PROJECT ON- LAW OF TORTS

TOPIC- NEGLIGENCE

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Synoptical Outline:

· Introduction
· Meaning & Definition
· Essential elements to constitute tort of negligence
· Case laws related to essential elements to constitute tort of negligence
- Smoldon v. Whit Worth & Nolan
- Grant v. Australian Knitting Mills Ltd
- Donoghue v. Stevenson
- Municipal Corporation of Delhi v. Subhagwanti
- Achutrao Haribhau Khodwa v. State of Maharashtra
· Professional Negligence – Negligence in Medical Profession
· Case laws related to Medical Negligence
- Greaves & Co. v. Baynham Meikle & Partners (Professional Negligence)
- Bolam v. Frien Hospital Management Committee
- Lakshmi Rajan v. Malar Hospital
· Critical Analysis of the COVID-19 situation with reference to Medical Negligence
· Conclusion.

INTRODUCTION

The Law of Torts in India find its root in the framework of English Common Law. The word
“tort” has been derived from the Latin word ‘tortum” which denotes twisted or wrongful. The
present-day framework of torts, which is applicable in India has developed over the centuries.
However, its origin can be still traced to the English common law. Thence, the Indian justice
system before administering any principle of law of torts, keeps in mind about suits,
circumstances and the scenario of Indian society. This concept helps in prevailing and balancing
the rules of justice, equality and good conscience in the society.
Negligence is one of the concepts which comes under the preview of the law of torts in India.
The term negligence has a wide meaning and scope; which has been mentioned below in answer.
Medical Negligence with regard to torts has been recently evolved in India. The tort litigation
against medical negligence shows a steady growth from past sometimes. This is because the
people are getting more acquainted about their basic rights and interests. Also, the medical
profession is considered as a noble profession and doctors are personified as gods on earth. And

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a patient approaches a doctor on the belief that they will perform their duty with all the
knowledge and skills that they possess and the doctor owes a duty of care towards its patient and
if he breached that duty and the patient suffers any damage because of his negligence, then the
doctor commits the tortious act of negligence and will be liable to his patients. This duty of care
on behalf of the doctor is one of the essential elements to constitute to tort of negligence. Other
essentials have been listed below in the answer.
The negligence committed by a doctor comes under the scope of Professional negligence i.e.,
negligence committed by professionals who acquires some special skills in that particular field.
The current ongoing COVID pandemic is an inevitable situation that has brought many changes
in the social, economic, political and medical arena. This COVID-19 plight has shaken the entire
world and, in a way, it has paused the entire world. Because of this pandemic, the healthcare
system has faced multifaced challenges. Rich, poor, developed or under developed countries
every country has faced these challenges but with different magnitude and quantum. Hence, in
such a case it is vital to understand the liability of the health care professionals and to what
extent they could be held liable.

MEANING AND DEFINATION

-Definition of negligence:

-Dr. Winfield: “Negligence as a tort is the breach of a legal duty to take care which results in
damage, undesired by the defendant to the plaintiff”.

-Sir Edward Alderson (Baron Alderson): “Negligence is the omission to do something, which a

reasonable man guided upon those considerations, which ordinarily regulate human
affairs, would do or doing something, which a prudent or reasonable man would not do. The
defendants might have been liable for negligence, if, unintentionally, they omitted to do that
which a reasonable person would have done, or did that which a person taking reasonable
precaution would not have done.” – This statement was established in the case of Blyth v.
Birmingham Waterworks Company, since then it has been used as a definition of negligence.

-The meaning of negligence

In common usage, the term negligence means carelessness. In legal terms, it implies, the failure
to take reasonable care or exercise standard of care as supposed from a prudent man should have

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exercised in that situation or circumstances. Therefore, it could be caused by doing an act or by
omitting to do an act.

Or to put it into simpler words – We owe a duty of care to anyone who may be adversely
affected by our acts, when we breach this duty of care imposed on us by law, we commit the tort
of negligence.

-There are two types of liability in a tort of negligence i.e., it could be civil or it could be
criminal. It depends upon the plaintiff as to what kind of remedy he wants. Also, there are two
prevalent theories in negligence, i.e., a subjective theory given by Salmond and the other is a
objective theory propounded by Sir Fredrich Pollock.

ESSENTIAL ELEMENTS TO CONSTITUTE TORT OF NEGLIGENCE

The following are the pre requisite that a plaintiff has to prove to constitute a tort of negligence:

1. The defendant must owe a duty of care towards the plaintiff- The is the most basic condition
of liability for negligence which has to be fulfilled. There are different types of duties that
prevails in our society, for example, social, moral, religious duties are not included in this.
a) Moral Duty – There is no compulsion on part of the defendant to fulfill such duty. Even if this
duty is not discharged, the law cannot impose a liability on the defendant.
For instance- X, a national level swimmer does not save a drowning man from the sea. In this
case it the moral duty of X to save that man and it would be immoral to let him drown. Even
though he does not save him he will not be liable for negligence. Because this is a breach of non-
legal duty.
b) Legal duty – There is a compulsion on part of the defendant to fulfill this duty because it has
been imposed by the law.
For instance (let’s take the same example)- X, is a national level, swimmer and he serve as a
coast guard on one of the beaches. X sees a drowning man and still does not saves him. Here, X
will be liable for his act of negligence. Because the law-imposed duty on X and he breached that
duty.
The following are the cases related to this particular essential:

· In the case of Smoldon v. whit worth & Nolan:

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Facts of the case: The plaintiff, who was a minor (17), suffered some serious physical injuries
while playing in a rugby match. The plaintiff argued that the defendant (Referee) owed a duty of
care towards him and to ensure the enforcement of the laws/rules of the games. So, to make sure
that the players were not exposed to avoidable risk of injury, specially when some of the players
were minors1.

Judgement: The court held that, the defendant owed a duty of care towards the plaintiff and
because of the breach of that duty the plaintiff suffered the injury2.

· In the case of Grant v. Australian Knitting Mills Ltd,

Facts of the case: The plaintiff purchased some pairs of woolen undergarments from a shop. The
plaintiff used those underwear’s and got severe dermatitis. It was found that excess Sulphur
compounds were found on the underwear because of the process of bleaching and shrinking.

Judgement: The court held that the products were not fit for usage and the defendant failed to
perform his duty.
2. Such duty must pass the test of foreseeability: An individual owes a duty to each and every
one who may get affected by his actions. This duty begins as soon as the person can foresee that
someone may get hurt or injured by his actions.

· This has been wonderfully explained by Lord Atkin in the case of Donoghue v.
Stevenson.

Facts of the case: The plaintiff’s friend brought a bottle of ginger-beer for the plaintiff. The
bottle was a dark opaque bottle. And after the plaintiff consumer half of the beer, she found out
the remaining’s of a dead snail from the drink. She bought a case against the manufacturer.
Judgement: The court found the defendant liable of negligence. Lord Atkins explained “the
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”.

1
Rajibhassan. Negligence as A Tort: Meaning Essential And Defences. Legal Service India.
http://www.legalservicesindia.com/article/1297/Negligence-As-A-Tort:-Meaning-Essentials-
2
Ratanlal Ranchhoddas; Thakore. Dhirajlal Kehavlal. The English and Indian Law of Torts. 283-294 (2d ed. 1903)
https://archive.org/details/cu31924021862663/page/n35/mode/2up

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3. Duty to take care – Breached by defendant: The plaintiff has to prove that the defendant failed
to take care or failed perform his duty.

· In the case of Municipal Corporation of Delhi v. Subhagwanti,

Facts of the case: Three persons were died because a clock tower belonging to the Municipal
corporation was collapsed. This tower was situated in the main market of Chandni chowk, Delhi.
After the incident, an inspection was conducted and it was found that the building was very old
and its condition was so deteriorated that the building was reduced to powder without any
cement.
Judgement: The court applied the principle of “Res Ipsa Loquitor”, which means ‘things speaks
for itself’. And found the defendant liable of negligence.
4. The plaintiff must suffer damage due to defendant’s negligence: It is essential that the plaintiff
suffered some kind of damage from the defendants act and it should be foreseeable to a
reasonable man.

· In the case of Achutrao Haribhau Khodwa v. State of Maharashtra,

Facts of the case: In this case, a doctor left a mop on the plaintiff’s abdomen. This led to some
severe difficulties and the plaintiff had to operated twice, but she could not survive.
Judgement: The court applied the principle of “Res Ipsa Loquitor” i.e., ‘things speak for itself’.
The doctor was held liable for the act of his negligence.

PROFESSIONAL NEGLIGENCE- NEGLIGENCE IN MEDICAL PROFESSION.

A doctor owes certain specifies duties and responsibilities towards its patients. Any breach of
this duties would lead to a cause of action for negligence. The professions like doctor, engineers,
lawyers, architects, etc. are considered as professionals because of the reason that they posses
some extra ordinary skills and knowledge which a layman lacks. Any tasks, which is required or
expected to be performed by these professionals, will be generally undertaken to be performed
only when they possesses the requisite skill for performing that task. Any person who
approaches to a particular doctor or hospital generally expects two things, that the doctors and
hospitals are providing the treatment with proper care and caution and they have all the skills and
knowledges required. The second thing that a patient expects is that utmost care will be taken

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and no sort of negligence and recklessness on the behalf of the doctors or the staff will take
place.

These are certain duties which has to be fulfilled by a doctor or a healthcare professional, they
must attend the patient, the healthcare professionals must carry out an invasive research which
needs to be done before beginning with the treatment of the patient. Also, it is the doctor’s duty
to obtain a consent form from the patient unless there is some emergency. The doctor must know
the medical history of the patient or any useful information related to the treatment. The doctor
and the hospitals must discharge this duties and responsibilities or else this amounts to tortious
liability.
For better understanding of the topic, it is vital to see some important cases related to medical
negligence:

· In the case of Greaves & co. v. Baynham Meikle & Partners- This is a landmark case on
professional negligence. However, this is not the case of medical negligence yet, the
observation made by Lord Denning MR in this case is taken as a principle on cases of
professional negligence.

-Facts of the cases- The plaintiff asked the defendant (a consultant engineer) to built a
warehouse. The plaintiff told the defendant that the first floor of the warehouse would be used
for storing oil drums and that would be moved around by fork-lift trucks. After few months of
usage, the floor began to crack but it was not strong enough to bear the weight of loads imposed
on it. The plaintiff bought an action against the defendant.
-Judgement- The defendant was found liable of negligence. It was held that the exchange with a
professional man is such that it gives rise to an unqualified and implied term that the service
asked would be fulfilled and the desired result would be delivered. In this case Lord Denning
MR made following observations: “the law does not usually imply a warranty that he will
achieve the desired result, but only a term that he will use is reasonable care and skill. The
surgeon does not warrant that he will cure the patient nor does the solicitor warrants that he will
win the case.”

· In the case of Bolam v. Frien Hospitable Management Committee,

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-Facts of the case- The plaintiff was undergoing an electro-convulsive therapy for his mental
illness treatment in the defendant’s hospital. There were two divided opinions for the usage of
relaxant drugs which was used during the therapy. Some professionals argued that if the drugs
are given then it may lead to a very small risk of death and if it was not given then it may lead to
small risk of fractures. Both were common practice used for this therapy. The defendant did not
use the relaxant drugs which lead to some fractures to the plaintiff.
-Judgement: The court delivered the judgment in favor of the doctor and held that the doctor
used a common practice and if they carry out the treatment in a different way then others that
would not amount to negligence. The only requirement is that the way of treatment should be in
common practice.

· In the case of Lakshmi Rajan v. Malar Hospital,

-Facts of the case: The plaintiff developed a painful lump in her breast and consulted a doctor
who suggested for a surgery for removal of the lump. However, in place of the lump, the doctor
removed her uterus without any justification
Judgement: The doctor was found negligent and was held liable. The court observed that there
was deficiency in service on part of the doctor.

CRITICAL ANALYSIS OF THE COVID-19 SITUATION WITH REFERENCE TO

MEDICAL NEGLIGENCE.

During this unprecedent situation of COVID 19 the doctors and the other frontline workers have
been like a savior and a guardian to us. The medical community has been working all day and
night to tackle this dreadful situation. Many scientist, doctors, micro biologist have been working
24/7 and trying to make a vaccine or an antidote of this virus. The observation by Lord Denning
MR, could be interpreted in todays situation as, ‘since there is no panacea for the COVID 19, the
doctors cannot assure their patients that they will be fully cured but the doctors should use all the
reasonable care and skills while treating their patients.’

Since the COVID crisis is still going on, there are no such cases to support the answer but the
points mentioned below have been taken from News article and Journals. The following are the
negligence committed by the healthcare professionals.

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 · The issue of Misdiagnosis: Since this is a novel coronavirus, there has been a problem of
diagnostic errors made by the medical professionals. Because of which there has been
complaints of more complications on health. Delayed or wrong treatment has made this
problem worse. Thence, the doctors are required to take due care of their patients and
treat them in a skilled and a competent manner.

· Delay in diagnosis: When a doctor fails to diagnose that particular problem but another
doctor with similar skills and knowledge diagnosed it correctly. Specially during this
situation when there are millions of COVID cases diagnosed regularly. This becomes a
problem because by the time of second diagnosis the health problem has increased and
the chance of survival gets very low.

· Denial to provide medical treatment: When the coronavirus was at its peak in different
countries, the medical infrastructure was so miserable that there was lacks of beds,
doctors, nurses, etc. Which lead to deprivation of treatment for many patients.

· Invasive investigation: The healthcare professionals were required to investigate about

the underlying heath issues of the patients, before treating them. Failing of this
requirement lead to death of many patients.

CONCLUSION

The observation made by Lord Denning MR in the case of Greaves & co. v. Baynham Meikle &
Partners, perfectly matches this COVID 19 crises. The medical community, healthcare
professionals and the frontline workers are giving their best to tackle the situation. Also, this
virus is one of a kind and there is no vaccine or antidote for the same. So, the doctors have to
naturally use all their skills and knowledge to deal with the situation. Some instances of
negligence have been seen on the part of the doctors for which they have to compensate for the
damages. All the professional belonging to different occupation, cannot always deliver the
desired result but it has to be made sure that they used all their skills and reasonable care and
cautions.

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