This article is written by Gajjala Ramesh Bhavani, student of Alliance University, Bangalore and Vaishnavi Jetti student of DSNLU, Vishakhapatnam.
According to 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”.
There are three essential elements of negligence:
- That the defendant owed duty of care to the plaintiff;
- The defendant made a breach of that duty;
- The plaintiff suffered the damage as a consequence thereof.
In order to take an action for negligence, the plaintiff has to prove these three essentials.
Negligence, in common terms, means carelessness. The most common professionals who face this type of negligence: Bankers, Manufactures, Repairers and Builders, Physicians and Surgeons, Solicitors, Counsel, Directors of Companies, Carriers, Innkeepers and Hotelkeepers. The negligence committed by these professionals is known as Professional Negligence. It becomes professional negligence when the responsibilities of a professional fail to reach a standard level. The practice of a profession or art which requires some special experience, skill, and ability by carrying a reputation for that practice to the extent is required.
Professional negligence is a very complicated area of law, it takes place when a professional breaks down to perform his responsibilities to a required standard. Before defending a claim including allegations of professional negligence, there should be a sought of legal advice in all the cases.
A failure to carry out the required standard represents a breach of contract. To claim for negligence and for breach of contract, there are some important differences especially to the one relating to the remedy that can be sought. While discussing any claim with a legal advisor this should be considered. Professional negligence may include compensation for loss incurred to the plaintiff by the defendant’s act of negligence.
In this article, the concept of professional negligence by medical practitioners, manufactures, builders, repairers, solicitors, and bankers will be explained to get a better view on the liability of each professional. The laws and cases which are related to this topic will be discussed in a detailed way.
Negligence by medical professionals
The negligence made by the surgeons or physicians is termed as medical negligence. A surgeon should not be in a belief that he will undertake a particular operation of a patient or that he will discharge a cure for that only. He should not just undertake to use the highest possible degree of skill but should undertake any operation to bring a competent, fair, and reasonable degree of skill.
While filing a suit against a doctor, the plaintiff i.eThe patient should take the responsibility of proving that the defendant was negligent and he suffered with the injury caused due to the defendant’s negligence. For the appropriate remedy to prove the doctor’s negligence, the plaintiff should provide evidence and file a civil suit for compensation as a writ petition under Article 226 of the Constitution. When a doctor is being consulted by a patient, the doctor owes him certain duties like duty of care:
- in whether he can undertake the case,
- in deciding what treatment to give,
- in administration of the treatment.
The patient gets right to take an action against the doctor when any of these duties were breached. The preference of choosing which kind of treatment should be given is available for a doctor like which way of treatment he wants to give to the patient and such preference is also should be applicable in case of emergencies. The doctor has to bring to his task a reasonable degree of knowledge and skill and must perform with a reasonable degree of care.
In Achutrao Haribhau Khodwa V. State of Maharashtra, in a Government hospital, a towel was left inside a woman’s peritoneal cavity while she was being operated for sterilization causing peritonitis which led to her death. By applying the principle of rep ipsa loquitor, conclusion to the negligence was strained against the doctors of the hospital and they were vicariously held liable.
So, few laws were made by the Supreme Court, stating that the medical practitioner’s skill varies from one another. There may be alternative ways in which the patient will be advisable for a treatment and this is the very nature of the profession. If the doctor performs his duty with due care, and with the best of his ability caution, courts will actually be slow in assigning negligence on his part. The course of action that should be taken with regard to a doctor for treating a patient, medical opinion may differ and that he has attended on the patient with due skill, care and diligence will be noticed by the court and if the patient still does not survive or suffers a permanent ailment, the doctor cannot be held for guilty of negligence.
In Martin F D’souza V. Mohd. Ishfaq, the Supreme Court observed the entire case law and repeated the principles which were stated in Jacob Mathew’s case. In this the plaintiff complained of deafness due to the negligence of the doctor by administering overdose of Amikacin injection. Based on the evidence the negligence of the doctor will be decided. The court in addition of repeating the medical negligence principles mentioned directions which are general: whenever a complaint is filed against a hospital or a doctor by the District, State or National courts or by the criminal court, before issuing the notice to the doctor or the hospital of against whom the complaint was filed, either the Consumer forum or the criminal court should observe the matter to competent doctor or committee of doctors, specialized in the field relating to which the medical negligence in attributed, and only after that the concerned doctor or the committee should be given notice of medical negligence. Also, the doctors who are not found guilty of negligence should not be harassed. If the policeman goes against doctors and harass them, the policemen themselves face legal actions.
Criminal negligence can be charged against a physician when a patient dies from the effects of anaesthesia in an operation or in any other treatment only after proving the death was the result of gross negligence or malicious intention. Before the administration of anaesthesia or performance of an operation, the performer is expected to follow the accepted precautions. In such cases, the physician should be able to prove that he used ordinary and reasonable care in the treatment of his patient to the best of his knowledge.
For a sound mind adult, a doctor cannot lawfully operate or give them any other treatment involving the applications of physically force without their consent rather he would be liable but when a patient is incapable of giving his consent, a doctor can lawfully operate or give the required treatment concerned that is in the best interests of the patient but only if it is applicable to either to save his life or to ensure improvement or prevent deterioration in his physical or mental health. These principles were mentioned in the House of Lords in F V. Berkshire Health Authority in which a mentally handicapped woman, a patient in a mental health hospital, was having a sexual relation with a male patient in the same hospital and an application to the court was made for permitting sterilization operation which was held to be in the best interests of the patient. The sterilization operation of a minor or a mentally incompetent adult requires the sanction of a High Court judge in all cases.
Negligence by manufactures, builders and repairers
The manufacturer owes a duty of care to all the customers who are expected to use his products. In case, if the products which are dangerous like those which are defective that may cause extensive harm, then the duty can be owned to anyone who will reasonably be affected by the defect in the product. So, it means that the negligence claim is not limited by the doctrine of privity of contract, which states that to a contract only one party can sue. Only manufactures are not liable, also those who supplied or distributed products are also liable. The negligence of manufacture can be of:
1) During the process of manufacturing, lack of duty care which may result as a defective product,
2) During the product designing lacking duty of care which subjects to failure of carrying careful research out,
3) Failing in conducting the tests effectively,
4) Failing of providing danger warnings effectively,
5) Failing to recall a product or issuing warnings appropriately if any danger becomes apparent after circulation of the product.
It may restrict effectiveness in claiming product liability as only the manufacturer can be held liable for lacking reasonable care which resulted in injuring the party. So, this party should be able to prove it and this may be expensive and difficult. In few cases, which are concerned with defects made by the manufactures, the party which got injured can rely upon res ipsa loquitur. It is difficult to avoid the liability unless the plaintiff can show how the negligence took place. The manufacturers are responsible to show how they took responsibility to provide safe products with good quality by avoiding defective goods and also the reasonable care of employees in the manufacturing process.
When the complaint is about negligence of designing the product, then the position of the party that got injured will be weaker. To impose liability for negligence of design by the manufacturers, the courts may be reluctant. Also, the injured party faces difficulty in linking the negligence of the defendant and the loss he incurred.
Building projects requires a greater number of professionals and each one plays a different role in the process where everyone is responsible for duty of care and skill. Sometimes there will be arguments between the professionals and non-professionals regarding contribution and contributory fault. Also, sometimes local authorities have involvement in the construction projects.
In Donoghue V. Stevenson case, which is also called ‘Snail in ginger beer’, where the plaintiff was given a ginger beer bottle by a friend which he took from a retailer. The plaintiff drank the bottle where the bottle contained the snail’s decomposed remains and recognized this after consuming greater part of the bottle. The bottle was dark opaque glass so that the content in it wasn’t visible. The plaintiff suffered from shock and severe gastroenteritis. The plaintiff filed a suit against the defendant and the defendant was held liable.
The repairer of an article owes a duty to any person by those who use the product lawfully to observe whether it has been carefully repaired or not. In case of distributors, the plaintiff has to show that in some way they have been careless in their handling of the particular goods.
Negligence by solicitors
A solicitor will be held liable for the outcomes of non-observance or ignorance of the rules of practice of the court. He will also be liable for the lack of requirement of care in the preparation of the cause for trial and for the mismanagement of the conduct of a cause that is usually administered to the profession of his department. A suit can be filed for damages against a solicitor on the ground that he failed to lodge and prosecute an appeal because if he would have done without negligence, then his client may get justice.
A solicitor is liable for the negligence act in case the client proves that the act resulted in the loss of the cause, like allowing a claim to be barred by limitations or struck out for failure to apply for a trial date within the prescribed period. For the negligent act of his partner or agent, the solicitor will also be held liable.
In Country Personnel (Employment Agency) Ltd V. Alan R Pulver & Co., a solicitor was held liable for negligence to his client for not alerting him as to the effect of an unusual clause in a lease while negotiating an underlease. But a Solicitor, who had acted for a testator in preparing a will, owes no duty of care to the beneficiary when he acts for the testator in a subsequent transaction relating to a property covered by the will.
Except in the most exceptional circumstances a solicitor advising a partnership has no duty to communicate his advice to all the partners as he only has to advise the partner who has the matter in hand on behalf of the firm. A solicitor does not normally owe any duty of care to his client’s counterpart but in special circumstances he may owe such a duty.
For negligence a solicitor cannot be held liable in the conduct of either criminal or civil proceedings if it involves an attack on the decision of a court of competent jurisdiction. So, a plaintiff who was convicted by a criminal court on a plea of guilty cannot sue his solicitors for damages that they were negligent in advising him to plead guilty.
Negligence by bankers
As per Section 5(b) of the Banking Regulation Act, 1949, banking means ‘the accepting, for the purpose of lending or depositing investments of money from the public and repayable on demand or otherwise and withdrawable by draft, cheque, and order or otherwise. To sum up, a banker is who: takes current and deposit accounts; pays and issues cheques; for his customers collects crossed and uncrossed cheques.
Liabilities of bankers for negligence are not at par with private individuals. The public institution’s priority in general belongs to the society. No particular individual is interested in securing it. The affairs of public institutions are managed by paid employees in whom few are only interested in their salaries. An agent who is signing a promissory note on his name, cheque or bill of exchange without indicating and later he signs as agent, or if he does not intend later to incur personal responsibility will be held liable personally except to those who had induced him to sign upon the belief that the principal only would be held liable.
The money kept in the hands of the bankers by customers of the bank for the casual purposes of the banking; they are the persons of skills and as persons worthy of trust. Their duty is to respect the payment of their customer’s cheque, to honor them to any amount not exceeding the credit balances. A failure in commissioning leads to negligence and would be liable to damages which might include for injury to the credit of the customer.
A banker if commits a negligent act will be held liable vicariously, and also the bank will be held liable if its employees are done in the course of employment. They are also liable for negligence in paying forged cheques. If the banker issues bank drafts without the authority in accordance with the customer’s instructions against valid cheques of the customer owing to the fraud of the customer’s servant, he will be liable for damages. Also, if he delivers the goods or money to a wrong person, which he received on behalf of the customer then the liability of the banker is absolute, though there is no element of negligence.
The concept of negligence is something which is common in everyday life. Many people incur loss or harm for the negligence committed by others. The professional should take the duty of care either to their parents or customers or clients. They should also protect the consumers from the happenings of dangerous things. Not all the professionals accept their negligence at their work and not all the plaintiffs have undergone the damages that are especially caused due to the negligence of the professionals, so to find out and provide the verdict to the justified person there should be laws for the negligence.
A doctor generally presumed to know the law and dealt with it because in general he can and ought to know it. In the matter of professional liability, the medical profession varies from other occupations because that professional operates in the field where success cannot be achieved in every case. In present day society the awareness regarding the patient’s rights increased, especially the medical practitioners are becoming unsafe as they were being held sued by a litigation suit of either criminal or civil. The other professionals also face the same kind of situation but it is greater in number in the medical field.
Also, when the professionals were held liable it helps the customer or the client or the patient by payment of their damages which were caused by the negligence of the professionals. By the existence of laws to the negligence made by the professional even they will try to work with efficiencies though in some cases they fail. In the case of counsels, in CBI V. K. Narayana Rao. The Supreme Court has clarified that in law negligence professionals like doctors, architects, lawyers, and others who are included in the category of the persons possessing certain skill. The lawyer is not expected to assure the client that under any circumstances he can win the case. He can only assure that he would exercise his special skills with reasonable competence. Thus, the professionals can be held guilty of negligence in two situations i.e., either he was not possessed with the required skill which he proclaimed to have possessed or he failed to exercise with reasonable competence in the case which he possessed.
- ‘LIABILITY OF THE LEGAL PRACTIONERS FOR PROFESSIONAL NEGLIGENCE : A CRITICAL ANALYSIS Author (s): Jeet Singh Mann Source : Journal of the Indian Law Institute , JULY-SEPTEMBER 2009 , Vol. 51, No. 3 Published by : Indian Law Institute (2009) 51 385
- Ritchie JH and Davies SC, ‘Professional Negligence : A Duty of Candid Disclosure ? Doctors Should Explain In Full When Care Has Gone Wrong Professional Negligence : A Duty of Candid Disclosure ? Doctors Should Explain in Full When Care Has Gone Wrong’ (1995) 310 888
- Sadusk JF, ‘Professional Liability’ (1957) 164 Journal of the American Medical Association 1688
- Karunakaran M, ‘Supreme Court on Medical Negligence’ (2006) 41 Economic and Political Weekly 111 http://www.jstor.org/stable/4417666
- Review VL and Review VL, ‘The Role of Negligence in Modern Tort Law Author ( s ): John G . Fleming Published by : Virginia Law Review Stable URL : Https://Www.Jstor.Org/Stable/1071415’ (1967) 53 815
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