiciary has

expressly accepted the common law principles of negligence as evolved by the courts in England. It was

observed by Justice Ramaswamy in the abovementioned case, that the principles as laid down by the House

of Lords should be the guiding factor in determining such torts.

5. DEFINITION OF NEGLIGENCE

The jurisprudential concept of negligence defies any precise definition. Eminent jurists and leading judgments it

is said to have assigned various meanings to negligence. The Apex court in Jacob Mathew v. State of Punjab

(2005) 6 SCC 1] observed:

‘Negligence is a breach of 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. Actionable negligence consists in the neglect of the use of

ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property.’

According to Charlesworth & Percy, Negligence, in current forensic speech, Negligence has three meanings.

These are:

1. A state of mind, in which it is opposed to intention

2. Careless conduct: and

3. The breach of duty to take care that is imposed either by common law or statute.
NEGLIGENCE

6. ESSENTIALS OF NEGLIGENCE

I. Duty of care

It means a legal duty rather than a mere moral, religious or social duty. The plaintiff has to establish that the

defendant owed to him a specific legal duty to take care, of which he has made a breach. ‘Duty’ is the core

ingredient of the tort of negligence. Thus there can be no liability in respect of loss caused by incorrect evidence

given in the court; there is no general liability for failing to assist or protect others; and while one cannot say

that there is no duty of care in respect of economic loss caused by negligence, the liability which exists in that

context is considerably more restricted than that in respect of physical damage. What was said by du Parcq L.J

in 1946 is as true now as it was then, namely that:

“It is not true to say that whenever a person finds himself in such a position that unless he does a certain act

another person may suffer, or that if he does something another person will suffer, it is his duty in the one case

to be careful to do the act and in the other case to be careful not to do the act.”

On the facts, the defendant, an employer of a pantomime artiste, was not liable for failing to take steps to

provide secure locks on the theatre dressing rooms because there was no duty to guard employees’ property

against theft. Duty is the primary control device which allows courts to keep liability for negligence within what

they regard as acceptable limits and the controversies which have centered on the criteria for the existence of a

duty reflect differences of opinion as to the proper ambit of liability for negligence.

Whether the defendant owes a duty to the plaintiff or not depends on reasonable foreseeability of the injury to

the plaintiff. If at the time of the act or the omission, the defendant could reasonably foresee injury to the

plaintiff, he owes a duty to prevent that injury and failure to do that makes him liable. To decide culpability, we

have to determine what a reasonable man would have foreseen and thus form an idea of how he would have

behaved under the circumstances. In deciding as to how much care is to be taken in a certain situation, one

useful test is to enquire how obvious the risk must have been to an ordinary prudent man.
If however a duty does exist in this general sense then there may be an issue whether it is applicable to the

particular facts before the court or as it is said whether it was owed to the particular claimant. For example, the

House of Lords in Donoghue v. Stevenson was concerned with the general question whether the manufacturer

owed a duty of care to the ultimate user of his products and the conclusion was that he did.So we can say that A

duty of care was originally established by applying Lord Atkin’s “Neighbor” Test from:

Donoghue v Stevenson (1932).

The modern three-stage test was laid down by the HL in: Caparo Industries v Dickman (1990). The court must

now consider:

(A) Whether the consequences of the defendant’s act were reasonably foreseeable.

For example, damage or harm was held to be reasonably foreseeable in: Kent v Griffiths (2000); and Jolley v

Sutton LBC (2000). But not in: Bourhill v Young (1943); or Topp v London Country Bus Ltd (1993)

(B) Whether there is a relationship of proximity between the parties, i.e a legal relationship or physical

closeness.

For example, there was proximity in: Home Office v Dorset Yacht Club (1970). But not in: Caparo v. Dickman

(1990).

(C) Whether in all the circumstances it would be fair, just and reasonable that the law should impose a

duty.

It was held not to be fair, just and reasonable to impose a duty on the police in: Hill v C.C. of W. Yorkshire

(1988). However, a duty was imposed on the fire brigade in: Capital v Hampshire County Council (1997).

Why the law should ever deny recovery for negligently inflicted harm, why it should not always provide a

remedy for persons injured by unreasonable acts or omissions of others, is best revealed by example. A social

host may imprudently serve an adult guest too much alcohol before the guest attempts to drive home, yet courts

(and legislatures) have concluded that legal responsibility, as a matter of policy, should be borne alone by the
intoxicated guest who drives the car. In another situation, a jury might or might not consider it “negligent” for a

check casher or fast-food restaurant employee to fail to surrender money demanded by a gunman threatening a

hostage, but courts can probably best decide on a category basis whether the property interests of enterprises,

and society’s interests in discouraging hostage taking, should or should not be subordinated to the safety

interests of the hostages. As a final example, whether a passerby should be held accountable for negligently

failing to help a needy stranger, while clear perhaps to theologians, classically illustrates the kind of complex

policy decision that courts in negligence cases, through duty rules, normally choose to exclude from jury

consideration. Harm in all such cases is clearly foreseeable, but the kinds of choices among fundamental values

and policies lurking within these special types of cases suggest that courts might reasonably determine—as a

matter of legal principle, without input from a jury—that defendants in such situations should be categorically

exempt from the normal reach of the law of negligence. The element of duty, which draws upon a deep

reservoir of fairness, justice, and social policy, provides just this type of judicial tool.

II. BREACH OF DUTY

The defendant must not only owe the claimant a duty of care, he must be in breach of it. The test for

deciding whether there has been a breach of duty is laid down in Alderson B. in Blyth v. Birmingham

Waterworks Co. (1856)11 Ex. 781 at 784.

The general characteristics of a reasonable man have already been described. Since he is in abstraction, the

standard of reference he provides can be applied to particular cases only by the intuition of the court.

The law requires taking of two points into consideration to determine the standard of care required: a) the

importance of the object to be attained b) the magnitude of risk, and c) the amount of consideration for which

services are offered.

 a) The importance of object to be attained

Asquith L.J summed it up by saying that it is necessary to balance the risk against the consequences of not

taking it

‘As has often been pointed out, if all the trains in this country were restricted to a speed of five miles an hour,

there would be fewer accidents, but our national life would be intolerably slowed. The purpose to be served, if

sufficiently important, justifies the assumption of abnormal risk.’

If the law goes too far in setting the standard of care required the legitimate activities of the people in general

will be curtailed. The point is made with great force by the House of Lords in Tomlinson v Congleton

BC[2003]UKHL 47,[2004] 1 A.C 46.The particular context was the liability of an occupier in respect of

obvious, natural risks on his premises, the claimant having been seriously injured by taking a standing dive into

shallow water in a perfectly unexceptional lake and hitting his head on the bottom. However, what is said in

rejecting the argument that the occupier should have taken effective steps to keep people away from the water is

clearly of general application. As Lord Hoffman put it:

“I think that there is an important question of freedom at stake. It is unjust that the harmless recreation of

responsible parents and children with buckets and spades on the beaches should be prohibited in order to

comply with what is thought to be a legal duty to safeguard irresponsible visitors against dangers which are

perfectly obvious. The fact that such people take no notice of warnings cannot create a duty to take other steps

to protect them…A duty to protect against obvious risks or self inflicted harm exists only in cases in which

there is no genuine and informed choice, as in the case of employees whose works requires them to take the

risk, or some lack of capacity, such as the inability of children to recognize danger…or the despair of prisoners

which may lead them to inflict injury on themselves….”.

The balance between the risk on one hand and individual autonomy on the other is not a matter of expert

opinion. It is a judgment which the courts must make and which reflects the individualistic values of the

common law.
b. The Magnitude of the Risk

Two elements go to make up the magnitude of the risk, a) the likelihood that injury will be incurred and b) the

seriousness of the injury that is risked. In Bolton v Stone [1951] A.C 850 at 886-889,the claimant was standing

on the highway in a road adjoining a cricket ground when she was struck by a ball which a batsman had hit out

of the ground. Such an event was foreseeable and indeed, balls had to the defendant’s knowledge occasionally

been hit out of the ground before. Nevertheless, taking into account such factors as the distance from the pitch

to the edge of the ground, the presence of a seven foot fence and the upward slope of the ground in the direction

in which the ball was struck, the House Of Lords considered the likelihood of injury to a person in the

claimant’s position was so slight that the cricket club was not negligent in allowing cricket to be played without

having taken additional precautions such as increasing the height of the fence. As Lord Reid said:

‘I think that reasonable men do in fact take into account the degree of risk and do not act upon a bare possibility

as they would if the risk were more substantial.”

The relevance of seriousness of the injury was recognized by the House of Lords in Paris v Stepnney Borough

Council [1951] A.C 367.The claimant, a one eyed man employed by the defendants, was working in conditions

involving some risk of eye injury, but the likelihood of injury was not sufficient to call upon the defendants to

provide goggles to a normal two–eyed workman. In the case of the claimant, however goggles should have been

provided for, whereas the risk to a two eyed man was of the loss of one eye, the claimant risked the much

greater injury of total blindness. In assessing the magnitude of the risk it is important to notice that the duty of

care is owed to the claimant himself and therefore that if he suffers from some disability which increases the

magnitude of the risk to him that disability must be taken into account so long as it is or should be known to the

defendant. If it is unknown and could not reasonably have been known to the defendant then it is, of course,

irrelevant.

The risk must be balanced against the measures necessary to eliminate it, and the practical measures which the

defendant could have taken must be considered, Refer Latimer v A.E.C [1953] A.C 643.
c. The amount of consideration for which services etc. are offered

The degree of care also depends upon the kind of services offered by the defendant and the consideration

charge therefore from the plaintiff. For instance, one who purchases a glass of water from a trolley in the street

for 10 or 25 paisa is entitled to safe drinking water which should not ordinarily infect him. But if a person

purchases a mineral water bottle for Rs 15/-, then he can be justifiably demand higher degree of purity. The

manufacturer of water bottle cannot be heard to say that so long he has made it equivalent to trolley man’s

water, he has done his duty. Similarly, a patient admitted to a luxury hospital say for Rs 5000/- a day would be

justified in demanding higher and sophisticated degree of care, comfort, convenience and recovery than merely

sterilization from infection as could be expected in the general ward of a hospital. But there should be no

difference between a five star hotel owner and insurer so far as the safety of the guest is concerned.

In Klaus Mittelbachert v. East India Hotels Ltd. A.I.R 1997 Delhi 201,the question of liability of a five star hotel

arose to a visitor, who got seriously injured when he took a dive in the swimming pool. It was observed that

there is no difference between a five star hotel owner and insurer so far the safety of guests is concerned. It was

also observed: A five star hotel charging a high or fancy price from its guests owes a high degree of care as

regards the quality and safety of its structure and services it offers and makes available. Any latent defect in its

structure or service, which is hazardous to the guests, would attract strict liability to compensate for

consequences flowing from the breach of duty to take care. For the damage caused to guests of such a hotel,

exemplary damages become payable.

In the above case, the plaintiff got paralyzed while he dived in the swimming pool and after suffering

considerable pain and spending a lot of money on medicines, special diet and rehabilitation; he died 13 years

after the accident. He was awarded damages amounting to Rs 50 lakhs. The principles laid down in this case

still stand although the division bench reversed the decision in appeal on the ground that the cause of action in

the pending case died with the death of the claimant.

III. CAUSE IN FACT

Few problems are more intriguing, with solutions more elusive, than causation—the causes and effects of

molecular actions, biologic activity, and human choices to act and refrain from acting in certain ways. “The

attraction of causes is as magnetic for people as flame are for insects, and it is frequently as deadly.”

Before negligence law assigns responsibility to a defendant for a plaintiff’s harm, it demands that the plaintiff

establish a cause-and-effect relationship between the negligence and the harm. Causation thus provides the

central negligence element that links the defendant’s wrong to the plaintiff’s harm. Thousands of people every

day are injured or killed in car collisions, slip-and-fall accidents, and myriad other kinds of accidents. While

many such incidents are attributable to the negligence of one or more persons, many others result from simple

bad luck or the careless behavior of victims themselves. Negligence law allows an accident victim to recover

damages only if the defendant was at least partially to blame for causing the accident. The element of “cause in

fact” (or “factual cause”) thus may be described as the actual connection between a defendant’s negligence and

the plaintiff’s harm.

To prove causation, it does not suffice for the plaintiff to show merely that the defendant’s conduct caused the

harm; the plaintiff must further link his or her damage to the defendant’s negligence, the aspect of the conduct

that breached a duty to the plaintiff. So, if a person steps off a curb into a roadway and is hit by a car driven

negligently too fast, the pedestrian in a negligence suit against the driver must show not only that the

defendant’s car hit him or her, and that the defendant was driving negligently, but also that it was the excess

speed that amounted to the negligence that actually caused the harm. If, instead, the evidence reveals that the

driver probably would have hit the pedestrian anyway, even if the car had been operated at a reasonable rate of

speed, then the accident was caused only by the driver’s conduct, not by the negligent aspect of the conduct

which was merely incidental to the accidental harm.

The speeding-car-striking-pedestrian example illustrates the basic causation standard, the “but-for” test, which

requires that a defendant’s negligence be a sine qua non of the plaintiff’s harm, a necessary antecedent without
which the harm would not have occurred. Put otherwise, the defendant’s negligence is a cause of the plaintiff’s

harm if the harm would not have occurred but for the defendant’s negligence.

While a plaintiff normally must prove causation, the burden of proof on this element may shift to two or more

defendants in certain special situations. Assume that three people are hunting quail, that two negligently fire

shotguns in the direction of the third, that a pellet from one gun hits the third hunter, the plaintiff, but that the

plaintiff cannot establish from which gun the pellet came. In this special situation, where the plaintiff cannot

prove which of the defendants’ similar acts of negligence caused the harm, both defendants may be subject to

liability unless one is able to prove that he or she did not cause the injury.

IV. . PROXIMATE CAUSE

Proximate cause, though linked to cause in fact, is a separate element unto itself. The issue usually called

“proximate cause” is very different from the issue of factual causation, the element just examined. Presupposing

some factual connection between a defendant’s breach of duty and the plaintiff’s injury, proximate cause

addresses instead the question of whether in logic, fairness, policy, and practicality, the defendant ought to be

held legally accountable for the plaintiff’s harm that in some manner is “remote” from the defendant’s breach.

Proximate cause might thus be defined, if somewhat tautologically, as a reasonably close connection between a

defendants’ wrong and the plaintiff’s injury, a conne

ction that is not remote. More broadly, proximate cause is a doctrine that serves to limit a tortfeasor’s

responsibility to the consequences of risks viewed fairly as arising from the wrong. Because “it is always to be

determined on the facts of each case upon mixed considerations of logic, common sense, justice, policy and

precedent,”

Proximate cause is an “elusive butterfly” that evader evades a net of rules.

Quite like duty, proximate cause provides a broad fairness cauldron into which many factual and legal issues

are thrown and mixed together. Yet, while traditionally referred to as “legal cause” (in an effort to distinguish it

from factual cause), proximate cause is an issue of “fact” for resolution by a jury. Whereas courts determine
duty according to policy factors applicable to whole categories of actors in recurring situations, juries determine

proximate cause according to fairness facts unique to every case.

Proximate cause goes by a variety of names. “Proximate cause” itself is often used to describe both causal

issues, factual and proximate alike, as commonly are the terms “cause” and “causation,” words that more

comfortably describe cause in fact alone. This terminological confusion means, of course, that a lawyer reading

judicial decisions discussing “proximate cause” (and certainly “causation”) needs to be on guard for the

possibility that the court actually may be addressing the issue of cause in fact, not proximate cause at all. By

whatever name, proximate cause is an elemental requirement of every negligence claim.

Because proximate cause is little more than a swirling maelstrom of policy, practicality, and case-specific

fairness considerations—rather than a meaningful set of rules or even principles—it would seem incapable of

being subjected to rational “testing.” Yet, lawyers, courts, and juries invariably seek guidance in unraveling the

mysteries of this perplexing doctrine, which has led to an eternal search for a proper “test” for deciding whether

a plaintiff’s injury in any particular case was a proximate result of the defendant’s wrong. Over the years, courts

have applied a number of tests that still sometimes inform judicial decisions, at least to some extent. A

prominent early test turned on whether a harmful result was “direct consequence” of the defendant’s negligence.

Under this test, a cause is proximate which, in natural and continuous sequence, unbroken by any efficient,

intervening cause, produces the plaintiff’s harm.

Today, the concept of “foresee ability,” in one formulation or another, is the cornerstone of proximate cause.

Under this “test,” the responsibility of an actor for the consequences of wrongful action is limited by principles

of reasonable “foresee ability.” This outer boundary of tortuous responsibility seeks to prevent actors from

being held liable for consequences that fall outside the scope of their wrongdoing, beyond their moral

accountability. The idea here is that responsibility for consequences should be based on the quality of an actor’s

choices that led to the consequences. The moral fiber of such choices is gauged by consequences the actor

should have contemplated as plausible eventualities at the time the choice was made. If some other,

“unforeseeable,” consequence eventuates from a chosen action, the fact that it lies outside the bundle of
consequences the actor reasonably should have contemplated means that it probably did not inform the actor’s

deliberations and choice. There thus is no substantial moral connection between a person’s actions and their

consequences that are unforeseeable. So, in evaluating the moral quality of an actor’s choice, only foreseeable

consequences of the choice may fairly be considered. This is a moral justification for bounding the law of torts

by the foreseeable scope of risk.

Defendants are protected from the remote conse

quences of their negligence in two general types of cases. In the first sight, the consequences of a defendant’s

negligence appear simply too attenuated, perhaps too bizarre, even in retrospect—“too cockeyed and far-

fetched.” So, if the plaintiff is injured in a fall from slipping on the vomit of a friend who was nauseated by a

smelly plate of shrimp, the injurious consequences may simply seem too far outside the foreseeable risks of

serving foul food to hold the restaurateur responsible for the plaintiff’s harm.

A second situation in which the connection between a defendant’s breach of duty and the plaintiff’s harm may

appear tenuous or “remote” is where some person or force, other than the plaintiff or defendant, intervenes

between the defendant’s negligence and the harm. After the consequences of the defendant’s negligence are let

loose, some third party may come along and deliberately convert those consequences into an instrument of

harm. For example, a railroad’s negligence may cause a tank car to derail so that gasoline streams throughout a

town. Thereafter, a person may throw a match into the gasoline, for the purpose of setting a fire, which may

cause the fumes to explode and cause an injury. Such egregious misconduct by a third party, that combines

with, but grossly distorts, the natural consequences of the defendant’s negligence in a manner that harms the

plaintiff, raises a question of whether the third party’s conduct in fairness should relieve the defendant of

responsibility for the harm for which its negligence was, at least in part, causally responsible.

The question in such intervening cause cases is whether the third party’s conduct, intervening upon a set of risks

created by the defendant’s negligence, distances the defendant so far from the plaintiff’s harm that the

defendant’s misconduct should be considered legally “remote” and, hence, no longer a “proximate” cause of the
plaintiff’s harm. Stated another way, the issue in cases of this type is whether the third party’s conduct so

dominates the consequences of the defendant’s negligence as to trivialize the defendant’s role in causing the

plaintiff’s harm, such that the defendant fairly should be relieved of all responsibility. If a jury or court

concludes that such an “intervening” force or cause was so significant that it “breaks the chain” of proximate

causation, the intervening cause of the third party is termed “superseding” and the defendant is insulated from

all responsibility for the harm.

In both these situations—where the consequences of a defendant’s negligence appear tenuous and bizarre, and

where a third party’s intervening misconduct may dwarf the defendant’s conduct into moral insignificance—

courts almost universally turn to a standard “test” for proximate cause: foresee ability. As with proximate cause

more generally, foresee ability provides little real guidance in most cases, even when enriched a bit as

“reasonably foreseeable,” or “scope of (foreseeable) risk.” Nevertheless, most courts seem perfectly content

with using foresee ability as the polestar for determining whether a defendant should be held responsible for

consequences of his or her negligence that somehow are remote.

V. . HARM

The last element of a negligence claim is harm, the damage a plaintiff suffers as a proximate result of a

defendant’s breach of duty. Requiring a defendant to compensate the plaintiff for harm improperly inflicted by

the defendant is the underlying, restitutionary (and deterrent) objective of the negligence cause of action. That

is, as much as money damages can do so, the law requires a negligent tortfeasor to restore what the plaintiff lost

as a proximate result of the defendant’s wrong.

The interest normally protected by the law of negligence is freedom from improperly inflicted physical harm,

including physical injury, death, and property damage. This means that negligence law normally does not

protect plaintiffs against the risk of “pure” economic loss (such as lost wages, a lost contract, or lost profits)

where the plaintiff does not also suffer physical harm. But the law of negligence does allow accident victims to

recover damages for their secondary losses proximately flowing from a physical injury, including lost earnings

and earning power, pain and suffering, emotional distress, and, in some jurisdictions, lost enjoyment of life.
7. DEFENSES IN NEGLIGENCE

1) CONTRIBUTORY NEGLIGENCE

In common law, contributory negligence was a complete defense When the plaintiff was guilty of contributory

negligence he could not claim any compensation from the negligent defendant. The rule that contributory

negligence was a complete defense was a great hardship to the plaintiff because for slight negligence on his

part, he may lose his action against the defendant who was more to blame.

a)Doctrine of Last Opportunity’s Rule

In the law of torts, the doctrine that excuses or negates the effect of the plaintiff’s contributory negligence and

permits him or her to recover in particular instances, damages regardless of his or her own lack of ordinary care

is the above one.

The Rule of Last clear chance operates when the plaintiff negligently enters into an area of danger from which

the person cannot extricate himself or herself. The defendant has the final opportunity to prevent the harm that

the plaintiff otherwise will suffer. The doctrine was formulated to relieve the severity of the applications of

contributory negligence rule against the plaintiff, which completely bars any recovery if the person was at all

negligent.

There are as many variations and adaptations of this doctrine as there are jurisdictions that apply it. Four

different elements categories have emerged, which are classified as helpless plaintiffs, inattentive plaintiffs,

observant defendants and inattentive defendants.

b)Doctrine of Alternative Danger

It is the dilemma principle or choice of the evils or the agony of the moment means:When the plaintiff is

suddenly put in a position of imminent personal danger by the wrongful act of the defendant and he takes

reasonable decision to avoid the danger and acts accordingly and suffers injuries consequently,the defendant is

liable.
Awarding of Damages

To claim compensation a person must suffer harm. Recovery of compensation depends upon the type of harm

suffered. These harms may fall in the following cases:

A. Physical harm

B. Harm to reputation

C. Harm to property; land and buildings and interests pertaining thereto, and his goods;

D. Economic loss; and

E. Mental harm or nervous shock

CLASSIFICATION OF DAMAGES

There are several types of damages a court may award.

GENERAL AND SPECIAL DAMAGES

General damages are determined by the court as they are not capable of being precisely calculated at the time of

the trial. They must be stated but no precise figure can be placed on them. General damages are strictly

described as damages which are presumed to flow from torts which are actionable per se. (without the need to

prove loss or damage).

Special damages are losses which can be precisely calculated at the time of the trial and are presented in the

form of a calculation. Special damages are strictly described as damages which the claimant can prove as a part

of their action. Therefore, in negligence a claim for actual loss is classified as special damages.

The classification of damages, as general or special, has practical relevance for the calculations relating to

interest payments.

NOMINAL DAMAGES

Nominal damages are awarded in torts which are actionable per se. Negligence requires the loss or damage to

be proved therefore, nominal damages do not apply in negligence claims.

EXEMPLARY OR PUNITIVE DAMAGES

If it is particularly difficult to assess the damages that should be awarded to a claimant, in monetary terms, then

the courts can impose exemplary or punitive damages. The courts use these damages to punish the defendant

and to act as deterrence to others, so can award huge sums in extreme cases.

8. PROOF OF NEGLIGENCE: RES IPSA LOQUITUR

It is open to the court to infer negligence from the circumstances in which the accident occurred. This has

traditionally been described by the phrase res ipsa loquitur-the thing speaks for itself. In the past there was a

tendency to elevate this to a special rule of the law of negligence and the older cases should be read with this in

mind. One had disputes as to whether res ipsa loquitur “could’ apply to complex matters like surgery or the

operation of an aircraft, but to modern eyes these controversies are misplaced, because matters of drawing

inferences from particular facts cannot be subject to rules of law and it is not possible to identify in advance the

categories of fact situations to which res ipsa loquitur will be applicable. It would be impossible to argue that if

a patient dies during surgery or a child is born with brain damage that necessarily establishes a prima facie case

of negligence against the doctors or the theatre staff. On the other hand if the procedure is simple and regarded

as unattended by serious risk, an adverse outcome may well justify an inference of negligence. Even in such a

case, however, the claimant will probably need to lay down a foundation with expert evidence about the

procedure, whereas a court is not likely to require expert evidence before it concludes that a car veering across

the carriageway suggests negligence on the part of the driver. It has been said that in medical negligence cases

the essential function of res ipsa loquitur is not so much to prove the claimant’s case as to enable him, when he

is not in possession of all the material facts.

The essential element is that the mere fact of the happening of the accident should tell its own story so as to

establish a prima facie case against the defendant. This is commonly divided into two parts on the basis of Erle

C.J’s famous statement in Scott v. London and St. Katherine Dock Co.(1865)3H & C .596:
“There must be reasonable evidence of negligence, but when the thing is shown to be under the management of

the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if

those who have the management use proper care, it affords reasonable evidence, in the absence of explanation

by the defendants, that the accident arose from want of care”

So the elements are a) control and b) an accident of a type which does not normally occur without the

defendant’s fault. In reality, however, the two parts are closely interconnected: ‘control’ is required because the

absence of control by the defendant makes it less likely that the accident arose from his fault.

Specific Duties

In some instances, a statute or other law may define specific duties, such as the duty of a person to rescue

another. Professionals, such as doctors and lawyers, are also required to uphold a standard of care expected in

their profession when a professional fails to uphold such a standard of care, the professional may be liable for

malpractice, which is based on the law of negligence.

9. LANDMARK CASES ON NEGLIGENCE

I. ENGLISH CASES

Caparo Industries Plc V Dickman

Caparo Industries plc v Dickman [1990] UKHL 2 is a leading English tort law case on the test for a duty of

care. The House of Lords, following the Court of Appeal, set out a "three-fold test". In order for a duty of care

to arise in negligence:

 harm must be reasonably foreseeable as a result of the defendant's conduct (as established in Donoghue

v Stevenson),

 the parties must be in a relationship of proximity, and

 it must be fair, just and reasonable to impose liability

Facts

A company called Fidelity plc, manufacturers of electrical equipment, was the target of a takeover by Caparo

Industries plc. Fidelity was not doing well. In March 1984 Fidelity had issued a profit warning, which had

halved its share price. In May 1984 Fidelity's directors made a preliminary announcement in its annual profits

for the year up to March. This confirmed the position was bad. The share price fell again. At this point Caparo

had begun buying up shares in large numbers. In June 1984 the annual accounts, which were done with the help

of the accountant Dickman, were issued to the shareholders, which now included Caparo. Caparo reached a

shareholding of 29.9% of the company, at which point it made a general offer for the remaining shares, as the

City Code's rules on takeovers required. But once it had control, Caparo found that Fidelity's accounts were in

an even worse state than had been revealed by the directors or the auditors. It sued Dickman for negligence in

preparing the accounts and sought to recover its losses. This was the difference in value between the company

as it had and what it would have had if the accounts had been accurate.

Judgement

Court of Appeal

Lord Bingham of Cornhill

The majority of the Court of Appeal (Bingham LJ and Taylor LJ, O'Connor LJ dissenting) held that a duty was

owed by the auditor to shareholders individually, and although it was not necessary to decide that in this case

and the judgment was obiter, that a duty would not be owed to an outside investor who had no shareholding.

Bingham LJ held that, for a duty owed to shareholders directly, the very purpose of publishing accounts was to

inform investors so that they could make choices within a company about how to use their shares. But for

outside investors, a relationship of proximity would be "tenuous" at best, and that it would certainly not be "fair,

just and reasonable". O'Connor LJ, in dissent, would have held that no duty was owed at all to either group. He

used the example of a shareholder and his friend both looking at an account report. He thought that if both went

and invested, the friend who had no previous shareholding would certainly not have a sufficiently proximate
relationship to the negligent auditor. So it would not be sensible or fair to say that the shareholder did either.

Leave was given to appeal.

The "three stage" test, adopted from Sir Neil Lawson in the High Court, was elaborated by Bingham

LJ(subsequently the Senior Law Lord) in his judgment at the Court of Appeal. In it he extrapolated from

previously confusing cases what he thought were three main principles to be applied across the law of

negligence for the duty of care.

House of Lords

Lord Bridge of Harwich who delivered the leading judgment restated the so-called "Caparo test" which

Bingham LJ had formulated below. His decision was, following O'Connor LJ's dissent in the Court of Appeal,

that no duty was owed at all, either to existing shareholders or to future investors by a negligent auditor. The

purpose of the statutory requirement for an audit of public companies under the Companies Act 1985 was the

making of a report to enable shareholders to exercise their class rights in general meeting. It did not extend to

the provision of information to assist shareholders in the making of decisions as to future investment in the

company.

He said that the principles have developed since Anns v Merton London Borough Council. Indeed, even Lord

Wilberforce had subsequently recognized that foresee ability alone was not a sufficient test of proximity. It is

necessary to consider the particular circumstances and relationships which exist.

Lord Bridge then proceeded to analyze the particular facts of the case based upon principles of proximity and

relationship. He referred approvingly to the dissenting judgment of Lord Justice Denning (as he then was)

in Candler v Crane, Christmas & Co [1951] 2 KB 164 where Denning LJ held that the relationship must be one

where the accountant or auditor preparing the accounts was aware of the particular person and purpose for

which the accounts being prepared would be used.

There could not be a duty owed in respect of "liability in an indeterminate amount for an indeterminate time to

an indeterminate class" (Ultramares Corp v Touche, per Cardozo C.J New York Court of Appeals). Applying
those principles, the defendants owed no duty of care to potential investors in the company who might acquire

shares in the company on the basis of the audited accounts.

Although it was not necessary to decide the matter, it would seem unlikely that shareholders independently

would have any right of action against the auditors for negligently prepared accounts even if they chose to

dispose of their shares on the basis of those accounts. The company itself would have a right of action for any

loss it suffered as a result of those accounts being negligently prepared.

Lord Oliver and Lord Jauncey, Lord Roskill and Lord Ackner agreed.

Significance

 The judgment overturned the decision of a judge at first instance in JEB Fasteners Ltd v Marks Bloom

& Co.

 Caparo and its extent were further discussed in Her Majesty's Commissioners of Customs and Excise v

Barclays Bank Plc and Moore Stephens v Stone Rolls Ltd.

 In New Zealand, Caparo stands in disagreement with a decision of the New Zealand Court of

Appeal in Scott Group Ltd v McFarlane. In both of these cases a duty of care was found in substantially

similar circumstances.

 In Australia, Caparo was followed in Esanda Finance Corporation Ltd v Peat Marwick

Hungerfords.Caparo is also noted for the comments made as to the analysis of Brennan J of

the Australian High Court in Council of the Shire of Sutherland v Heyman espousing the proposition that

the law should develop novel categories of negligence 'incrementally and by analogy with established

categories'. That observation was subsequently rejected in Sullivan v Moody.

STUDY: DONOGHUE V. STEVENSON (1932)

Citation: [1932] AC 562

Case Summary of Donoghue V Stevenson [1932] A.C. 562, [1932] UKHL 100, 1932 S.C. (H.L.) 31, 1932

S.L.T. 317, [1932] W.N. 139.The Doctrine Of Negligence

INTRODUCTION

Donoghue, a Scottish dispute, is a famous case in English law which was instrumental in shaping the law of tort

and the doctrine of negligence in particular.

FACTS

On August 26 1928, Mrs Donoghue's friend bought her a ginger-beer from Wellmeadow Café in Paisley. She

consumed about half of the bottle, which was made of dark opaque glass, when the remainder of the contents

was poured into a tumbler. At this point, the decomposed remains of a snail floated out causing her alleged

shock and severe gastro-enteritis.

Mrs. Donoghue was not able to claim through breach of warranty of a contract: she was not party to any

contract. Therefore, she issued proceedings against Stevenson, the manufacture, which snaked its way up to the

House of Lords.

ISSUES

The question for the House of Lords was if the manufacturer owed Mrs. Donoghue a duty of care in the absence

of contractual relations contrary to established case law. Donoghue was effectively a test case to determine if

she had a cause of action, not if she was owed compensation for any damages suffered.

The law of negligence at the time was very narrow and was invoked only if there was some established

contractual relationship. An earlier case3, involving two children and floating mice, held that:
  Absent a contract, a manufacturer owed no duty of care to a consumer when putting a product on the

market except:

1. If the manufacturer was aware that the product was dangerous because of a defect and it was

concealed from the consumer (i.e., fraud); or

2. The product was danger per se and failed to warn the consumer of this.

Unlike Mullen, which stopped at the Court of Session, Mrs. Donoghue took her case to the HoL.

DECISION/OUTCOME

The HoL found for Mrs Donoghue with the leading judgment delivered by Lord Atkin in a 3-2 majority with

Buckmaster L and Tomlin L dissenting. The ratio decidendi of the case is not straightforward. Indeed, it could

be interpreted as narrow as to establish a duty not to sell opaque bottles of ginger-beer, containing the

decomposed remains of a dead snail, to Scottish widows.

Read more broadly, the decision has several components: first, negligence is distinct and separate in tort;

second, there does not need to be a contractual relationship for a duty to be established; third, manufacturers

owe a duty to the consumers who they intend to use their product.

However, the primary outcome of Donoghue, and what it is best known for, is the further development of the

neighbor principle by Lord Atkin, who said:

The rule that you are to love your neighbor becomes in law, you must not injure your neighbor; and the lawyer's

question, who is my neighbor? It receives a restricted reply. You must take reasonable care to avoid acts or

omissions which you can reasonably foresee would be likely to injure your neighbor. Who, then, in law is my

neighbor? The answer seems to be - persons who are so closely and directly affected by my act that I ought

reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or

omissions which are called in question.

Mrs Donoghue had proved her averments that she had a cause of action in law.

ANALYSIS

Donoghue was not the first case to attempt to sever the dependence of negligence on contract; a few years

previously, Lord Ormidale in Mullen, said, '. . . it would appear to be reasonable and equitable to hold that, in

the circumstances and apart altogether from contract, there exists a relationship of duty as between the maker

and the consumer of the beer.'9 Thus, the doctrine is based in law and morality. The impact of Donoghue on tort

law cannot be understated; it was a watershed moment effectively establishing tort as separate from contract

law.

However, it is important to remember that Donoghue was a milestone in a new principle which needed refining,

as Lord Reid said, '. . . the well known passage in Lord Atkin's speech should, I think, be regarded as a

statement of principle. It is not to be treated as if it were a statutory definition. It will require qualification in

new circumstances.'

The next major development in the 'neighbor principle' came from Hedley Byrne v Heller11 which concerned

economic loss. However, the locus classicus of the 'neighbor test' is found in another economic loss case called

Caparo Industries v Dickman:

What emerges is that, in addition to the foresee ability of damage, necessary ingredients in any situation giving

rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is

owed a relationship characterized by the law as one of 'proximity' or 'neighborhood' and that the situation

should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a

given scope on the one party for the benefit of the other.

Thus, boiled down the requirements are: forseeability, proximity, and fairness (policy considerations). There

has been a certain degree of overlap between the requirements with Lord Hoffman stating that the distinctions

between them, '. . . somewhat porous but they are probably none the worse for that.'
It was argued unsuccessfully in Mitchell and another v Glasgow City Council15 that because Caparo was

concerned with economic loss it had little application to personal injury claims; Lord Hope said that, "....the

origins of the fair, just and reasonable test show that its utility is not confined to that category."

The outcome of Donoghue has reverberated through law as a whole. It essentially birthed a new area of law to

the benefit and detriment of some. For example, personal injury which is steeped in both statutory duty and the

'neighbor principle'. Indeed, it has grown to the point where there are concerns of an American style

'compensation culture' best expressed by Lord Hobhouse17 when he linked it to the restriction of the liberty of

individuals: 'the pursuit of an unrestrained culture of blame and compensation has many evil consequences and

one is certainly the interference with the liberty of the citizen.'

Interestingly, the facts were never tested in Donoghue; we will never know if there was a snail in the bottle.

II. INDIAN CASES

Dr. Kunal Saha v. Dr. Sukumar Mukherjee & Ors.

III (2006) CPJ 142 NC

Original Petition No. 240 of 1999, decided by the National Consumer Disputes Redressal Commission, New

Delhi on 21-10-2011.

Facts: Smt. Anuradha Saha, aged about 36 years, wife of the complainant became the unfortunate victim of

"TEN" (Toxic Epidermal Necrolysis) when she along with the complainant was in India for a holiday during

April-May 1998. "TEN" is a rare and deadly disease. A patient with TEN loses epidermis in sheet-like fashion

leaving extensive areas or denuded dermis that must be treated like a larze, superficial, partial-thickness burn

wound. The incidence of TEN has been reported at 1 to 1.3 per million per year, female-male ratio is 3:2. It

accounts for nearly 1% of drug reactions that require hospitalization, and has a mortality rate of 25 to 70 per

cent. She and the complainant although of Indian origin were settled in the United States of America. The

complainant was a doctor by profession and was engaged in research on HIV/AIDS for the past fifteen years.

Anuradha showed certain symptoms of rashes over her body and received treatment at the hands of Opposite
Parties and some other doctors as outdoor patient up to 10-5-1998 and she was admitted in Advanced

Medicare and Research Institute Limited, Calcutta (AMRI), on 11-5-1998, where she was treated by the

Opposite Parties and other doctors until 16-5-1998. As there was no improvement in her condition, she was

shifted to Breach Candy Hospital, Mumbai, on 17-5-1998 by an air ambulance. She was treated in Breach

Candy Hospital from 17-5-1998 evening till she breathed her last on 28-5-1998.

Complaint was filed by the complainant against the opposite parties claiming a total compensation of ` 77, 07,

45,000. Complainant also filed criminal complaint against some of the doctors and the hospital under section

304A IPC.

A three-member Bench of NCDRC dismissed the complaint by an order dated 1-6-2006. Aggrieved by the

dismissal of his complaint, the complainant filed Civil Appeal in the Hon'ble Supreme Court. Since the

Criminal Appeal and the Civil Appeal filed by the complainant in the present complaint raised the same

questions of fact and law, the Hon'ble Supreme Court heard all the appeals together and decided the same by

means of a detailed judgment dated 7-8-2009, dismissed the Criminal Appeal but allowed the Civil Appeal

filed by the complainant and set aside the order dated 1-6-2006 passed by NCDRC dismissing the complaint

and remanded the matter for the limited purpose of determining the adequate compensation.

Observations: The findings given and observations made by the Supreme Court in its judgment dated 7-8-

2009 are absolutely binding on this Commission not only as ratio decidendi  but also as obiter dicta .

Plea on Quantum: It was emphatically argued by the complainant that Anuradha was about 36 years of age at

the time of her death and the complainant - husband about 40 years of age, the multiplier method used to

determine compensation in cases of death or injury under the provisions of the Motor Vehicles Act cannot be

applied in the present case and complainant is well within his rights to claim compensation equivalent to the

amount which deceased would have contributed for a period of about 34 years i.e. up to the age of 70 years

depending on her income. The complainant and his wife, though of Indian origin, were citizens of US at the

relevant time when Anuradha met her death due to medical negligence. They were working for gain in the US
and were drawing emoluments as per the standard of that country; therefore, complainant is entitled to higher

compensation than what would have been granted to a similarly situated Indian citizen. Strong contentions

were raised by the opposite parties about the admissibility of the statement of salary of the deceased as the

admissible proof of income of the deceased.

Held: Multiplier method provided under the Motor Vehicles Act for calculating the compensation is the only

proper and scientific method for determination of compensation even in the cases where death of the patient

has been occasioned due to medical negligence/deficiency in service in the treatment of the patient, as there is

no difference in legal theory between a patient dying through medical negligence and the victim dying in

industrial or motor accident. The foreign residence of the complainant or the patient and the income of the

deceased patient in a foreign country are relevant factors but the compensation awarded by Indian Fora cannot

be at par which is ordinarily granted by foreign courts in such cases. The theoretical opinion / assessment

made by a Foreign Expert as to the future income of a person and situation prevalent in that country cannot

form a sound basis for determination of future income of such person and the Commission has to work out the

income of the deceased having regard to her last income and future prospects in terms of the criteria laid down

by the Supreme Court. The argument of the opposite parties does not appear wholly untenable if we go strictly

by the rule of admissibility of the evidence in accordance with the provisions of the Indian Evidence Act.

However, the procedure provided for deciding the complaints under the Consumer Protection Act, 1986, does

not enjoin upon a consumer foray like the present Commission to insist upon the strict proof of the documents

in accordance with the Evidence Act. In any case no contrary material has been brought on record to assail the

authenticity of this certificate. The opposite parties contended that complainant has miserably failed to

establish either the education / professional qualification of the deceased or that she was drawing any regular

income and if so, what was her actual income which she was generating from her work of child counseling,

assuming that she was engaged in such an activity. We must reject these submissions as too technical and as an

attempt to thwart even the legitimate claim of the complainant particularly when nothing contrary to the above

record as regards her qualification from Columbia University, graduation degree and post-graduation degree,
income certificate have been brought on record. In any case, the complainant has claimed much less than what

is reflected in the said statement and we have no reason to disbelieve the complainant in this behalf.

The statement of income would show that Anuradha's gross salary was $1060.72 per week and after

deductions of federal tax, social security tax, her net pay was $814.03 viz. around $3000 per month and

$36000 per year. We have, therefore, no hesitation to hold that the income of the deceased was $30,000 per

annum before her death. Going by the judgment of Sarla Verma v. Delhi Transport Corporation, (2009) 6

SCC 121, we must add 50% to this income for her future prospects. That will bring her average salary income

to $45000 per annum. Having regard to the age of Anuradha i.e. 36 years and keeping in view the multiplier

laid down in the table in the case of Sarla Varma , we must apply the multiplier of 15 in the present case. After

application of the said multiplier, her total income would come to $6,75,000. Having come to the conclusion

that the total anticipated income of Anuradha would have been around $6,75,000, the next question is as to

how much amount the deceased would have spent on herself and how much she would have contributed to her

family. Bearing in mind the cost and standard of living in a country like USA and the income of the

complainant, in our view the deceased would have spent at least half of the said income for her own upkeep

and maintenance. Meaning thereby that she would at best have contributed a sum not exceeding $3,37,500 to

her family/complainant. By applying the average exchange rate of ` 45 against a U.S. dollar, the net amount

would come to ` 1,51,87,500.

On a consideration of the entirety of the facts and circumstances, evidence and material brought on record, we

hold that overall compensation on account of pecuniary and non- pecuniary damages works out to `

1,72,87,500 in the present case.

Jacob Mathew v. State of Punjab, (2005) 6 SCC 1]

In a landmark judgment, the supreme court of India laid down guidelines in cases of alleged negligence against

medical practitioners in India. It clearly stated that there is a need for protecting doctors from frivolous or

unjust prosecution.
In a landmark judgment of the Supreme Court of India the judgment stipulates the guidelines to be followed

before launching a prosecution against a doctor for negligence. On February 15, 1995, the informant's father,

was admitted as a patient in the private ward of a hospital. On February 22, 1995 at about 11 p.m., the patient

felt difficulty in breathing. The complainant's elder brother, who was present in the room, contacted the duty

nurse, who in turn called a doctor to attend to the patient. No doctor turned up for 20-25 minutes. Then doctors

came to the room of the patient. An oxygen cylinder was brought and connected to the mouth of the patient,

but the breathing problem increased further. The patient tried to get up, but the medical staff asked him to

remain in the bed. The oxygen cylinder was found to be empty. There was no other gas cylinder available in

the room. Son of the patient went to the adjoining room and brought a gas cylinder. However, there was no

arrangement to make the gas cylinder functional and meanwhile, 5-7 minutes were wasted. By this time,

another doctor came and declared that the patient was dead. The complaint as per records reads as follows.

“The death of my father has occurred due to the carelessness of doctors and nurses and no availability of

oxygen cylinder and the empty cylinder was fixed on the mouth of my father and his breathing was totally

stopped hence my father died. I sent the dead body of my father to my village for cremation and for

information I have come to you. Suitable action is done.”

On the above said report, an offence under Sections 304-A and 34 of the Indian Penal Code was registered and

investigated. It was submitted before the High Court that there was no specific allegation of any act of

omission or commission against the accused persons in the entire plethora of documents comprising the

challan papers filed by the police against them. The learned single Judge who heard the petition formed an

opinion that the plea raised by the appellant was available to be urged in defense at the trial and therefore, a

case for quashing the charge was not made out. Feeling aggrieved the appellant has filed these appeals by

special leave before the Supreme Court. The Supreme Court gave the Guidelines—regarding prosecuting

medical professionals as follows: 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 the
Indian Penal Code. 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

granted 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 compensated 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 as a tool for pressurizing the medical professional for extracting uncalled for or unjust compensation.

Such malicious proceedings have to be guarded against.

Statutory Rules of Executive Instructions incorporating certain guidelines need to be framed and issued by the

Government of India and/or the State Governments 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 prosecution

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 from a

doctor in Government service qualified in that branch of medical practice who can normally be expected to

give an impartial and unbiased opinion in regard 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 not make himself available to

face the prosecution unless arrested, the arrest may be withheld.

The above judgment gives relief to the medical profession. However, no immunity is conferred—The judges

have left to the Central and State Governments to give rules and regulations, as in India it is a state subject.

These guidelines prescribe opinion from a proper Government doctor before proceeding against a doctor. The

accused doctor can present his defense by obtaining from expert of choice after the case is charge sheeted and

the case comes before the court for examination.

10. CONCLUSION

Negligence, as is true with all legal claims, is comprised of various “elements,” identifiable components which

draw together a cluster of related issues for analysis and resolution. Too often, the elements of negligence are

merely recited and not explained. In formulating the elements here, this Idea can just scratch the surface of each

one, filling each with only elemental content. But the idea of this Idea is quite modest: to identify and explain,

compactly and conjointly, the five elements of negligence, the most important tort. Five is the number of

negligence elements here endorsed, rather than the usual four. The five-element approach permits the division

of the conventional, two-pronged element of “causation” (or “proximate causation”) into its separate

components, cause in fact and proximate cause, in recognition of the distinctness and complexity of issues

embraced by each. Cause in fact requires a determination of cause and effect, which involves a sometimes

rigorous comparison of physical, historical facts in the actual universe with those in a hypothetical universe

from which the defendant’s negligence is removed. Actual causation thus logically precedes and usually has

little to do with the proximate cause inquiry into the array of fairness and justice considerations bearing on the

propriety of imposing negligence responsibility on a person whose wrongdoing actually, though remotely

caused the plaintiff’s harm. Thus, negligence is logically divisible into five elements—duty, breach, causes in

fact, proximate cause, and harm—which usefully may be assembled and explained.
11. BIBLIOGRAPHY

 Dr.R.K Bangia-Law of Torts

 Tort(Winfield and Jolowicz)-W V H Rogers

 The Law Of Torts-Ratanlal and Dhirajlal

 Ramaswamy Iyer’s ‘The Law Of Torts’

 All India Reporter(AIR)

 Supreme Court Cases(SCC)

 www.indiankanoon.com

 Manupatra

 Wikipedia

 JSTOR

 PRS INDIA