2. Definition of negligence

2.1 Essential elements of negligence

2.2. Existence duty of care

2.2.1 Reasonable Foresight (1st stage)

2.2.2 Proximity( 2^nd stage)

2.2.3 A duty under law (3^rd stage)

2.3 Breach of duty of care

2.4 The standard of expected care

2.5 Damages Caused by breach of duty

2.6 Proof of negligence

2.7 Doctors and patients relation

2. Definition of negligence:

Negligence is the mental attitude of undue indifference with respect to one’s conduct and its consequence .The concept ‘NEGLIGENCE ’has been defined by different scholars in different ways, L.B. Curzan .in Dictionary of Law defined the term negligence as the breach of a legal duty to take care ,resulting in damage to the clamant which was not desired by the defendant. In the case of Blyth vs. Water works Co.(1856)11 Ex.78 , the concept ‘negligence was defined as the omission to do something which a reasonable man ,guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.Actus non facit reun ,nisi mens sit ria ,is a very well known maxim of Law of Tort which says that the Act itself creates no guilt in the absence of a negligence i.e. ,sometimes absence of guilt mind can also create liability .On the other hand it can say that negligence ,under torts, is a term used to designate a failure to exercise due care ,resulting in injury to another ,and for which an action for damage may be brought. Medical negligence may be defined as want of reasonable degree of care and skill or willful negligence on the part of a medical practitioner in the treatment of patient with whom a relation of professional attendant is established so as to lead to his bodily injury or permanent disability or loss of life 7. It typically involves the negligence of a physician while diagnosis due to absence of skill or care , failure to attend the patient in time ,to delegate the duty of treating or operating upon a patient to another doctor without the consent of the patient, etc .are termed as medical negligence 8

2.1 Essential elements of negligence:

Negligence consists of unreasonable conduct ,which causes harm in breach of a legal duty to take care to avoid harm of that kind.9 There are three elements of negligence and they are given below:

(i) Existing duty of care ,which is owed by the defendant to the complainant,

(ii) The failure to attain that standard of care ,prescribed by the law ,thereby committing a breach of such duty.

(iii) Damage which is both causally connected with such breach and recognized by the law, has been occasioned to the complainant.

2.2 Existing duty of care:

A Dr. when consulted by a patient owes him the following duties:

I) A duty of care in deciding whether to undertake the case;

ii) A duty of care in deciding what treatment to give;

iii) A duty of care in administration of the treatment.

A breach of any of the above mentioned duties give rise to a right of action for negligence to the patient.10. so the concept of negligence presuppose a duty of care .It is obvious that without having a duty to care a person shall not be held liable so,there must have been a duty and that duty must be done carefully.in the case of Le Lievre vs. Gould (1893) 1 Q.B.491,497,504,A. L. Smith,LJ held that a duty to take care did arise when the person or property of one was in such proximity to the person of property of another that, if due care was not taken, damage might be done by the one to other. Again the mare fact that a man is injured by another’s act gives in itself no cause of action unless there is mens rea. If the act involves lack of care, no case of actionable negligence will arrives unless the duty to be careful exists ¹⁰.

It is not easy to define the phrase “duty of care”. It is far from easy to say when the court will accept or deny that the defendant was under a common law duty to take care of plaintiff’s interests. Lord Atkin made a famous generalization in 1932, in the case of Donoghue vs Stvenson(1932),A. C. 562 at 580, to the effect that a person owed a duty to another (“his neighbor) who, as he should have realized, was likely to be affected by what he was doing if he did it badly. Thirty years later Lord Willbar force extended it somewhat ( The “two-stage” test). Neither formulation emphasized either the nature of the damage in issue (personal injury. Property damage, mere economic laws) nor the nature of the conduct, a part from its being unreasonable (act or omission, action or speech?). This factors are nevertheless of great importance in the decision as to the existence of duty. The current view is that a duty arises where there is sufficient “ Proximity” between the parties(An amalgam resulting from the relationship between the parties and the nature of the plaintiff’s interest), provided it would be “fair, just and reasonable” to impose a duty (which means “to impose liability in the event of damaging carelessness”).

10. Le Liever vs . Gould(1893) 1 Q.B. 491, 504, A.L. Smith, LJ.

In modern times, to define the “duty of care” the House of Lords laid down three-stage test in the Caparo industries Plc vs Dickman(1990) 1 All E.R.568. In this case deceived that the court must now consider the following three stages:

2.2.1 Reasonable Foresight (1^st stage):

The first stage is whether the consequences of the defendant’s were reasonably foreseeable. it is purely a question of fact .As for example in the case of Jolley vs. Sutton London Borough Council (2003)3All E.R.409. The defendant council left lying (for at least two years) a boat on their land outside some flats. The 14 years old claimant and his friend decided to repair it .they jacked it up but, while they were at work, the boat fell on the claimant and caused him serious injuries. The defendants accepted that they had been negligent in falling to remove the boat but contended that the accident was not that they could have reasonably foreseen. In allowing the defendant’s appeal the Court of Appeal accepted this connection, but the House of Lords saw things differently and held that the accident had been reasonably foreseeable. But in the case of Bourhill vs Young(1943) A.C. 92, the plaintiff was “Not in any way physically involve in the collision”. The defendant’s motorcycle was already some fourty five feet past. The plaintiff when he collided with a motorcar and was killed. The plaintiff was not on the far side of a tramcar, and so shield from the physical consequences of the accident. If, therefore, liability was to be established, it could only be on the basis that the defendant should have foreseen injury by nervous shock. The plaintiff did, in fact, suffer injury to her health as a result of the shock, which she sustained. But as the defendant could not reasonably foresee that she would suffer injury by shock, it was held that she could not recover compensation. Again in the case of Topp vs London CountryBus ltd(1993) 3 All. E.R 448. the defendants left their mini bus unattended with the irrigation key visibly in the place for nine hours at a past-stop outside a pub. At 11-15 pm. A person unknown drove it away, and five minutes later knocked down and killed Mrs. Topp who was cycling home. The trail judge held that there was proximity between Mrs. Topp and the defendants but that would not be fare and reasonable to impose a duty of care on the defendant. The Court of Appeal upheld the decision.

The neighbor test of Lord Atkin has established the general concept of reasonable foreside as the criterion of negligence. Thus every reasonable man has a duty to takecare to avoid foreseeable harm to his neighbor. 11 Weather the defendant woes a duty to the plaintiff or not depends on reasonable foresee ability of the injury to the plaintiff. If at the time of the act or 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 able ¹².

The injury, which could not have been foreseen, can not make a physician liable for negligence. A patient may suddenly react adversely to Penicillin even if his medical history does not reflect the same. Here doctor should not be held liable for the unpredictable reactions of the human body. It would be sufficient that the doctor has taken reasonable care in studying the patient’s past medical records etc 13

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11. Bag R. K. Law of Medical Negligence and Compensation, Op, cit, p. 13.

12. Dr. Bangia R.K The Law of Torts, Op. cit, p. 49

13. Damatanti S. “What is Medical Negligence? What are the Standard of Cares Principles”. A paper presented in a workshop on “Medical Negligence and Legal Remedy” Organized by Public Interest Litigation Training Project to BLAST on 27^th and 28^th August, Dhaka (1999) p. 44.

2.2.2 Proximity(2^nd Stage):

The second stage is whether there is a relationship of proximity between the parties ,i.e. a legal relationship or physical closeness. The existence of relationship of proximity between the parties varies from case to case. Say for example, in the case of Home Office vs Dorset Yacht Company.(1970)A.C. 1004,seven Brostel boys five of home had escaped before, were on a training exercise on Brownsea Island in Poole Harbour, and ran away one night when three officers-in-charge of them where, contrary to instructions, all in bed. They boarded one of the many vessels in the harbour, started it and collided with the plaintiff’s yatch, which they then boarded and damaged further.

The Court held that there was a relationship of proximity. But in the case of Caparo Industries Plc vs. Dickman (1990) 1 All E.R. 568. , the directors of Fidelity Plc announced unexpectedly poor result in May 1984 shares in Fidelity with a take-over in view. Four days later the courts, Touche Ross, were issued to shareholders as provided by statute, and Caparo brought a farther 50000 shares. Finally Caparo brought all the rest at a price of £125. This proved to be a very bad bargain, since far from making aprofit of £1.3 million as indicated by the accounts, Fielity had made loss of 400000.In addition to claming (and obtaining )damages in deceit form Fidelity ‘s directors, Caparo sued the auditors for negligence ,alleging that it had brought the shares in reliance on the accounts and they would not have brought them at that price or at all if the accounts had presented, as they said they did, a true and fair view of Fidelity’s position .Hence ,the court held that there was no proximity between the parties.

In order to hold a physician liable for negligence the negligent act must be the direct and proximate cause of the damage .It must be shown that of all the possible reasons for the injury the breach of duty of the doctor was the most probable causes.¹⁴ Hence if the possible causes of injury are the negligence of a third party, an accident or breach of duty of care of the doctor, then it must be established that the breach of duty of care of the doctor was probable cause of the injury.¹⁵ Thus where the plaintiff is so closely connected with the defendant that, the latter can reasonably foresee the injury or damage which might be caused to the former due to his failure to do a particular act, then the existence of duty of care is recognized.

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14.Wilsher vs. Essex Area Health Authority (1988) All E. R 871

15. Dr. Rao Joga vs. S. (1999) “ Doctor – Patient Relationship, Medical Negligence, Liability Arising out of Tort Law, Criminal Law and Contract Law ” Op. cit, page. 7

2.2.3 duty impose by law (3^rd stage)

The third stage is whether in all circumstances it would be fair, just and reasonable that the law should impose a duty .For an example, in the case of Hill vs. Chief Constable of West Yorkshire (1988) 2All E.R.238, the court held that it was no be fair, just and reasonable to impose a duty on the police. However a duty was imposed on the fire brigade in the case of Captain vs. Hampshire County Council (1997).

2.3 Breach of duty of care

The second element of negligence is that to make a man liable there must be a breach of that duty. While performing the duty a person should take reasonable care. Otherwise he will be liable for the breach of that duty. In Bolton vs. Stone (1951) All ER 1078 (HL), during a game of cricket the ball was hit out of the Park hitting the plaintiff who was standing on a nearby highway at a distance of about hundred yards from the batter. Over the history of cricket park a ball had been hit that far only about six times in 30 years.

The House of Lords found that there was no negligence. They calculated whether the defendant had a duty to the plaintiff by taking into account the foresability of the risk was and the cost of measures to prevent the risk.¹⁶

Lord Porter has observed that the following conditions must be satisfied to make a man reasonable in an action of negligence –

(a) A reasonable possibility of the happening of the injurious event;

(b) There must be sufficient possibility to lead a reasonable man to accept it.

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16 Mulin vs. Richards (1998) All E.R. 920.

Liability of a doctor dose not arises in all cases where the patient is injured of the act of the doctor. He is liable only is he has committed a breach of duty in the process. The is said to be in breach of a duty when he conduct is below the reasonable standard, which is required by law in a particular situation. The reasonable degree of care is known as standard of care.

2.4 The standard of expected care:

It is clear that to make a man negligent it has to be proved that that person has not followed the standard of care. It should be kept in mind that standard of care will be different for different categories of people i.e. specific riles shall be applied if the defendant is a child16, a learning17, experts or a professional. In the case of Bolam vs. Friern Brenet Hospital (1957).18,the plaintiff broke his pelvis during electro- convulsive therapy treatment at the defendant’s hospital. He alleged that the doctor was negligent in not warning him of the risks, of the treatment, in not giving relaxant drugs before the treatment, and in not holding him down during the treatment. It was held that the defendant was not negligent. The decision of this case was exhaustively discussed. In the case of Whitehouse vs.Jordem (1981) 1 All E.R. 267, it was held that the error of judgment made a doctor liable in the case of negligence; whereas in the case of Nettleship vs.Weston (1971) 2 Q.B. 691, the diffident asked the plaintiff who was a friend and not a professional driving instructor, to teach her to drive her husband’s car. On being assured that there was fully comprehensive insurance cover he agreed to do so. During the third lesson the defendant stopped at a junction prior to turning left. The plaintiff engaged first gear for her, and she started to turn slowly to the left. Her grip on the steering wheel tightened implacably, and despite the plaintiff’s advise and efforts, the car followed a perfect curve mounted the near side pavement and stuck a lamppost with sufficient impact to fracture the plaintiff’s knee. It was held by the Lord Denning that the driver owes a duty of care to every passenger in the car, just as he does to every pedestrian on the road; and he must attain the same standard of care in respect of each. But in all other cases the court will consider the following factors in deciding if there has being a breach of duty :

The degree of risk involved:

Here the court will consider the likelihood of harm occurring. There may have either no known risk or a low risk 19 or there may have a known risk20.

The practicability of taking precautions:

The courts expect people to take only reasonable precautions and not excessive precautions in guarding against harm to others21.

The seriousness of harm:

Sometimes, the risk of harm may be low but this will be counter-balanced by the gravity of harm to a particularly vulnerable claimant.22

The social importance of the risky activity:

If defendant’s actions served a socially useful purpose then he may have been justified in taking greater risks23.

To say that a conduct is careless or negligent is to be evaluating it, and it can only be evaluated in the light of some norms or standard, which the person making the evaluation has in mind. The courts in many countries have adopted a legal measure, all standard of care, to which the defendant’s conduct must confirm, if he is to escape liability from negligence.24

The law does not require the highest possible standard but the care required is that of reseanable man. Hence the duty owed by a doctor toward his patients is to bring to his task reasonable degree of skill and knowledge and to exercise a reasonable degree of care.25 Reasonable degree of care and skill means and competence, which an ordinary member of profession who professes to have those skills would exercise in the circumstances in question.26 It is noteworthy to mention here that the degree of care is variable and depends on the circumstances .It is used to refer to what actually amount to reasonableness in a given situation. But the standard of care is a constant and remains the same in all cases.27 Thus though same standard of care is expected form a generalist and specialist, the degree of care, which is expected form a specialist, would be different. In other words both are expected to take reasonable care but what amounts to reasonable care as regards the specialist differ form what amounts to reasonable care for the generalist. In fact the law expects the specialist to exercise the ordinary skill of his specialty, and not of any ordinary doctor.28 A doctor therefore, liable for negligence when he fails to exercise a reasonable degree of care and skill<not otherwise. He does not have to ensure that every patient who comes to him is cured .He has to only ensure that he makes a reasonable attempt to cure patient.

2.5 Damage caused by breach duty:

The third element of negligence is that the plaintiff must suffer damage due to the breach of that duty. To prove this claimant must prove that harm would not have occurred but for the negligence of the defendant29, where there are a number of possible cases of injury, the claimant must prove that the defendant’s breach of duty caused the harm or was a mental contribution.30 Again, the opinion of the Privy Council was that a person is responsible only for consequences that could reasonably have been anticipated and not for any other consequences.31 The defendant will be responsible for the harm caused to a claimant with a weakness or predisposition to a particular injury or illness.32 If harm is foreseeable but occurs in an unforeseeable way the defendant may still be liable.33 However there are two cases where the judges reversed this decision34. Negligence is not actionable per se. So, the patient has to prove some damage occasioned to him, which is both causally, connected with such breach and recognize by the law. If he proves that the doctor was negligent but fail to establish that any loss or injury caused there by, then he will not be entitled to claim any compensation.35

2.6 Proof of negligence:

As a matter of proof the burden of establishing a prima facie case lies upon the plaintiff. In order to show the breach of duty, the plaintiff would first show what is considered as reasonable in the light of the facts of the case and then the conduct of the doctor was below that drgree.36 Thus the liability of the doctor arises only when plaintiff is able to discharge the burden of him of proving negligence. But in some cases the doctor may be held liable in the absence of explanation on his part as to how the injury would have occurred without breach of his duty.

This principle is known as res ipsa loquitor which means that the thing speaks for itself.

2.7 Doctor-Patient Relationship:

The relationship between the doctor and the patient is mostly contractual which may be either express or implied. Consent for treatment on payment of fees on the part of an patient can be treated as an implied contract with the doctor. Who by undertaking treatment on acceptance of fees, impliedly promises to exercise proper care and skill37. Generally the contract between a doctor and patient is implied. Express contract is mainly observed in surgical operation where either the patient or his relative signs a bond declaring that they are fully aware of the risks involved in the surgery and voluntarily undertaking the same.

A doctor may in some cases be held liable negligence in the absence of his relationship with the patient. Because of the mature of his professional responsibility a doctor is under an obligation to save a person whose life is in danger even though no relationship exists between the two. If a doctor, for example, refuges to treat a patient who has been seriously injured in an accident, he will be held liable in the case of death of other irritable injury caused to him due to the failure to provide immediate treatment.38 In the case of emergency a doctor cannot escape his liability simply by saying that he owes no duty of care to the victim, as there is no doctor–patient relationship. In-fact, every doctor, at the government hospital or otherwise has a professional obligation to extend his services with due expertise for protecting life39.

These cases are, however, clearly restricted to situations where there is a danger to the life of the person. It can be inferred this that in other circumstances the doctor does not owe a duty. The liability, which arises independent of contract, is known as tortuous liability. The court faces some difficulties in determining the existing of duty of care in such cases.