LAW OF MEDICAL NEGLIGENCE UNDER TORT LAW
Negligence is the breach of a duty caused by the omission to
do something which a reasonable man, guided by those considerations which
ordinarily regulate the conduct of human affairs would do, or doing something
which a prudent and reasonable man would not do. [See Law of Torts, Ratanlal
& Dhirajlal Twenty-fourth Edition 2002, at p.441-442] Negligence means
"either subjectively a careless state of mind, or objectively careless
conduct. It is not an absolute term but is a relative one; is rather a
comparative term. In determining whether negligence exist in a particular case,
all the attending and surrounding facts and circumstance have to be taken into
account." [See Municipal Corpn. Of Greater Bombay v. Laxman Iyer,
(2003) 8 SCC 731, para 6; Adavanced Law Lexicon, P Ramanatha Aiyar, 3rd ed.
2005, p. 3161]
Judgement is quoted under :-
Negligence is strictly nonfeasance and not malfeasance. It
is the omission to do what the law requires, or the failure to do anything in a
manner prescribed by law. It is the act which can be treated as negligence
without any proof as to the surrounding circumstances, because it is in
violation of statute or ordinance or is contrary to the dictates of ordinary
prudence.
In Bolam v. Friern Hospital Management Committee, [(1957) 2
All ER 118], the law was stated thus:
"Where you get a situation which involves the use
of some special skill or competence, then the test.....is the standard of
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.... [A doctor] is not guilty of negligence
if he has acted in accordance with a practice accepted as proper by a
responsible body of medical men skilled in that particular art....Putting it
the other way round, a [doctor] is not negligent, if he [has acted] in
accordance with such a practice, merely because there is a body of opinion
which [takes] a contrary view."
It has been laid down that an ordinary skilled professional
standard of care for determining the liability of medical professional should
be followed. (See Maynard v. West Midland Regional Health, Authority, [(1985) 1
All ER 635 (HL)])
Recently in Martin F.D' Souza v. Mohd. Ishfaq, [ (2009) 3
SCC 1], this Court laid down the precautions which doctors/hospitals etc.
should have taken, in the following terms :-
"(a) Current practices, infrastructure, paramedical
and other staff, hygiene and sterility should be observed strictly....
(b) No prescription should ordinarily be given without
actual examination. The tendency to give prescription over the telephone,
except in an acute emergency, should be avoided.
(c) A doctor should not merely go by the version of the
patient regarding his symptoms, but should also make his own analysis including
tests and investigations where necessary.
(d) A doctor should not experiment unless
necessary and even then he should ordinarily get a written
consent from the patient.
(e) An expert should be consulted in case of any
doubt...."
In fact, the Bolam case in common laws jurisdictions is
weakened in recent years by reasons of series of decisions in Australia [Rogers
v. Whitaker: (1992) 109 Aus LR 625 and Roenbreg v. Percival 2001 HCA 18];
Canada [Ribl v. Hughes: (1980) 114 DLR 3d 1] and the United States and even in
the United Kingdom.
We may refer to Bolitho v. City and Hackney Health
Authority, [(1997) 4 All ER 771 (HL)], where the Court got away from yet
another aspect of Bolam case. It was observed :-
AIR 2003 SC 4182 : (2003) 4
Suppl. SCR 984 : (2003) 8 SCC 731 : JT
2003 (8) SC 108 : (2003) 9 SCALE 2
(SUPREME COURT OF INDIA)
(Before : Doraiswamy
Raju And A. Pasayat, JJ.)
Civil Appeal No. 8424 of 2003 (Arising out of
SLP (C) No. 5639 of 2003), Decided on : 27-10-2003.
Motor Vehicles Act, 1988—Section
168—Accident—Immunity from liability—Driver or Corporation or Insurer cannot
disown the liability merely because the victim committed breach of traffic
regulations.
Though the driver may not have been in this
case wholly responsible for the accident, as contended, from the mere fact
that the victim acted in contravention or a traffic regulation alone complete
immunity from liability of the driver or the appellant corporation for the
accident so as to disown totally responsibility to compensate the injured or
dependants of the victim cannot be accorded also. Merely because there may
have been breach of any traffic regulation, in the absence of concrete,
clinching, positive and legally acceptable material to fix sole
responsibility for the accident only on such injured/victim, which are
conspicuously absent on the facts and circumstances of this case, the
liability of the appellant-corporation remains, though to what extent remains
to be considered further. Even according to the stand of the Corporation, the
victim was seen by the driver from a distance of about 30 ft. and the vehicle
was moving at a snail’s pace. If that be so, it is not understood as to how
it became totally impossible for the driver to avoid the accident has not
been substantiated by proper evidence. In fact the High Court as noticed that
there was ample scope for avoiding the collision between the cycle and the
bus. The evidence on record also establishes that the bicycle was thrown to a
distance of 4-5 ft. Before taking the turn, horn was found not blown by the
driver. The application of the brakes and the incident of collision between
the cycle and the bus seem to have been almost simultaneous. The stand of the
Corporation that the bus had come to a halt much prior to the incident of the
collision is not acceptable and though has been rightly rejected by the
Tribunal and the High Court, the infirmity in their orders also lay in
rejecting the plea of contributory negligence completely. The Tribunal as
well as the High Court ought to have appropriately apportioned the negligence
keeping in view the materials placed on records and properly balancing rights
of parties.
Words and phrases—Contributory negligence—What
is—Where accident caused due to negligence of both parties, it amounts to contributory
negligence.
In a case of contributory negligence, the
crucial question on which liability depends would be whether either party
could, by exercise of reasonable care, have avoided the consequence of
other’s negligence. Whichever party could have avoided the consequence of
other’s negligence would be liable for the accident. If a person’s negligent
act or omission was the proximate and immediate cause of death, the fact that
the person suffering injury was himself negligent and also contributed to the
accident or other circumstances by which the injury was caused would not afford a defence to the other. Contributory
negligence is applicable solely to the conduct of a plaintiff. It means that
there has been an act or omission on the part of the plaintiff which has
materially contributed to the damage, the act or omission being of such a
nature that it may properly be described as negligence, although negligence
is not given its usual meaning. (See Charlesworth on Negligence, 3rd Edn.
Para 328). It is now well settled that in the case of contributory
negligence, Courts have power to apportion the loss between the parties as
seems just and equitable. Apportionment in that context means that damages
are reduced to such an extent as the Court thinks just and equitable having
regard to the claim shared in the responsibility for the damage. But in a
case where there has been no contributory negligence on the part of the
victim, the question of apportionment does not arise. Where a person is
injured without any negligence on his part but as a result of combined effect
of the negligence of two other persons, it is not a case of contributory
negligence in that sense. It is a case of what has been styled by Pollocks as
injury by composite negligence. [See Pollock on Torts, 15th Edn.
P. 361].
At this juncture, it is necessary to refer
to the ‘doctrine of last opportunity’. The said doctrine is said to have
emanated from the principle enunciated in Devies
v. Mann, (1842 (10) M&W 546) which has often been explained as
amounting to a rule that when both parties are careless the party which has
the last opportunity of avoiding the results of the other’s carelessness is
alone liable. However, according to Lord Denning it is not a principle of
law, but test of causation.
The sample test is what was the cause or
what were the cause of the damage. The act or omission amounting to want of
ordinary care or in defiance of duty or obligation on the part of the
complaining party which conjointly with the other party’s negligence was the
proximate cause of the accident renders it one to be the result of
contributory negligence.
Words and
phrases—Negligence—Meaning of—Negligence is omission of duty caused either by
omission to do something.
A plea which was stressed strenuously related
to alleged contributory negligence. Though there is no statutory definition,
in common parlance ‘negligence’ is categorized as either composite or
contributory. It is first necessary to find out what is a negligent act.
Negligence is omission of duty caused either by an omission to do something
which a reasonable man guided upon those considerations who ordinarily by
reason of conduct of human affairs would do or obligated to, or by doing
something which a prudent or reasonable man would not do. Negligence does not
always mean absolute carelessness, but want of such a degree of a care as is
required in particular circumstances. Negligence is failure to observe, for
the protection of the interests of another person, the degree of care,
precaution and vigilance which the circumstances. Negligence is failure to
observe, for the protection of the interests of another person, the degree of
care, precaution and vigilance which the circumstances justly demand, whereby
such other person suffers injury. The idea of negligence and duty are
strictly correlative. Negligence means either subjectively a careless state
of mind, or objectively careless conduct. Negligence is not an absolute term,
but is a relative one; it is rather a comparative term. No absolute standard
can be fixed and no mathematically exact formula can be laid down by which
negligence or lack of it can be infallibly measured in a given case. What
constitutes negligence varies under different conditions and in determining
whether negligence exists in a particular case, or whether a mere act or
course of conduct amounts to negligence, all the attending and surrounding
facts and circumstances have to be taken into account. It is absence of care
according to circumstances. To determine whether an act would be or would not
be negligent, it is relevant to determine if any reasonable man would foresee
that the act would cause damage or not. The omission to do what the law
obligate or even the failure to do anything in a manner, mode or method
envisaged by law would equally and per se constitute negligence on the part
of such person. If the answer is in the affirmative, it is a negligent act.
Counsel
for the Parties:
Soli J. Sorabjee, Attorney General, P. H. Parekh, E. R.
Kumar Rajaram, Advocates with him, for Appellant
Jayant Bhushan, Sr. Advocate, Ms. Minakshi Nag, Abhimeet
Sinha and Ejaz Maqbool, Advocates, with him, for Respondents.
Judgment
Arijit Pasayat, J—Leave
granted.
2. The Municipal
Corporation of Greater Bombay (hereinafter referred to as the 'Corporation')
questions legality of the judgment rendered by learned single Judge of the
Bombay High Court in the appellate side. The said appeal related to a
judgment and award passed by the Motor Accidents Claims Tribunal for Greater
Bombay (for short the 'Tribunal') adjudicating a claim petition under Section
110-A of the Motor Vehicles Act, 1939 (in short the 'Act').
3. One Kumar
(hereinafter referred to as the 'deceased') lost life in a vehicular accident
which occurred on 15-8-1989. Vehicle No. MMK 6623, a bus belonging to the
Corporation was the offending vehicle. Claim of rupees six lakhs was made by
the parents of the deceased (respondents in this appeal). According to the
claimants, when the deceased was going by his bicycle suddenly the offending
vehicle dashed against him. The impact of the accident was so severe that the
deceased was thrown to some distance and sustained various serious injuries
which resulted in his death. The deceased was aged about 18 years at the time
of accident. He was a good student and would have entered to income earning
services shortly. The Corporation took the stand that the deceased had
suddenly come from the left side of the bus from Chembur Railway Station at a
very high speed and instead of taking left turn, took right turn in
contravention of traffic regulations. When the driver of the vehicle saw the
cyclist coming on a wrong side, he immediately applied the brakes and halted
the bus. Despite this, the cyclist was unable to control the cycle and dashed
against the bus from the right corner of the bus, as a result he fell down.
He was removed to the hospital with the help of the conductor of the bus and
other persons. Witnesses were examined to show as to how the accident
occurred and also on the compensation aspect. The Tribunal noticed that as
the case progressed, a significant change was made in the stand taken by the
Corporation. The driver was examined. He stated that he was driving the
vehicle at very slow speed. The deceased came from the side of Chembur
Station in the opposite direction and when he saw him at a distance of 30
ft., he immediately applied the brakes, and halted the bus. But the cyclist
came and dashed against the front side of the bus. Since the cyclist came
from the wrong side of the bus, he sustained injuries which proved fatal. The
Tribunal held since the parents were claimants and came from a respectable
and educated family, it would not be improbable to conclude that the deceased
would have earned decently by taking an employment. By taking the expected
earning of ` 3,000/- p.m.
multiplier of 15 was adopted. Accordingly, the quantum was fixed at ` 5,60,000/-
including loss of expectation of life. As a lump sum was being paid,
deduction of 25% was made and finally a sum of ` 4,01,250/- was awarded as compensation, with interest at
15% p.a. from the date of application. The matter was carried in appeal to
the Bombay High Court, which by the impugned judgment held that the quantum
fixed was proper. However, interest was reduced from 15% to 12% p.a.
4. In support of
the appeal, learned Attorney General appearing for the Corporation submitted
that the High Court's judgment is vulnerable on more than one counts. Firstly
it is submitted that the parents being the claimants, the multiplier as
adopted is not proper. Secondly, this was a case where the accident occurred
more on account of deceased's negligence than that of the driver of the
offending vehicle. This is a clear case of contributory negligence. That
being so, the awarded amount cannot be maintained.
5. In response,
learned counsel for the claimants submitted that the award made is just, fair
and needs no interference.
6. A plea which was
stressed strenuously related to alleged contributory negligence. Though there
is no statutory definition, in common parlance 'negligence' is categorised as
either composite or contributory. It is first necessary to find out what is a
negligent act. Negligence is omission of duty caused either by an omission to
do something which a reasonable man guided upon those considerations who
ordinarily by reason of conduct of human affairs would do or obligated to, or
by doing something which a prudent or reasonable man would not do. Negligence
does not always mean absolute carelessness, but want of such a degree of a
care as is required in particular circumstances. Negligence is failure to
observe, for the protection of the interests of another person, the degree of
care, precaution and vigilance which the circumstances justly demand, whereby
such other person suffers injury. The idea of negligence and duty are
strictly correlative. Negligence means either subjectively a careless state
of mind, or objectively careless conduct. Negligence is not an absolute term,
but is a relative one; it is rather a comparative term. No absolute standard
can be fixed and no mathematically exact formula can be laid down by which
negligence or lack of it can be infallibly measured in a given case. What
constitutes negligence varies under different conditions and in determining
whether negligence exists in a particular case, or whether a mere act or
course of conduct amounts to negligence, all the attending and surrounding
facts and circumstances have to be taken into account. It is absence of care
according to circumstances. To determine whether an act would be or would not
be negligent, it is relevant to determine if any reasonable man would foresee
that the act would cause damage or not. The omission to do what the law
obligate or even the failure to do anything in a manner, mode or method envisaged
by law would equally and per se constitute negligence on the part of such
person. If the answer is in the affirmative, it is a negligent act. Where an
accident is due to negligence of both parties, substantially there would be
contributory negligence and both would be blamed. In a case of contributory
negligence, the crucial question on which liability depends would be whether
either party could, by exercise of reasonable care, have avoided the
consequence of other's negligence. Whichever party could have avoided the
consequence of other's negligence would be liable for the accident. If a
person's negligent act or omission was the proximate and immediate cause of
death, the fact that the person suffering injury was himself negligent and
also contributed to the accident or other circumstances by which the injury
was caused would not afford a defence to the other. Contributory negligence
is applicable solely to the conduct of a plaintiff. It means that there has
been an act or omission on the part of the plaintiff which has materially
contributed to the damage, the act or omission being of such a nature that it
may properly be described as negligence, although negligence is not given its
usual meaning. (See Charlesworth on Negligence, 3rd Edn. Para 328). It is now
well settled that in the case of contributory negligence, Courts have power
to apportion the loss between the parties as seems just and equitable.
Apportionment in that context means that damages are reduced to such an
extent as the Court thinks just and equitable having regard to the claim
shared in the responsibility for the damage. But in a case where there has
been no contributory negligence on the part of the victim, the question of
apportionment does not arise. Where a person is injured without any
negligence on his part but as a result of combined effect of the negligence
of two other persons, it is not a case of contributory negligence in that
sense. It is a case of what has been styled by Pollock as injury by composite
negligence. (See Pollock on Torts, 15th Edn. P. 361).
7. At this
juncture, it is necessary to refer to the 'doctrine of last opportunity'. The
said doctrine is said to have emanated from the principle enunciated in
Devies vs. Mann (1842 (10) MandW 546) which has often been explained as
amounting to a rule that when both parties are careless the party which has
the last opportunity of avoiding the results of the other's carelessness is
alone liable. However, according to Lord Denning it is not a principle of
law, but test of causation. (See Davies vs. Swan Motor Co. (Swansea) Ltd.
(1949 (2) KB 291). Though in some decisions, the doctrine has been applied by
Courts, after the decisions of the House of Lords in The Volute (1922 (1) AC
129) and Swadling vs. Cooper (1931 AC 1), it is no longer to be applied. The
sample test is what was the cause or what were the cause of the damage. The
act or omission amounting to want of ordinary care or in defiance of duty or
obligation on the part of the complaining party which conjointly with the other
party's negligence was the proximate cause of the accident renders it one to
be the result of contributory negligence.
8. Though the
driver may not have been in this case wholly responsible for the accident, as
contended, from the mere fact that the victim acted in contravention or a
traffic regulation alone complete immunity from liability of the driver or
the appellant corporation for the accident so as to disown totally
responsibility to compensate the injured or dependants of the victum cannot
be accorded also. Merely because there may have been breach of any traffic
regulation, in the absence of concrete, clinching, positive and legally
acceptable material to fix sole responsibility for the accident only on such
injured/victim, which are conspicuously absent on the facts and circumstances
of this case, the liability of the appellant-corporation remains, though to
what extent remains to be considered further. Even according to the stand of
the Corporation, the victim was seen by the driver from a distance of about
30 ft. and the vehicle was moving at a snail's pace. If that be so, it is not
understood as to how it became totally impossible for the driver to avoid the
accident has not been substantiated by proper evidence. In fact the High
Court as noticed that there was ample scope for avoiding the collision
between the cycle and the bus. The evidence on record also establishes that
the bicycle was thrown to a distance of 4-5 ft. Before taking the turn, horn
was found not blown by the driver. The application of the brakes and the
incident of collision between the cycle and the bus seem to have been almost
simultaneous. The stand of the Corporation that the bus had come to a halt
much prior to the incident of the collision is not acceptable and though has
been rightly rejected by the Tribunal and the High Court, the infirmity in
their orders also lay in rejecting the plea of contributory negligence
completely. The Tribunal as well as the High Court ought to have
appropriately apportioned the negligence keeping in view the materials placed
on records and properly balancing rights of parties.
9. So far as the
quantum of compensation is concerned we find that at the time of accident, as
revealed from the claim petition, the claimants were 47 years and 43 years
respectively. It is not the age of the deceased alone but the age of the
claimants as well which are to be the relevant factors, in case parents or
other dependants are claimants.
10. In Lata Wadhwa
and others vs. State of Bihar and others (AIR 2001 SC 3218) and M. S. Grewal and another
vs. Deep Chand Sood and others (AIR 2001 SC 3660) law on the principles of assessment
of compensation was elaborated. In Lata Wadhwa's case (supra) this Court
while dealing with the issue in relation to the compensation to be paid in
relation to the death of children, placing reliance upon the decision of Lord
Atkinson in Taff Vale Railway Company vs. Jenkins (1913 AC 1) has ruled that
“In cases of death of an infant, there may have been no actual pecuniary
benefit derived by its parents during the child's lifetime. But this will not
necessarily bar the parents claim and prospective loss will found a valid
claim provided that the parents establish that they had a reasonable
expectation of pecuniary benefit if the child had lived.”
11. This Court in M.
S. Grewal's case (supra) has clearly observed that the decision in Lata
Wadhwa's case (supra) is definitely a guiding factor in the matter of award
of compensation wherein children die under an unfortunate accident. The said
observation was made after taking into consideration the conclusions arrived
in Lata Wadhwa's (supra) regarding the compensation which was to be paid and
the multiplier which was to be applied in relation to the death of a child.
This Court in General Manager, Kerala State Road Transport Corporation vs.
Susamma Thomas and others (AIR 1994 SC 1631) held that the proper method
of compensation is the multiplier method, and the same view was reiterated in
M.S. Grewal's case (supra) observing that “needless to say that the
multiplier method stands accepted by this Court in the said decision.”
12. Keeping in view
the observations made by this Court in various cases, several other factors
need to be taken note of. The deceased was unmarried. The contribution to the
parents who had their separate earnings being employed and educated have
relevance. The possibility of reduction in contribution once a person gets
married is a reality. The compensation is relatable to the loss of
contribution or the pecuniary benefits. The multiplier adopted by the
Tribunal and confirmed by the High Court is certainly on the higher side.
Considering the age of the claimants it can never exceed 10 even by the most
liberal standards. Worked out on that basis amount comes to ` 3.6 lakhs at the
monthly expected income fixed by the Tribunal and confirmed by the High
Court. Looking into the nature of the contributory negligence of the deceased
after making an appropriate deduction which can reasonably be fixed at 25%,
the compensation amount payable by the Corporation can be fixed at ` 3 lakhs including
the amount awarded by the Tribunal and confirmed by the High Court for loss
of expectation of life. Interest at the rate as awarded by the High Court is
maintained from the date of application for compensation.
13. The appeal is
partly allowed to the extent indicated above. There will be no order as to
costs.
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