Degree of care is not a phrase with static connotation. Its meaning would depend on given fact situation- the person who owes a duty to take care, the person whose care is to be taken and the subject matter by reference to which degree of care is to be determined. A person, who enters or walks into any premises, if the premises be open to accept entry, and there be nothing warning against his entry, has a right to assume that he is walking into a safe premise.
The person entering into premises may be an intruder or a person invited or a person entering subject to payment or price charged for the entry. In the commercialised world degree of care would also be determined by reference to the price which is being charged.
Few illustrations may assist expounding of the principle-
- One who purchases a glass of water from a trolley in the street for 10 or 25 paise is entitled to safe drinking water which should not ordinarily infect him. But if person purchases a mineral water bottle for Rs. 10/ or 15.00 then he can justifiably demand a higher degree of purity. The manufacturer of water bottle cannot be heard to say so long as he has made it equivalent to the trolley man’s water he has done his duty and he needs to do nothing more. Such a proposition would be untenable both in law and equity.
- A hospital admitting a patient indoors impliedly warrantees its wards free from infection. To some extent a patient in general ward and a patient in intensive care unit are assured of a minimum and equal degree of care. However, the intensive care unit, more so when it is a pay ward, cannot be heard to say that the degree of care adopted thereat is the same as is adopted in the general ward.
If the patient may be admitted to an intensive care unit of a luxury hospital say for Rs. 3000 or Rs 5000 a day he would be justified in demanding a higher and sophisticated degree of care, comfort, convenience and recovery. It would not be heard to say that its duty to take care of the patient was over by guaranteeing the same degree of care and a mere sterilization from infection as could be expected in the general ward of a hospital.
- An evening walker desirous of sipping a cup of tea on the roadside dhaba for a rupee or fifty paise would just sit on a charpoy. If the charpoy be not an intentional trap, its collapse bringing down the customer to earth may provide a source of amusement merely and the customer may be happily bid goodbye by the dhaba owner; the customer smilingly accepting his luck to nave been in the dhaba.
To someone desirous of same sipping of a cup of tea welcomed as a guest in a five-star hotel prepared to pay Rs. 50.00 for a cup is entitled to safer chair to seat him and high quality of tea, well served and presented. The leg of the chair giving way and bringing down the customer on floor of the hotel would certainly invite not a mere smile but a liability in tort on the hotel owner, the latter having failed in discharging his duty to take care and see that the customer was not only comfortable but also safe so long as he was inside the hotel premises whether seated or moving.
- A person received in a hotel as a guest enjoys an implied assurance from the hotel that the proprietor by himself and through his servants, agents would take proper care of the safety of the customer. Not only the building structure but the services offered thereat have to be safe and immune from any danger inherent or otherwise. A hotel owner holds himself out as willing and also as capable to accommodate and entertain the guests. The quality and safety of the services offered increases with the quantum of the price paid for being guest at the hotel. Higher the charges, higher the degree to take care.
- In the hotel culture the stars assigned to a hotel are suggestive of the professional expertise, achievement and quality of the services available at the hotel and professed and projected by it to the public at large, holding out invitation to the prospective guests to stay at the hotel– an assurance as to quality, safety and hazardless ness of the services offered and available at the hotel.
Such a higher degree of care cannot be permitted to be got rid of by merely putting a signboard or caution notice that the guest staying at the hotel does so at his own risk or a guest consuming or availing any of the services offered by the hotel does so at his own risk. The validity of an invitation to avail and enjoy a service and legal consequences including duty to take care and its degree flowing therefrom cannot be permitted to be softened by a general notice – at your own risk- which is hardly a deterrent. One who extends an invitation, tempting the invitee to accept the same cannot be heard to say that the invitee did so at his own risk
The variation in the degree of care
The variation in the degree of care making it heavier co-relating the same with the charges fixed and realised in consideration of offering a service assumes significance in law for two purposes,
Firstly, it has a bearing on the degree of care expected, either express or implied.
Secondly, it has a bearing on the amount of compensation that would become payable in the event of failure to discharge the expected degree of care. Higher the degree of care, higher the quantum of compensation, both flowing from rise in charges realised for rendering the services.
To illustrate, on breach of duty to take care, the five-star hotel would not be heard offering the same quantum of compensation as would have been offered by a charitable organisation running a Dharamshala where a guest was staying on payment of nominal charges.
Klaus Mittelbachert vs East India Hotels Ltd.: 1999 ACJ 287