Negligence as a tort is the breach of a duty caused by omission to do something which a reasonable man would do or doing something which a prudent and reasonable man would not do.
The definition involves the following constituents:
(1) a legal duty to exercise due care;
(2) breach of the duty; and
(3) consequential damages.
Negligence has many manifestations – it may be
- active negligence,
- collateral negligence,
- comparative negligence,
- concurrent negligence,
- continued negligence,
- criminal negligence,
- gross negligence,
- hazardous negligence,
- active and
- passive negligence,
- wilful or reckless negligence or
- Negligence per se, which is defined in Black’s Law Dictionary as under:
“Negligence per se: Conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances, either because it is in violation of a statute or valid municipal ordinance, or because it is so palpably opposed to the dictates of common prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it.
As a general rule, the violation of a public duty, enjoined by law for the protection of person or property, so constitutes.”
The breach of duty may be occasioned either by not doing something which a reasonable man, under a given set of circumstances would do, or, by doing some act which a reasonable prudent man would not do.
Breach of duty in Medical Profession
So far as persons engaged in Medical Profession are concerned, it may be stated that every person who enters into the profession, undertakes to bring to the exercise of it, a reasonable degree of care and skill. It is true that a Doctor or a Surgeon does not undertake that he will positively cure a patient nor does he undertake to use the highest possible degree of skills as there may be persons more learned and skilled than himself, but he definitely undertakes to use a fair, reasonable and competent degree of skill.
This implied undertaking constitutes the real test, which will also be clear from a study and analysis of the judgment in Bolam vs. Friern Hospital Management Committee. (1957) 2 All ER 118, in which, McNair, J., while addressing the jury summed up the law as under:
“The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. In the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. There may be one or more perfectly proper standards, and if he conforms with one of these proper standards, then he is not negligent.”
This decision has since been approved by the House of Lords in Whitehouse vs. Jordon (1981) 1 All ER 267 (HL); Maynard vs. West Midlands Regional Health Authority (1985) 1 All ER 635 (HL); Sidaway vs. Bathlem Royal Hospital (1995) 1 All ER 643 (HL); Chin Keo vs. Govt. of Malaysia (1967) 1 WLR 813 (PC).
The test pointed out by McNair, J. covers the liability of a Doctor in respect of his diagnosis, his liability to warn the patients of the risk inherent in the treatment and his liability in respect of the treatment.
Supreme Court in Dr. Laxman Balakrishna Joshi vs. Dr. Trimbak Bapu Godbole & Anr. AIR 1969 SC 128, laid down that a Doctor when consulted by a patient owes him certain duties, namely,
(a) a duty of care in deciding whether to undertake the case;
(b) a duty of care in deciding what treatment to give; and
(c) a duty of care in the administration of that treatment. A breach of any of these duties gives a cause of action for negligence to the patient.
The principles were reiterated in A.S. Mittal vs. State of U.P. AIR 1989 SC 1570, in which wide extracts from that judgment were made and approved.
Poonam Verma vs Ashwin Patel & Ors (1996 AIR 2111)