In this article, Leepakshi Rajpal of SLS Hyderabad discusses the primary difference between criminal and civil negligence.

Introduction

Negligence is both civil as well as criminal wrong. This blog will initially explain the theoretical part of negligence followed by what people actually face in the real-life scenario. It is vital for us to know and understand that the concept of negligence is derived out of the basic word that we all have been subject to.

Understanding the concept of Negligence in law

So, we commence with the meaning of the word negligence which means “carelessness”. So it is basically a situation where one person is injured or is harmed due to the carelessness of the other person. The other person does not harm directly but due to an act that he committed negligently is the tort of negligence committed. It is when one person owes another person, the duty of care, which means that any other ordinary person would have taken care if he would have been there in his place, therefore negligence is where due to the failure of one person to take care, another person suffers harm, damage, injury or loss. Sometimes, situations arise in which there exists no contractual relationship between two parties, neither written nor implied. These situations are civil in nature and where there exists a contractual relationship that is where the concept of the criminal liability arises. For example in a case where doctor is treating a patient in the surgical room, if the patient has signed the contract where it is mentioned that the doctor will not be liable in case of death, then there exists a contract but if the patient dies not because of the disease but because of the negligent act that the doctor committed then it is criminal negligence.

Elements or essentials of Negligence

There are few essentials of negligence that need to be fulfilled before one can claim that negligence has been committed. They are appended below:-

Duty of Care

This means that there exists a duty of care in everything you do. The action of a person is tested upon whether any prudent man would have done the same in the similar circumstances, therefore duty of care means to take reasonable care of what you are doing.

Breach of Duty of care

It is the breach of the duty of care which should be present in the negligent act, which means that if the act is done with the reasonable care and protection as any other prudent man would do, then there arises no question of the negligence being into question.

There must be an injury or harm caused

Now, the third important element that needs to be taken into consideration is that there needs to be an injury, harm or loss to the person because of the breach of the duty of care on the part of the other person. Therefore, negligent act will come to the cognizance of the court only when the injury is caused to the person.

The injury or harm caused must be as a result of the breach of duty of care

This means that the previous act of the injury being caused is complete to be called as negligent act when it done because of the breach of the duty to take care on the part of the other. So, it is when the other person fails to perform his or her duty towards the other, which any other prudent man would do in ordinary course of situation, and injury is caused to the person because of the failure to take care of the other, negligence is said to have been committed.

Defences to Negligence

Negligence can always be an appropriate trick to target anyone, therefore, there are defences available which prove that it is not always that the act has to be negligent. These defences are appended below:-

Inherent Risk

So, when we talk about inherent risk, it means when the act itself is dangerous enough that it is dangerous and any prudent man would not engage in such an act, or any other prudent man would have done the same thing as the defendant has done, therefore in such cases the defendant would not be liable of the negligence of which he is charged in the court.

For instance, when some dangerous animal approaches towards me, I run and while I Run, I take the knife from your cake shop and ruin your cakes, because of which you suffer losses and damage. So, I cannot be negligent because the animal that is running behind me is dangerous and if I do not take the knife from your cake shop, I would have died, therefore my act of picking the knife from your cake shop was not a negligent act and was an intentional act. The circumstance involved an inherent danger. Therefore, I cannot be charged with negligence.

Obvious Risk

So, in this kind of defence we talk about something that is very obvious. Where the act done by the defendant was an obvious reaction to the primary action, the defendant cannot be blamed for negligence.

For Instance, where due to the spillage of oil, I slipped holding onto you and then you got hurt, I will not be held liable for negligent act.

Voluntary Assumption of Risk

I see a gun-shot approaching towards me and I jump pushing you ahead of me, in that case, I presumed that the gun-shot is coming towards me and the sudden reaction to the presumption was me jumping at you. In that case, I will not be held liable.

Dangerous Recreational Activity

Dangerous recreational activity is when we participate in an activity for recreational purposes, but that activity is inherently dangerous and the participation in which would be a voluntary act, I will not be held liable for negligent act.

So, where I participate in a sea diving activity, and drown and die, the person who took me for sea diving will not be held liable for any negligent act or my death because it was me who went for that activity, therefore he cannot be held negligently liable for injuries caused to be or harm caused to me.

Exclusion of Liabilities

In this what happens is that the defendant tries to modify their exposure to liability by stipulating a reduction or even an exclusion from liability. Exclusion of liability means that the defendant tries to maintain a relationship with the plaintiff, so as to avoid the liability on them. Therefore, when the defendant tries to enter the premises of the plaintiff according to the will of the plaintiff that is exclusion of liability. There lies an exception to this, i.e. when the term is used in the broader sense, reliance cannot be placed upon it because it loses its essence.

Illegality

This defence means that there is illegality in the action done by both the plaintiff and the defendant, which means that there exists a common action based on illegal terms and therefore, if the plaintiff sues the defendant for causing harm negligently, then the defendant can claim that the act itself was illegal and therefore, the suit does not stand.

For instance, when both the plaintiff and the defendant together keep a tiger to tame in their house, and one day the defendant opens the cage and the tiger destroys the lawn, the plaintiff cannot sue the defendant for opening the cage of the tiger, because keeping the tiger for taming purpose or for any other purpose is illegal according to the law of the land.

Inevitable Accidents

This means that accidents which are inevitable and over which the defendant has no control of, he cannot be sued for the same.

For instance, If I am travelling through toy train and buy a ticket from the ticket counter, and that train gets de-railed in between because of which I get hurt. So, I cannot sue the ticket distributors for not informing me about the derailing, even they were not aware of this inevitable accident. Therefore, they are not liable.

Contributory Negligence

So, contributory negligence means where both the parties are involved, no one party can be blamed for it. This means that when both the parties contribute to an action, and that action turns the table for one of them, the other one cannot be sued, because it was both of them who contributed for the negligence of the act and therefore, it was contributory negligence.

Now that we know what negligence means, what its essentials are, and what its defences are, let us get into the practical aspect of the negligence and what people really face in their daily lives.

Now, negligence can be of any type but what our blog is focussing on are the major areas where people find themselves to be trapped. So negligence can be of criminal nature or civil nature. Let is discuss both of them below:-

Cases of Criminal Negligence

1. When a person is driving a car and texting at the same time, and in the meanwhile breaks someone else’s car, he is criminally negligent because the criminal laws of the land, do not allow texting and driving.
2. Similarly, in a case where a person is drinking and driving, and kills someone on the road, he can be held criminally negligent. The reason is that killing is a crime and similarly drink and driving is also a crime, therefore he can be sued and held criminally liable.
3. When a nurse in a nursing home forgets to feed the patient and the patient dies because of the negligent act of the nurse that is when the nurse can be held criminally liable because it is because of her criminal negligence that the patient is put forward for a risk to life.
4. A caregiver in a hospital who is not paying attention and who provides someone with a deadly dose of medication could be considered criminally negligent.
5. A person who is supposed to be a caretaker of the nursery and fails to take care, in lieu to which someone takes away child of another, can be held criminally negligent.
6. A doctor who prescribes additive drugs to a patient knowing that he is allergic to it can be held criminally negligent.
7. A doctor in lieu of making money from the services he provides, if exchanges the lungs of a person during a surgery or leaves a tool or any hazardous substance inside his patient’s body, is criminally negligent.
8. A parent who leaves their child of two years, at home for going to a pub can be held criminally negligent. This is because it is their breach of duty to take care which is exposing the child to substantial risk.

Procedures and Best Practices Involved in Filing of a Criminal Case

So, now that we have seen certain cases where negligence can turn into a criminal act, we need to know how to file a criminal case.

1. File an FIR – Make sure that you file an FIR with the police at the police station after the happening of the criminal event with you.
2. Vakalatnama – Once you have filed an FIR, know that the Vakalatnama has to be filed because the lawyer or the advocate will need to represent you on your behalf.
3. Investigation– the process of investigation starts after the cognizance of the case to the court and sometimes even before that if the nature of the offence is serious in nature.
4. Laying of charges – If the crime is heinous then the police will frame the charges in the police diary and then report the same to the court. The court will then decide whether to prosecute based on the witnesses and the statements provided in the court.
5. Enquiry – Inquiry will be conducted by the court to determine the guilt of the offender and if no such guilt is found, then the statements will be recorded under the Section 164 of the CRPC, where the accused will be required to say whether he feels he is guilty or not and he can admit the guilt.
6. Trial- The process of trial starts when the investigation is over and the court now needs to decide upon the facts and the evidences upon whether the accused is guilty of the offence or not.
7. Arguments– both the lawyers put forth their arguments for the determination of the guilt of the accused.
8. Judgement– The judgment is given on the basis of the arguments put forth and taking into consideration the result of all the steps involved in a criminal case.

Advocates liability for Negligence in criminal cases

Indian position on advocates liability for negligence is defined under Section 5 of the Legal Practitioner’s (Fees) Act, 1925. No legal practitioner who has acted or has agreed to act shall, by reason only of being a legal practitioner be exempted from liability to be sued in respect of any loss or injury due to any negligence in the conduct of his professional duties.

Civil Negligence

Civil Negligence can be of different kinds, just as the way criminal negligence is. There are various common day examples which prove that the negligence even in the ordinary sense can take us to courts. Some of the examples of civil negligence are as follows:-

1. A store which is very popular for the beers, and usually has a lot of traffic inside the store, holds a sale in the mid-season without any security can be held negligent in his acts.
2. A pharmaceutical company if launches a drug without testing it on the humans can be held negligent.
3. A driver who runs a stop sign and goes beyond the prescribed speed limit can be held negligent.
4. A person who owns a dog and leaves him open in the courtyard of another, and the dog destroys the garden of another. The person can be held negligent.
5. If a person who owns a dog, leaves a dog open in the playground and the dog attacks the cat of another and injures her, the person can be held negligent.
6. An office where mopping is in process and does not put a sign of wet floor, can be held negligent.
7. A company which does not gets incorporated according to the SEBI guidelines, can be held negligent.
8. A doctor who operates on the wrong patient can be considered negligent.

Ten best practices and Procedures for filing a Civil Suit on negligence

1. Filing of a suit or a plaint

This means that you actually take down time and everything involved in the civil action that happened against you, in the above context, negligence. Then you write and give a written statement of the facts and whatever happened.

2. Vakalatnama

In vakalatnama what happens is that the person filing the suit authorises the advocate on behalf of the person to file a suit and in civil cases, this is not really necessary. This is done as the requirement of the time and the need is. The person can himself go and file the case and fight the case as well, the requirement of the vakalatnama, therefore is not a compulsion.

3. Filing

In this step what happens is that you file your plaint which is a written statement with the Chief Ministerial Officer or any other officer as the requirement may be and pay the prescribed fee for filing and the procedural fee and get going with the following steps. The fees may be different according to the officers you approach to.

4. Hearing

In this stage of hearing what happens is that the judge will listen to what you want to say and what the other party wants to say and then it will ask for substantial documents supporting the case and then fix a date.

5. Written statement

Written statement means that the statement by the judge that is given for the hearing on the next date. Also, within that period of time the defendant is required to record his written statements proving himself to be free of whatever charge the plaintiff has put against him.

6. Replication by plaintiff

Replication by the plaintiff means, that the person who has put the charges against you of any civil nature, he will reply to the recorded written statement of the defendant substantiating himself in the court of law of the various practices and actions that prove himself to be the right and the defendant to be actually guilty of the charge of the civil action against him.

7. Filing of other documents

Filing of other documents mean that the other documents required to substantiate the arguments by each of the parties involved. Both the parties collect and give the collected documents for substantiating their arguments and prove that they are rightful in the court of law.

8. Framing of issues

Framing of Issues means that once the documents have been put forth across the table, the judge will now consider the issues and the parties will have to fight their case upon the issues so framed according to the substantiated documents and evidences.

9. List of witnesses

List of witnesses means that the documents that substantiated by the parties, need also to be accomplished by a witness who will prove in the court that he saw or witnessed the event happening for which the case has been filed.

10. Final Hearing

Once the witnesses, documents and issues are looked into, the judge decides as to in whose favour the judgement should be and acts as an empire in the adversary system of the Indian Courts. The judgement is either given in the form of paying damages, compensation, injunction or remuneration for the losses suffered.

Conclusion

Therefore, in the above-mentioned circumstances, different levels of negligence can be traced. Some negligence may be civil in nature while the other may be criminal in nature. If we stop doing negligent acts, we will stop tolerating them too and then only we will become careful about our actions about what we speak and what we do.