TORTIOUS LIABILITY: NEGLIGENCE

INTRODUCTION TO NEGLIGENCE AS A TORT

Negligence is derived from the Latin word negligentia, which means ‘failing to pick up’. A person is negligent when the person fails to take care in a situation where he/she ought to. In legal terms, ‘Negligence’ is defined as an act of carelessness which damages the property of a person. The negligence is caused when a person has acted illegally or carelessly.

A person failing to act as expected by him or her either carelessly or intentionally constitutes the act of negligence. Whereas according to the apex court in Jacob Mathew v. State of Punjab [2005 (6) SCC 1], Negligence is the 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 or reasonable man would not do.

Negligence can be characterized in three forms

Nonfeasance: Failing to do what a person should have done. e.g. failing to carry out repairs in a building when they should have been done.

Misfeasance: Doing an act improperly where the action should have been done properly. e.g. carrying out repairs in the building but using poor quality materials so they give way hurting the person.

Malfeasance: Doing something where a person should not be doing it, e.g. using combustible prohibited substances in carrying out the repairs thereby making the building a firetrap.

There are four basic elements that the person who has been injured i.e., Plaintiff has to prove against the person who has caused the injury i.e., defendant to show that he acted negligently.

1. Duty: A legal duty to exercise reasonable due care on the part of the party complained of towards the party complaining the former’s conduct within the scope of the duty.
2. Breach of the said Duty: means that the person caused damage never had the knowledge about the outcome of his actions. Whether the defendant has acted like a ‘reasonable prudent person’ in the given circumstances.
3. Causation: In order to prove negligence on the part of the defendant, it is important for the plaintiff to prove that the defendant has caused an injury.
4. Consequential Damages: And if there is an act of negligence from defendant which has resulted in the injury of plaintiff then the court is bound to compensate the plaintiff.

HISTORY OF NEGLIGENCE

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 until the eighteenth century. The concept of negligence passed from Great Britain to the United States as each state adopted the common law of Great Britain Although there have been important developments in negligence law, the basic concepts have remained the same since the eighteenth century.

In India when Indian Penal Code, 1860 came into existence there was no such provision which gave punishment for causing death by negligence or failure of the act. At that time negligence was nowhere defined in IPC but fall outside the offenses ranging from Section 299 and 300 of IPC. But in the year 1870, an amendment was made in IPC which inserted a new provision Section 304A. It states that: Causing death by negligence

“Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”

In order to apply Section 304A of IPC, it is necessary to prove that there was no intention on the part of the defendant and the act done would result in causing death to the plaintiff. Also, it is important to know the difference between rash and negligence in order to decide a particular case.

DIFFERENCE BETWEEN RASH AND NEGLIGENT ACT

Serial No.	Rash	Negligent Act
1.	Rash is Primarily over hasty act, it is opposed to a deliberate act.	Negligence is a breach of the duty imposed by law.
2.	Rashness means doing an act with the consequences of a risk that evil consequences will follow but with the hope that they will not happen.	Negligence is 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.
3.	Rashness is done without deliberation and caution.	In negligence, defendant has caused injury to the plaintiff or his property.
4.	The act of rashness is generally a criminal act depending upon the recklessness.	The act of negligence can be civil or criminal depending on the nature and gravity of the offense.

EXAMPLES OF NEGLIGENCE

Criminal Negligence

• A person who drives 40 miles over the speed limit in a really dangerous way and who causes a car accident and injures someone could be charged with criminal negligence.
• A person who breaks texting-and-driving laws and who is typing a text message when he or she gets into a car accident and kills someone could be considered criminally negligent.
• A nurse in a nursing home who forgets to feed a patient who needs help to eat, causing the patient to starve to death, could be considered criminally negligent.
• A doctor who prescribes addictive drugs to a known drug addict because the doctor gets paid for his or her services could be considered criminally negligent.

Civil Negligence

• Property owners who let steps to their house crumble and leave a railing unrepaired could be considered negligent if they invite friends over to their house and their friends trip on the railing and steps and hurt themselves.
• A restaurant owner who mops the slippery floor and doesn’t put up a “Wet Floor” sign could be considered negligent.
• A doctor who operates on the wrong patient or on the wrong body part because he or she misreads the chart could be considered negligent.
• A person who owns a dog that he knows is dangerous and who takes the dog to the park where the dog bites a small child could be considered negligent.
• A lawyer who doesn’t really know how to prosecute a case but who takes the case anyway and doesn’t adequately represent the client can be considered to be liable for professional negligence.

NEGLIGENCE AS A TORT AND AS A CRIME

The term ‘negligence’ is used for the purpose of fastening the defendant with liability under the Civil Law (torts) and, at times, under the Criminal Law. Generally speaking, it is the number of damages incurred which is determinative of the extent of liability in tort; but in criminal law, it is not the number of damages but the amount and degree of the negligence that is determinative of liability.

The act of negligence can be civil and criminal. In civil negligence, if the act of defendant resulted in the injury of the plaintiff, the defendant is liable to compensate. But what happens when a person has acted negligently which has resulted in a death of a person.

For instance, in a case of drinking and driving if a person kills someone on the road, then the person is criminally liable and can be sued. They are criminally liable because the death of a person is a crime so driving and drinking will also be a crime. But the essential ingredient of mens rea cannot be excluded from consideration when the charge in a criminal court consists of criminal negligence.

MEDICAL NEGLIGENCE AND LIABILITY

Medical negligence is a subspecies of this tort i.e., civil wrong which falls within the larger species of professional negligence. This concept was drawn from the apex court’s decision. Medical negligence is professional negligence by act or omission by a health care provider in which the treatment provided falls below the accepted standard of practice in the medical community and causes injury or death to the patient, with most cases involving medical error. Persons who offer medical advice and treatment implicitly state and undertake to have the skill and knowledge to do as under:

• To undertake the particular job.
• To decide whether to take a case or not,
• To decide the treatment suitable for particular case
• To administer that treatment.

This is known as an “implied undertaking” on the part of a medical professional.

However, no human being is perfect and even the most renowned specialist could make a mistake in detecting or diagnosing the true nature of a disease. The medical profession is one of the oldest professions of the world and is the most humanitarian one. Inherent in the concept of any profession is a code of conduct, containing the basic ethics that underline the moral values that govern professional practice and is aimed at upholding its dignity.

Medical negligence and malpractices by doctors were the grey areas in health care where legal issues operated. However, a doctor can be held liable for negligence only if one can prove that she/ he is guilty of a failure that no doctor with ordinary skills would be guilty of if acting with reasonable care.

DEFENSES IN NEGLIGENCE

If the action of a person has resulted in a death of a person, then the defense that can be taken as:

Contributory negligence: It is the Common law rule that anyone who by his own negligence contributed to the injury of which he complains cannot maintain an action against another in respect of it. Because he will be considered by law to be the author of his wrong.

An Act of God: If there is injury or death of a person caused due to any natural disaster, then the person will not be liable if he or she proofs the same in the court. This particular defense was talked in Nichols v. Marsland [ [1876] 2 Ex D 1]: where the defendant had series of artificial lakes on his land in the construction or maintenance of which there had been no negligence. Due to the heavy rain, some of the reservoirs burst and carried away four country bridges. The court held that the defendant was not liable as the water escaped by the act of God.

Inevitable Accident: Inevitable accident also works as a defense of negligence. An inevitable accident is that which could not possibly, be prevented by the exercise of ordinary care, caution, and skill. it means accident physically unavoidable.

In the case of Brown v. Kendal [60 Mass. 292 (1850)]: the plaintiff’s and defendant dogs were fighting. As the defendant was trying to remove them separately, he accidentally hit the plaintiff in his eye. The injury of the plaintiff was held to result in an inevitable accident.

WHAT TO DO IN THE CASE OF NEGLIGENCE

If anyone’s right is infringed or there is the death of a person due to someone’s negligence act, then any person can file a complaint by following the procedure Code of Criminal Procedure (CrPC), 1973.

FIR (First information report): An FIR will be filed under section 154 of CrPC with police at the police station. The copy of FIR will be provided to the informant at free of cost provided by the State Government.

Vakalatnama: An informant who has filed an FIR will file a Vakalatnama where he/she will have to present in front of a court.

Investigation: The police will start its investigation under section 156 of CrPC, Police will collect all the evidence and will seal the place where the crime has been committed.

Charge sheet: When an investigation is over the police will file a charge sheet under section 173 of CrPC. The police will also frame charges before submitting the charge sheet to court.

Inquiry: Inquiry is defined under section 2(g) of CrPC which other than trial. It will commence in front of a Magistrate or Court. The inquiry is going to the statement will be recorded under section 164 of CrPC, where the accused will be required to say whether he feels he is guilty or not and he can admit guilty. The main motive of inquiry is to determine whether an innocent is guilty or not.

Trial: When the inquiry is over the trial process will starts. The trial is not defined under CrPC. Trail means judicial proceedings where pieces of evidence are allowed to be proved or disapproved, and guilty of a person is adjudged leading to acquittal or conviction.

Arguments: Both the lawyers of plaintiff and defendant put forth their arguments for the determination of the guilt of the accused.

Judgment: After hearing both sides’ arguments and after the examination of witness the court decides whether the person has caused the death negligently or not.

IF HELD GUILTY OF NEGLIGENCE

If a person has been proven guilty by the court for causing death by negligence, then the person will be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Punishment for different negligence.

REFERENCES

1. Ratanlal and Dhirajlal, Law of Torts (27^th edition), Lexis Nexis Publication.
2. R.K Bangia, Law of Torts, Allahabad Law Agency.
3. Kenneth W Simons, Dimensions of Negligence in Criminal and Tort Law.
4. The Law Dictionary, available at https://thelawdictionary.org/article/three-unique-differences-criminal-negligence-civil-negligence/
5. RajiBhassan, Negligence as a Tort, Legal Services India, http://www.legalservicesindia.com/article/article/negligence-as-a-tort-meaning-essentials-and-defences-1297-1.html
6. Your Dictionary, http://examples.yourdictionary.com/examples-of-negligence.html

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– Subham Saurabh

Content Writer @ Legal Bites

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Related Links

1) MEDICAL NEGLIGENCE – A BANE

2) Negligence – Definition, Essentials and Contributory Negligence

3) Medical and Professional Negligence

4) Contributory and Composite Negligence