CHANAKYA NATIONAL LAW

UNIVERSITY

Project Report
On
Duty of Care in Cases of Negligence
(Law of Torts)

Submitted to: Submitted by:

Sushmita Singh Pratiyush Kumar
(Faculty: Law of Torts) Roll No: 1750
Course: B.A.LLB

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 TABLE OF CONTENTS
S.No Topic Page No.
Research Methodology
a) Method of Research
1 b) Sources of Data
c) Method of Writing 4-5
d) Research Questions
e) Hypothesis
f) Review of literature

2 Introduction 6
4 Modes of committing negligence
a) Malfeasance 7
b) Misfeasance and,
c) Nonfeasance

5 Development of general duty of care

a) Case 4.1 : Winterbottom vs. Wright
b) Case 4.2 : Heaven vs. Pender 8
c) Case 4.3 : Donoghue vs. Stevenson
d) Case 4.4 : Jacob Mathew vs. state of Punjab

6 Essentials of negligence
a) Two approaches of Negligence
b) Duty of Care 11
c) Breach of Duty of Care Breached
d) Resulting damage

7 Negligence and its types

a) Contributory 14
b) Composite

8 Landmark cases related to negligence and legal maxims

a) Case 7.1 : Glasgow vs. Taylor
b) Case 7.2 : Bolton vs. stone 16
c) Case 7.3 : Wagon mound case
d) Case 7.4 : Scott vs. shepherd
e) Case 7.5: Byrne vs. Boadle

9 Standard of Care Along With Magnitude Of Risk And Determination Of Negligence

a) Standard Of Care 18
b) Magnitude of risk involved
c) Determination of Negligence

10 Medical negligence and nervous shock 19

11 Conclusion and Suggestions 22
12 Bibliography 23
 ACKNOWLEDGEMENT
The present project on the” Duty of care in cases of negligence” has been able to get its final
shape with the support and help of people from various quarters. My sincere thanks go to all the
members without whom the study could not have come to its present state. I am proud to
acknowledge gratitude to the individuals during my study and without whom the study may not
be completed. I have taken this opportunity to thank those who genuinely helped me.

With immense pleasure, I express my deepest sense of gratitude to Mrs. Sushmita Singh.,
Faculty for law of Torts, Chanakya National Law University for helping me in my project. I am
also thankful to the whole Chanakya National Law University family that provided me all the
material I required for the project. Not to forget thanking to my parents without the co-operation
of which completion of this project would not had been possible.

I have made every effort to acknowledge credits, but I apologies in advance for any omission
that may have inadvertently taken place.

Last but not least I would like to thank Almighty whose blessing helped me to complete the
project.

Name : Pratiyush Kumar

Roll No. : 1750, 1st semester
Stream : B.A.LLB

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 RESEARCH METHODOLOGY
Method of Research
The researcher has adopted a purely doctrinal method of research. The researcher has made
extensive use of the library at the Chanakya National Law University and also the internet
sources.

Sources of Data

The following secondary sources of data have been used in the project-

1. Cases
2. Books
3. Internet

Method of Writing

The method of writing followed in the course of this research paper is primarily analytical.

Research Questions

The researcher has formulated following research questions:

1. What is negligence?
2. What are the elements of negligence?
3. How breach of legal duty of care leads to the tort of negligence?
4. How did Development of general duty of care take place?
5. Landmark cases and legal maxims related to negligence.
6. What is the degree of duty of care in cases of medical negligence and nervous shock?

Hypothesis

Before proceeding for this research paper the research had following hypothesis:

1. Duty of care is directly proportional to the magnitude of risk involved.

 2. The concept of Duty of care is applicable only when it qualifies the test known as “Test
of Reasonable Foresight”.

Review Of Literature

1. Bangia R.K., Law of Torts

This book deals with the general concepts defining the ambits and limitations of the project. It further
gives a proper insight to the various case laws. It discusses the nature and scope of basic concepts to tort.
It distinguishes between tort and crime, and tort and other civil wrongs. The essentials of law of torts can
be easily understood by studying this book.

2. Singh Avtar and Kaur Harpreet , Introduction to the Law of Torts and Consumer
Protection”

The book has been conceived and brought forth as a short text-material for guidance of students
as also for any member of the general public who is interested in having a casual acquaintance
with this fascinating branch of law. It is a remedial subject. The courts are ready to mould it to
provide remedy to any injured person particularly where there is no statutory coverage. It is one
subject which is approximating the law to the legal ideal that wherever there is a wrong there
must be a remedy. Every injured person is looking for a remedy. To him it would seem that the
whole colossal legal system is a failure if his injury remains unredressed. Nothing is capable of
bringing about more social satisfaction and thereby promoting more general public happiness
than the care shown to aggrieved persons. The law of torts being a general caretaker of social
wrongs, its knowledge is important not only to students, but also to the general public

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INTRODUCTION

Negligence Comes From the Latin Word negligentia, literally meaning “failing to pick up”. A
person is negligent when the person fails to take care in a situation where she/he ought to. It may
involve something as simple as forgetting to put a caution sign on a wet floor to something
dangerous and life threatening as administering wrong treatment to a terminal patient.

Negligence in its legal sense means a failure in law to do what a reasonable person would have
done in the circumstances. To establish liability a plaintiff must first establish that the defendant
owed a duty of care towards the plaintiff. Over a period of years the law has established the
requirement that people should conduct their affairs to the standard required of the reasonable
person.

Before a plaintiff can recover compensation from a defendant in a negligence action, the plaintiff
must show three things:

 That the defendant owed the plaintiff a duty of care;

 That the defendant breached that duty of care; and
 Personal injury or property damage suffered by the plaintiff as a result of that breach
(causation).

NEGLIGENCE can be defined as “A Conduct that falls below the standard established by
law for the protection of others against unreasonable risk of harm”.
To be negligent is to act, or fail to act, in a way that causes injury to another person. But no one's
perfect and accidents happen to the best of us. What separates a common accident from an act of
negligence, however, is the "standard of care" required in a given situation. By neglecting the
proper standard of care for a given situation, an individual may be found liable for any resulting
injuries.

Any negligent act can be a combination of commission and omission and at the same time a
combination of non feasance, misfeasance, and malfeasance. Negligence begins at the point of
failure of doing a legal duty, which is the essence of torts
MODES OF COMMITTING NEGLIGENCE1

 Non feasance: 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. Nonfeasance is a term used in
Tort Law to describe inaction that allows or results in harm to a person or to property. An
act of nonfeasance can result in liability if
(1) The actor owed a duty of care toward the injured person,
(2) The actor failed to act on that duty, and
(3) The failure to act resulted in injury.

 Misfeasance: Doing an act improperly where the act should have been properly. e.g.
carrying out repairs in the building but using poor quality materials so they give way
hurting the person. The term ‘misfeasance’ is applicable to improper performance of
some lawful act for example where there is negligence. Generally, a civil defendant will
be liable for misfeasance if the defendant owed a duty of care toward the plaintiff, the
defendant breached that duty of care by improperly performing a legal act, and the
improper performance resulted in harm to the plaintiff.

 .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. “ Malfeasance has been defined by appellate courts in other jurisdictions as a
wrongful act which the actor has no legal right to do; as any wrongful conduct which
affects, interrupts or interferes with the performance of official duty; as an act for which
there is no authority or warrant of law; as an act which a person ought not to do; as an act
which is wholly wrongful and unlawful; as that which an officer has no authority to do
and is positively wrong or unlawful; and as the unjust performance of some act which the
party performing it has no right, or has contracted not, to do.

1
Paul, ankita ‘malfeasance, misfeasance and nonfeasance in tort law; Noida (law articles) 2012, September 08. Last
retrieved 30 September 11:59 pm

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DEVELOPMENT OF GENERAL DUTY OF CARE

At common law, duties were formerly limited to those with whom one was in privity one way or
another, as exemplified by cases like Winterbottom vs. Wright (1842). In the early 20th
century, judges began to recognize that the cold realities of the Second Industrial Revolution (in
which end users were frequently several parties removed from the original manufacturer) implied
that enforcing the privity requirement against hapless consumers had harsh results in
many product liability cases. The idea of a general duty of care that runs to all who could be
foreseeably affected by one's conduct (accompanied by the demolishing of the privity barrier)
first appeared in the judgment of Master of the Rolls, in Heaven v Pender (1883). Although
Brett's formulation was rejected by the rest of the court, similar formulations later appeared in
the landmark cases in the UK, in Donoghue v Stevenson (1932). The case of Donoghue was
product liability cases, and it expressly acknowledged and cited Brett's analysis as their
inspiration.

Winterbottom vs. wright2:

The plaintiff Winterbottom had been contracted by the Postmaster-General to drive a mail coach
supplied by the Postmaster. The defendant Wright had been contracted by the Postmaster to
maintain the coach in a safe state. The coach collapsed while Winterbottom was driving and he
was injured. He claimed that Wright had "negligently conducted himself, and so utterly
disregarded his aforesaid contract and so wholly and negligently failed to perform his duty in this
behalf. In Winterbottom vs. Wright, the court held that the plaintiff had no redress. The
principle of Winterbottom meant that consumers who were injured by defective products in the
19th century had no legal action against the defective execution of a contract to which they were
not expressly privy.

2
Palmer,v.(1983)”why privity entered tort-an historical reexamination of winterbottom v wright. ”American
journal of legal history.27(1):85-98
Heaven v. Pender3:

The case occurred when an owner of a dry dock supplied ropes that supported a stage slung over
the side of a ship. The stage failed because the supplied ropes had been previously burned.

The failure of the stage injured an employee of an independent contractor working in the dry
dock. The dry dock owner, the defendant, had failed in his duty of care to give reasonably careful
attention to the condition of the ropes, prior to employing them to hold up the stage. The
defendant was found liable.

House of Lords
The House of Lords was content to decide the case on the basis a duty of care was owed by an
occupier of land (the owner of the dry dock) to invitees (the employees of the contractor who
were on the site to the economic benefit ultimately of the dry dock owner.

Donoghue Vs. Stevenson4: concept of neighbour

It created the modern concept of negligence, by setting out general principles whereby one
person would owe a duty of care to another person.

Also known as the "Paisley snail" or "snail in the bottle" case, the facts involved Mrs Donoghue
drinking a bottle of ginger beer in a café in Paisley, Renfrewshire. A dead snail was in the bottle,
he fell ill, and she sued the ginger beer manufacturer, Mr. Stevenson. The House of Lords held
that the manufacturer owed a duty of care to her, which was breached, because it was reasonably
foreseeable that failure to ensure the product's safety would lead to harm of consumers.

Lord Atkin from house of lord gave his judgement on the basis of neighbour principle, that
people must take reasonable care not to injure others who could foreseeably be affected by their
action .The court said that a neighbour is a person who we must keep in mind before we
undertake an action. When a manufacture conceives a product, he makes it with the end
intention and it to sell in the market to a consumer .thus the consumer plays in the mind of
the manufacturer and it must keep in mind the consumer, the neighbour in this situation.

3
(1883) 11 Q .B. D. 503
4
Grants v Australian knitting mills, (1936) A.C. I, 35; Nicholl v. Ely Beet sugar Factory Ltd., (1936) Ch. 343 , 351.

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Therefore knowing that its actions would affect the consumer it would be liable to him. The
plaintiff could therefore recover damages.

Jacob Mathew v state of Punjab5 was another leading case which assigned various meanings
to the tort of negligence. According to this case Negligence is the breach of a duty caused by the
omission to do something which a reasonable man, guided by those considerations which
ordinarily reflect the conduct of human affairs would do or doing something which a prudent or
reasonable man would not do. Actionable negligence consist in the neglect of the use of ordinary
care or skill towards a person to whom the defendant owes the duty of observing ordinary care
and skill, by which neglect the plaintiff has suffered injury to his person or property.

Distinguishing between Negligence as a tort and as a crime, the Apex court in this case observed
that “To fasten liability in criminal law, the degree of negligence has to be higher than that of
negligence enough to fasten liability for damages in civil law. The essential ingredient of
mensrea cannot be excluded from consideration when the charge in a criminal court consist of
criminal negligence”.

5
Ibid ,quoting Ratanlal and Dhirajlal, Law of Torts , 2002, 441-442., A.I.R. 2005 S.C. 3180
ESSENTIALS OF NEGLIGENCE
Two approaches to compute in negligence6 :
a) The test of directness: The test of directness states that when a person commits a
negligent act, the same act, or other offspring acts and either of them cause damage a
person is responsible for such directness as he caused the principal or the originating act.
b) The approach of reasonable foresight: The modern approach of negligence is
understood as follows-Negligence constitutes a breach of duty imposed by law where
such duty owed where the person so responsible is liable for such reasonable foreseeable
damage which would ensue.

When broken down it requires 3 elements:

1. There must exist a duty of care:

There is a large spectrum of duties imposed on us whether they are moral, personal or
religious. The law however does not concern with it. It looks for the existence of legal duty
of care. It is mainly of three kinds –General duty of care owed to the world at large, a
professional relationship which imposes a duty of care like doctors and patients, relationship
owed to our neighbors.

What is a duty of care?

A duty of care is a legal obligation to avoid causing harm and arises where harm is
‘reasonably foreseeable’ if care is not taken. There must be a sufficient relationship of
closeness (sometimes referred to as ‘proximity’) between the two people in order for a duty
of care to exist. An example of such a relationship would be a doctor and patient relationship
or the relationship between drivers and other road users. Duty of care may be considered a
formalization of the social contract, the implicit responsibilities held by individuals
towards others within society. It is not a requirement that a duty of care be defined by law,
though it will often develop through the jurisprudence of common law.

6
Calabresi, Guido and Klevorick, Alvin K., "Four Tests for Liability in Torts" (1985). Faculty Scholarship Series. Paper
3744.

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2. Breach of such duty:

In order to establish whether a duty of care has been breached the court will look first of
all at the standard of care that is expected in the circumstances. The breach must not be
one of Damnum sine Injuria i.e. (damage without legal injury) but should be one of
Injuria sine damno i.e(legal injury without damage).

The standard of care is determined by looking at what a reasonable person would

have done (or not done) in the same circumstances. Where a defendant has acted in an
unreasonable way or their actions fell well below the standard expected they will be
found to have breached their duty of care.

The most common examples are those that apply to everyday activities such as driving.
All road users (including pedestrians) are expected to behave according to what is
reasonable

Determining Whether There Was a Duty to act:

Typically, if the defendant had a duty to act, did not act (resulting in a breach), and that
breach caused an injury, then the defendant's actions will be classified as misfeasance.
There are several ways to determine whether the defendant had a duty to act or not.

a) The defendant engaged in the creation of the risk which resulted in the plaintiff's
harm

b) Voluntary undertaking: The defendant volunteered to protect the plaintiff from

harm

c) Knowledge: The defendant knows/should know that his conduct will harm the
plaintiff

d) Business/voluntary relationships: ex: business owner and customer; innkeeper and

guest; land possessor who opens her land to the public; person who voluntarily
takes custody of another person

3. Resulting damage:
The damage occurred as a breach of legal duty of care must be a legal damage i.e.
plaintiffs legal right must be violated owing to a breach of legal duty of care by the
defendant. The requirement of pecuniary loss can be shown in a number of ways. A
 plaintiff who is physically injured by allegedly negligent conduct may show that he had
to pay a medical bill. If his property is damaged, he could show the income lost because
he could not use it, the cost to repair it, although he could only recover for one of these
things.

The damage may be physical, purely economic, both physical and economic (loss of
earnings following a personal injury, or reputational (in a defamation case). Negligence is
different in that the plaintiff must prove his loss, and a particular kind of loss, to recover.

In some cases, a defendant may not dispute the loss, but the requirement is significant in
cases where a defendant cannot deny his negligence, but the plaintiff suffered no loss as a
result. If the plaintiff can prove pecuniary loss, then he can also obtain damages for non-
pecuniary injuries, such as emotional distress

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NEGLIGENCE AND ITS TYPE
.

TYPES OF NEGLIGENCE:

1. Contributory negligence7: It so happens in certain cases that the defendant alone is not
liable but the plaintiff may have also contributed to his injury. The classic case is sitting
on top of the bus while driver drives negligently. The plaintiff therefore puts himself in a
position where he may be harmed as well. This is called contributory negligence.
8
In case of Municipal corpn. V Laxman Iyer the apex court
held that –where an accident is due to the negligence of both parties, substantially there
would be contributory negligence and both would be blamed.

Doctrine of Last opportunity: In cases where contributory negligence is attracted

another rule is attracted, the doctrine of last opportunity. It states that where exists a
situation likely to injure the person who has the last opportunity to avoid the injury, the
last such person will be the person who will be responsible.

Case of Butterfied v. Forrester:9

The defendant negligently left a pole across the highway. Plaintiff was riding in town and
there was just enough light left to discern the obstruction within 100 yards. Plaintiff who was
driving carelessly did not notice the pole and met with an accident. A witness testified that if
Plaintiff had not been riding very hard he might have observed and avoided the pole. Plaintiff
sued Defendant for negligence. The trial court directed the jury that if Plaintiff was riding along
the street extremely hard, and without ordinary care, they should find a verdict for Defendant.
The jury returned a verdict for Defendant and Plaintiff appealed.

2. Composite negligence:
When two or more people commit a tort where each has a part to play it is called composite
negligence. In contributory negligence the plaintiff commits some negligence towards

7
See Municipal corpn. Of greater Bombay v. Laxman Iyer, A.I.R. 2003 SC 4182
8
Ibid
9
Henderson, J.A. et al. The Torts Process, Seventh Edition. Aspen Publishers, New York, NY: 2007, p. 359
 himself, which mitigates the liability of the defendant; in composite negligence two or more
defendants are jointly liable to the plaintiff.

Case: Karnataka State Road Transport Corporation v. Krishnan10:

In this case two passenger buses brushed each other in such a way that the left hands of two
passengers travelling in one of these buses where cut off below the shoulder joint. It was held
that the present cases are clearly cases of composite negligence. Hence both the drivers are
jointly and severally liable to pay the compensation.11

10
A.I.R. 1981 Kant. 11.
11
Ibid., at 13.

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LANDMARK CASES RELATED TO NEGLIGENCE

CASE:

1. Glasgow v. Taylor
The defendants owned the Botanic Gardens of Glasgow, a park which was open to the
public. On the park various botanic plants and shrubs grew. A boy of seven years ate
some berries from one of the shrubs. The berries were poisonous and the boy died. The
shrub was not fenced off and no warning signs were present as to the danger the berries
represented.
Held:
Glasgow Corporation was liable. Children were entitled to go onto the land. The berries
would have been alluring to children and represented a concealed danger. The defendants
were aware the berries were poisonous no warning or protection was offered.

2. Bolton v. stone12
A batsman hit a ball which flew much beyond than the boundaries of highly fenced
stadium to hit the plaintiff standing more than 100 yards from the pitch. The court held
that it was highly unlikely that such an injury could be foreseen and the level of such risk
was very less and therefore the likelihood of injury was lesser in this case.

3. Wagon mound case13:

Overseas Tankship had a ship, the Wagon Mound, docked in Sydney Harbour in October
1951. The crew had carelessly allowed furnace oil (also referred to as Bunker oil) to leak
from their ship. The oil drifted under a wharf thickly coating the water and the shore
where other ships were being repaired. Hot metal produced by welders using
oxyacetylene torches on the respondent's timber wharf (Mort's Dock) at Sheerlegs Wharf
fell on floating cotton waste which ignited the oil on the water. The wharf and ships
moored there sustained substantial fire damage. In an action by Mort's Dock for damages

12
(1951) A.C. 850;Also see Hilder v. Associated Portland cement Manufacturers Ltd, (1951) 1 W.L.R 1434 , Where
the likelihood of injury to passer-by was greater in Bolton v. Stone and that made the defendant liable.
13
(1961) A.C. 388; (1961) 1 All. E.R.404 (P.C).
 for negligence it was found as a fact that the defendants did not know and could not
reasonably have been expected to know that the oil was capable of being set alight when
spread on water. The dock owners knew the oil was there, and continued to use welders
The Privy Council found in favour of the defendant. The council found that even though
the crew were careless and breached their duty of care, the resulting extensive damage by
fire was not foreseeable by a reasonable person, although the minor damage of oil on
metal on the slipway would have been foreseeable.
4. Scott v. shepherd.14
Shepherd tossed a squib into a crowded market in the town of Melbourne Port in
Somerset, where it landed on the table of a gingerbread merchant named Yates. Willis, a
bystander, grabbed the squib and threw it across the market to protect himself and the
gingerbread. Unfortunately, the squib landed in the goods of another merchant named
Ryal. Ryal immediately grabbed the squib and tossed it away, accidentally hitting Scott
in the face just as the squib exploded. The explosion put out one of Scott's eyes.
The court held that although there was no direction between the act and harm caused but
the person only got injured by the reason that the firecracker was thrown by the defendant
in the crowd.
5. Byrne v. Boadle
The plaintiff was walking in a public street past the defendant’s shop when a barrel of
flour fell upon him from a window above the shop, and seriously injured him. There was
no other occupant in the building. Though no one saw anyone push the barrel onto the
plaintiff, but the judge observed that barrel could not have by itself rolled and fallen on
the plaintiff, and it only rolled because of someone’s negligence on the part of the
handlers of the warehouse. Thus this was a case of RES IPSA LOQUITOR.

Doctrine of Res Ipsa loquitor

With all torts including negligence, the burned of proof exists on the plaintiff to show
that the tort with committed by the defendant and that there has been some legal injury. This
doctrine means” things speak unto themselves”.

14
Epstein, Richard (2008). Cases and Materials on Torts. New York: Aspen Publishers. p. 115.

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STANDARD OF CARE ALONG WITH MAGNITUDE OF RISK
AND DETERMINATION OF NEGLIGENCE
Standard of care:
The standard of care is seen as a quantum of care and diligence a person must take before
understanding a particular task as a reasonable person. So long a person takes a reasonable
amount of caution and care while doing a task it would not amount to a tort.

In case of professionals, the standard of care is judged as per the members of the
profession. e.g. when a motorcycle driver lands in an accident with his pillion rider for no fault
of his, his care extends to giving first aid, but when an injured person is brought to a hospital the
standard of care to be exercised by the doctor shall be far more .The more senior the level of the
doctor the more amount of care he is supposed to exercise.

Magnitude of risk involved15

Where the task is more risky and more is the inherent danger in a fact situation and more
is the level of care and caution which needs to be exercised. At the same time when it is a
mundane everyday activity, the level of care to be exercised will come down immensely

Determining Whether There Was an Injury

Typically in order to meet the injury element of the prima facie case, the injury must be one of
two things: bodily harm, harm to property.

Pure economic loss will usually not meet the injury requirement. Sometimes emotional
distress/harm may meet the bodily harm requirement (even if there is no accompanying physical
harm). Damages place a monetary value on the harm done, following the principle of restitutio
in integrum (Latin for "restoration to the original condition"). Thus, for most purposes
connected with the quantification of damages, the degree of culpability in the breach of the duty
of care is irrelevant. Once the breach of the duty is established, the only requirement is to
compensate the victim.

15
Glasgow corporation v. Muir (1943), A . C. 448, at 456; (1943) 2 All E.R. 44, at 48, per lord Macmillan.
MEDICAL NEGLIGENCE AND NERVOUS SHOCK

Nervous Shock

In English law, a nervous shock is a psychiatric illness or injury inflicted upon a person by
intentional or negligent actions or omissions of another. Often it is a psychiatric disorder
triggered by witnessing an accident, for example an injury caused to one's parents or spouse.
Although the term "nervous shock" has been described as "inaccurate" and "misleading" it
continues to be applied as a useful abbreviation for a complex concept. The possibility of
recovering damages for nervous shock, particularly caused by negligence, is strongly limited in
English law. There are 3 conditions of nervous shock:

 There must be a shocking event.

 There must be a close and proximate relationship between the primary and secondary
victim.
 The person causing the shocking event must possess either specific intent or constructive
intent i.e. must reasonably have foreseen that his act could be of shocking nature which
resulted in any psychiatric injury.

White v Chief Constable of the South Yorkshire Police:

It was a 1998 case in English tort law in which police officers who were present in the aftermath
of the Hillsborough disaster sued for post-traumatic stress disorder. The claim was rejected by
the House of Lords on the basis that none of the claimants could be considered "primary victims"
"since none of them were at any time exposed to personal danger nor reasonably believed
themselves to be so"

Medical negligence

Medical Negligence basically is the misconduct by a medical practitioner or doctor by not

providing enough care resulting in breach of their duties and harming the patients which are their
consumers. A professional is deemed to be an expert in that field at least; a patient getting treated
under any doctor surely expects to get healed and at least expects the doctor to be careful while

19 | a g e
performing his duties. Medical negligence has caused many deaths as well as adverse results to
the patient’s health .Medical negligence also known as medical malpractice is improper,
unskilled, or negligent treatment of a patient by a physician, dentist, nurse, pharmacist, or other
health care professional. Medical malpractice occurs when a health-care provider strays from the
recognized “standard of care” in the treatment of a patient. The “standard of care” is defined as
what a reasonably prudent medical provider would or would not have done under the same or
similar circumstances.
It is well accepted that in the cases of gross medical negligence the principle of res ipso loquitur
is to be applied. The principle of res ipso loquitur is said to be essentially an evidential principle
and the said principle is intended to assist the claimant. Res Ipso loquitur means things speaks
for itself; while deciding the liability of the doctor it has to be well established that the
negligence pointed out should be a breach in due care which an ordinary practitioner would have
been able to keep. Latin for “the thing speaks for itself,” a doctrine of law that one is presumed
to be negligent if he/she/it had exclusive control of whatever caused the injury even though there
is no specific evidence of an act of negligence, and without negligence the accident would not
have happened. A doctor is not an insurer for the patient, inability to cure the patient would not
amount to negligence but carelessness resulting in adverse condition of the patient would.

CASE:

Kunal Saha Vs AMRI (Advanced Medical Research institute) famously known as

Anuradha Saha Case.16

In this case was filed in 1998 with the allegation of medical negligence on Kolkata based AMRI
Hospital and three doctors namely Dr. Sukumar Mukherjee, Dr. Baidyanath Halder and Dr.
Balram Prasad. In simple layman term, the wife was suffering from drug allergy and the doctors
were negligent in prescribing medicine which further aggravated the condition of patient and
finally led to death. In brief this was the facts and circumstances of the case, in this case the final
verdict was given by the Supreme court on 24th October 2013 and a compensation of around
6.08 crore for the death of his wife.

Aparna Dutta vs. Apollo Hospital Enterprises Ltd., Madras17.

16
Kumar, Sunil, important cases on medical negligence; Patna of CNLU, Dec 11, 2014.
Due to the negligence of the doctor abdomen pack was left behind in the abdomen during the
surgery. As a result of which she had developed she had developed a painful lump. Doctrine of
Res ipsa loquitor was applied in this case. Therefore the degree of care required by professionals
is directly proportional to amount of risk involved.
Doctrine of Res Ipsa loquitor
With all torts including negligence, the burned of proof exists on the plaintiff to show that the
tort with committed by the defendant and that there has been some legal injury. This doctrine
means” things speak unto themselves.

17
A.I.R. 2000 Mad. 340.

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CONCLUSION AND SUGGESTIONS

Thus the tort of negligence is a breach of legal duty of care set by law thereby violating
someone’s legal right and thus causing him legal damage.
The hypothesis therefore which was

1. Duty of care is directly proportional to the magnitude of risk involved.

2. The concept of duty of care is applicable only when it qualifies the test of reasonable
foresight.

It is proved with the help of case laws mentioned above i.e. Wagon mound case, Glasgow v.
Taylor, Kunal shah v, AMRI etc. the decision of which supports the claim made in the
hypothesis. The court held in these cases is that duty of care is directly proportional to the risk
involved and in cases of breach of reasonable standard of care to be taken in cases of a high risk
act whether (commission or omission) , the liability would be imposed and it will be more of a
severe nature and more compensation will be awarded.
Thus, Duty of care may be considered a formalisation of the social contract, the implicit
responsibilities held by individuals towards others within society. It is not a requirement that a
duty of care be defined by law, though it will often develop through the jurisprudence of
common law.
Although the idea of a general duty of care is now widely accepted, there are significant
differences among the common law jurisdictions concerning the specific circumstances under
which that duty of care exists. Obviously, courts cannot impose unlimited liability and hold
everyone liable for everyone else's problems; as Justice Cardozo put it, to rule otherwise would
be to expose defendants "to a liability in an indeterminate amount for an indeterminate time to an
indeterminate class." There must be some reasonable limit to the duty of care.
BIBLIOGRAPHY

Books:
[1] “Law of Torts” by D.R R.K. BANGIA.
[2] “Introduction to the Law of Torts and Consumer Protection” by AVTAR SINGH AND HARPREET
KAUR.
[3] “Law Of Tort” by S.P. SINGH

References:
[1] http://www.law.uwa.edu.au/__data/assets/pdf_file/0008/1838186/Example_Development
-of-law-negligence.pdf
[2] http://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=2282&context=hlr
[3] "Donoghue v. Stevenson in Retrospect". Modern Law Review. Wiley Blackwell.
[4] www.legal services india.com
[5] www.lawteacher . net >free law essays>Tort law.
[6] www.lawoctpus.com/academic/medical negligence
[7] https://www.law.cornell.edu/wex/negligence.

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