Law of Torts

Tort is derived from Tortum which is a latin word that means twisted act. Tort is a civil wrong.
It is not a crime or a criminal offence. Some torts such as defamation, simple hurt etc. are crimes
as well. Civil wrong implies that the remedy for the tortuous action will be available in a civil
court and not a criminal court.

Essential Ingredients of Tort

The essential ingredients of tort are:

1. Duty to take reasonable care

2. Legal Right of Plaintiff
3. Wrongful Act/ Wrongful Omission by Defendant
4. Legal Injury

White v. John Warrick & Co. 1953 2 All. E.R. 1021

White was doing business for which he required a bicycle. He hired a bicycle from John Warrick
& Co. for 5 cents a week. John Warrick Co. would repair the bike as and when necessary and
provide a spare bike while repairs were going on. Clause 11 of contract said We are not liable to
hirer for any personal injury while he/she rides the bike.

White gave bike for repairs and took spare bike without checking that the saddle was loose –
which collapsed and injured him grievously. Held the Co. is not liable under contract but an
action lies for tort. Since it was negligence of the Co. to give an unfit bike to the plaintiff because
of which he suffered injuries.

Salmond on Tort

Tort is a civil wrong which brings a common law action for unliquidated damages. It is not a
breach of trust.

Winfield on Tort

Tort is a breach of duty fixed by law and is a civil wrong which is not a breach of trust or a
breach of contract.
Differences between Tort and Breach of Contract

Tort Breach of Contract

1. It is a right in rem. 1. It is a right in personam.
2. It leads to an action for 2. Remedy is liquidated damages.
unliquidated damages. 3. It comprises of duty fixed by contract.
3. It is a breach of duty 4. A minor is not liable under cojntract except for supply of
fixed by law. necessaries under S. 68 Indian Contract Act.
4. A minor is liable for 5. Compensation is usually actual loss occasioned thereby i.e.
tort. general damages unless special circumstances had been made
5. Compensation may known to the defendant which may lead to award of special
include exemplary damages also. (S. 73 ICA)
damages.

Klaus Mittelbachert v. East India Hotels Ltd. AIR 1997 SC

Lufthansa had a contract with Oberoi Hotels that Hotel rooms will be provided for Lufthansa
pilots. Klaus went to swim in hotel pool, dived head first into the swimming pool leading to
grievous injuries. There was no information regarding the depth of the pool.

Held by the Supreme Court:

Privity of Contract between Lufthansa and East India Hotels will not stop Klaus from suing upon
the contract since he was the intended beneficiary of contract.

East India Hotels is also liable for tort due to its negligence i.e., breach of duty to take reasonable
care by wrongful omission and therefore 50 Lac damages awarded.

Differences between Tort and Crime

Tort Crime
1. It is a right in rem. 1. It is a right in rem and is prejudicial to the society.
2. Only the plaintiff is 2. The entire society is affected.
affected. 3. It is a public wrong.
3. It is a private wrong. 4. Punishment and fines and sometimes compensation under S. 357
4. Leads to an action for Cr.PC, 357A,B, C.
unliquidated damages. 5. Compromise is not allowed in heinous crimes but is allowed
5. Compromise is under S. 320 CrPC for personal crimes such as theft.
allowed. 6. Crime is both a crime and also a tort.
6. Tort remains a tort. 7. Intention is relevant. Except in strict liability offences such as
7. Intention is irrelevant. kidnapping a minor (S. 361 IPC) or drug trafficking (NDPS)
where it is irrelevant.

Injuria Sine Damnum

Legal injury without actual damage. It is a tort which is maintainable for restitution by
unliquidated damages in law.

Ashby v. White 1703 2 Lord Raym 938

Voter was stopped from casting his vote by policeman. Even though the candidate who voter
wanted to vote for won and there was no actual damage, yet the voter was held entitled to
damages because he suffered a legal injury i.e. his right to vote was violated.

Malice in Tort

Town Area Committee v. Prabhu Dayal AIR 1975 All. 132

Plaintiff constructed 16 shops on old building foundation without approval from the Town Area
Committee. Notice of Demolition was served upon him which was not responded to by him. A
2nd Notice was served upon him and he was given only 2 hours to respond. The building was
demolished. The Plaintiff alleged malice on behalf of the Chairman of the Town Area
Committee and suggested that the demolition was conducted with malicious intent. The court
however decided that a lawful act such as demolition of an illegal building even if done in malice
doesn’t make a lawful act into a tort.

Damnum sine Injuria

Damage without legal injury. For instance, a Sagar Ratna Restaurant suffered heavy losses when
McDonalds outlet opened nearby. There was damage to the finances of Sagar Ratna, however no
remedy lies. Since opening of McDonalds outlet causes no legal injury to Sagar Ratna.

Gloucester Grammar School 1410 Y.B. 11 Hen. IV of 47

The defendant opened a school with cheaper fees next to plaintiff’s school which lead to
economic losses to the plaintiff. However, the plaintiff had no tortious action because Damnum
sine Injuria was applicable. There were damages caused but they did not constitute a legal injury.

Volenti non fit injuria

Whoever voluntary with knowledge of the risk consents to that risk suffers no injury.

Smith v. Charles Baker & Sons. (1891) A.C. 325

Smith was a workman employed for rock cutting by drilling. The heavy rocks were then carried
over after being lifted by a crane over the head of Smith. Whenever cranes would lift the stones
and carry them over his head, Smith used to step aside for his safety. Many a times he had
complained to the manager about the safety of his work but the manager paid no heed to his
requests. One day a rock fell from the crane and injured him. It was held that the doctrine of
volenti non fit injuria was not applicable because even though Smith had knowledge of the risk,
he never consented to it as evidenced by his numerous complaints to the manager about the
nature of the work.

Scienti non fit injuria

A case where the plaintiff has knowledge of risk, but without giving consent to suffering that risk
has suffered damage. The defendant will be held liable.

Haynes v. Harwood 1935 1 K.B. 146

Harwood gave his carriage to servant, Bird for collection of goods from customer’s warehouse.
Bird parked the 2 horse van carriage and left it unattended on the road. 2 schoolchildren threw
rocks at the horses whereupon the 2 horse van descended upon the sloping road towards women
and children. At great personal risk, Haynes, a police officer came to their rescue and sustained
substantial injuries. The issue arose whether Harwood is liable to Haynes. Harwood alleged that
volenti non fit injuria is applicable as the policeman had knowledge of risk and consented to that
risk whereupon he does not become responsible if damage is caused.

It was held by the court that volenti non fit injuria is not applicable in cases of public rescue as it
shall discourage brave individuals from saving lives if no compensation is ordered whereupon
such individual suffers injury on grounds of volenti non fit injuria.

Padmavati v. Dugganaika 1975 1 KARN. LJ 93

Driver was going to get petrol filled in his jeep upon the orders of the owner. Two strangers,
husband and wife took lift from the driver. Midway, bolts of axel wheel gave away and both
husband and wife were thrown out from the jeep and the husband died. It was held that the driver
and the owner were not liable because of volenti non fit injuria.

Hall v. Brooklands Auto Racing Club 1932 All. E.R. Rep. 208

Hall went to watch F1 Racing. The sportscar moving at 160 kph moved from the road towards
stadium whereupon Hall was injured. It was held that the club is not liable because of volenti non
fuit injuria as the spectator knows about the risk and consents to the risk by attending a
dangerous sport in the stadium.

Illot v. Wilkes 1820 3 B & Ald. 304

Plaintiff and defendant were neighbours. Spring gun was attached on defendant’s property which
was rigged to fire a bullet on trespassers. Plaintiff trespassed with knowledge of the spring gun
and consent to that risk whereupon he was shot. It was held that defendant is not liable as volenti
non fit injuria is applicable.

R. v. Williams 1923 1 K.B. 340

Williams was a music teacher who obtained consent of a 16 year old girl to have sexual
intercourse upon the misrepresentation that the intercourse shall have the effect of improving her
voice. It was held that volenti non fit injuria is not applicable since consent was obtained on
misrepresentation; therefore it was tainted consent and not free-consent.

Hyett v. Great Western Railway 1948 1 K.B. 345

Hyett was injured upon trying to save the defendant’s railway from fire. It was held that
defendant is liable to compensate as the doctrine of volenti non fit injuria is not applicable to
cases of rescue.

Wrongful Omission

Glasgow Corp. v. Taylor 1922 1AC 44

Glasgow Corporation was in charge of maintenance of a public park which contained a

poisonous tree. A child who was playing in the park plucked a fruit from the poisonous tree and
died upon consumption. It was held that Glasgow Corp. is liable for tort because of their
wrongful omission of not cutting off that tree, or erecting a fence or a warning to dissuade or
adequately warn the public about the poisonous tree.

Christie v. Davey 1893 1Ch. 316

Christie and Davey were neighbors. Christie used to teach music at her home which used to
annoy Davey. Davey started banging on the walls of Christie’s house and behaved abusively and
tormented the students and did not allow classes to function. It was held that actions of Davey
were tortuous and the same were ordered to be stopped by injunction.

Defences to Tort

Defence of Inevitable Accident

Where a person inspite of taking due and reasonable care is unable to prevent another from
suffering injury. He is not liable to such person because the harm was inevitable.

Holmes v. Mather 1875 LR 10 Ex. 261

Mather was the owner of a horse upon which a groom was sitting. Horse became unruly and
inspite of repeated remonstrations and efforts of Mather, the bridegroom was knocked off the
horse. It was held that the defence of inevitable accident is applicable and Mather is not liable.

Stanley v. Powell 1857 1 Q.B. 86

A and B went for hunting game hen. A’s shot hit an oak tree and ricochet off it and hit B. A is
not liable because the accident was inevitable. It was unavoidable and there was no scope of
preventing it.

Defence of Act of God (Vis Major)

It is applicable as a defence against tortuous action in cases of exceptionally heavy rains, storms,
tides, earthquakes, tsunamis, volcanic eruptions i.e. natural calamities of proportions which no
human foresight can prevent and foresee.

Kallulal v. Hemchand AIR 1958 M.P. 48

2.66 inches of rain led to the falling off a wall in a residential premise occupied by tenants. 2
children died. It was held that the defence of vis major i.e. act of god is not applicable since it
was not a case of exceptional force of nature i.e. force majeure. The landlord is liable for not
taking reasonable care in the construction of the premises.

Nichols v. Marsland 1876 2 Ex D 1

A made a lake on his property with embankments surrounding it. Heavy rainfall ensued for many
days which were so exceptional that the embankment gave way and B’s nearby property was
swept away from the water of A’s lake. It was held that A is not liable because it was an act of
god due to exceptionally heavy rains and A had no control once such heavy rains ensued. No
amount of reasonable skill or care could have prevented the damage caused to B’s property.

Defence of Statutory Authority

A person cannot complain against the law or action recommended by the legislature by
enactment of a statute. No remedy lies against injury suffered from such law.

Metropolitan Asylum District v. Hill 1881 6 AC 193

The legislation prescribed building a hospital for treating smallpox patients in a “suitable area”.
Residents of the area where the hospital was proposed to be built complained against the
construction of the hospital in a residential area. The court held that defence of statutory
authority is not applicable because the legislation has prescribed a “suitable area” and not
particularly that area which has been proposed later on by the executive. Thus, the defence is
inapplicable because there has not been a clear and specific recommendation from the legislature
through law.

Hammersmith & City Railway Co. v. Brand 1869 LR 4 HL 171

Brand’s property was situated next to a railway station. Smoke, noise, dust and vibrations from
incoming trains led to his house becoming almost unlivable. He could not even find suitable
buyers and the rate of his property depreciated in the market as a result of the train station
nearby. Held that the railway station has been constructed under authority from the statute and no
action lies against the railway for the act of legislature.

Mistake is not a defence to Tort

Morrison v. Ritchie & Co. 1902 4 F 654

Newspaper published news that Mrs. Morrison has given birth to twins within 1 month of her
marriage which created a scandal. However, Mrs. Morrison had not given birth at all and the
news was false having been printed upon mistake. However, the court held that mistake of fact is
not a defence to tortuous action even though mistake of fact is a defence to crime. Newspaper
was held liable to compensate for defamation.

Vicarious Liability (Qui facit per alium facit per se)

He who gets another to act on his behalf is deemed by law to be acting himself.

Ingredients of vicarious liability

1. Wrongful act by agent on behalf of principal

2. Principal has knowledge of the work which agent is doing
3. Principal ratifies the work of the agent
Lloyd v. Grace, Smith & Co. 1912 AC 716

Mrs. Lloyd, a 60 year old childless widow wanted to sell her 2 cottages but could not do so
herself on account of her old age. She contacted a firm which appointed its Managing Clerk to
sell the 2 cottages. The Managing Clerk however prepared 2 gift deeds and through devious
means got Mrs. Lloyd to sign upon them. Mrs. Lloyd sued the firm. It was held that the firm is
vicariously liable for the tortuous acts of the clerk because the same was performed in the course
of employment and was within the scope of work handed over by the firm to the clerk.

S.B.I v. Shyama Devi AIR 1978 SC 1263

Shyama devi gave Rs. 25,000 to friend who was a peon in S.B.I for depositing the same in her
account. The peon vanished into thin air after obtaining the money. It was held that S.B.I was not
liable even though the peon indeed was their employee because the peon was acting as a friend
and not the employee of S.B.I. Moreover the bank has no knowledge of the work which peon is
doing as a peon is expected to act as a peon and not as a bank teller. The peon is not authorized
to deal with the public regarding their money transactions by the bank, therefore the bank is not
vicariously liable as the acts of the peon were outside his scope of employment and bear no close
connection to his usual work as an S.B.I employee.

Ormrod v. Crosville Motor Service Ltd. 1953 2 All. E.R. 753

Ormrod took car on hire from Crosville Ltd. Ormrod handed over the car keys to his friend and
sat down next to him as the friend started driving. There was an accident with a bus due to the
rash driving of Ormrod’s friend. It was held by the court that Ormrod is liable as Ormrod and his
friend share a principal-agent relationship and the same is within the ambit of vicarious liability.
Therefore Ormrod was held liable upon the principle of vicarious liability for the tortuous act of
his agent.

Tortuous Act of Independent Contractor Cannot Make Customer Liable

Devinder Singh v. Mangal Singh AIR 1981 P & H 53

Truck Owner gave his truck for repairs to Workshop Owner. After repairing the truck, the
Workshop Owner took the truck for a test drive but there was an accident in which a cyclist was
injured. The question arose whether vicarious liability is applicable i.e., whether Truck Owner is
liable for negligent driving of Workshop Owner. It was held that Workshop Owner is an
independent contractor and the Truck Owner is his customer which does not amount to a
vicarious relationship. Therefore, Truck Owner is not liable. Only the Workshop Owner is
personally liable.

Vicarious Liability of State

The Union of India may sue and be sued in its name according to Article 300 (1) of the
Constitution. The state can be held vicariously liable for the tortuous acts of its employees if they
fall within the scope of their employment.

State of Rajasthan v. Vidhyawathi AIR 1962 SC 933

A jeep owned by the Govt of Rajasthan was being used for the conveyance of IAS officer. The
driver was an employee of the state. While driving from the petrol pump to the residence of the
IAS officer there was an accident in which Vidhyawathi’s husband died. The state took the
defence of “sovereign function”, wherein the state is not liable for its own tortuous acts.
However, the court rejected the defence and held that hiring a driver for use by IAS is not a
sovereign function but rather is a commercial function. Therefore state is vicariously liable to the
wife of the victim.

TORTIOUS LIABILITY

The word tort has been derived from the latin word "tortum" which means to twist. In general, it
means conduct that adversely affects the legal right of others and is thus, "wrong". For a healthy
society it is necessary that it be free of anti-social elements and that an individual should have
freedom to exercise his rights without being restricted by others. Further, if there is a
transgression of any right, there must be a way to compensate or to restore the right. This is
essentially what the maxim, "Ubi just ibi remedium" implies. Where ever there is a right, there is
a remedy. Indeed, a right has no value if there is no way to enforce it. Such rights of individuals
primarily originate from two sources - contractual obligations and inherent rights that are
available to all the citizens against every other citizen, aka rights in rem. While the violation of
contractual right has clear remedy that arises from the contract itself, the violation of rights that
are available to all the persons in general does not have a clear remedy because there is no
explicit contract between the two parties. Such violations are called wrongs and it is for such
wrongs that the law of torts has been developed. For example, one has a right against all other
persons to be free of noise in the night. If somebody starts playing music loudly, then he violates
one's right to be noise free. He is, thus, doing a wrong and even though there is no contract
between the two, one can sue him for damages.

There can be innumerable types of acts that can transgress the rights of others and it is not
possible to come up with a definition that can accommodate all the cases. However, the
following are some definitions from the experts -

Salmond - A tort is a civil wrong for which the remedy is action in common law for unliquidated
damages and which is not exclusively a breach of contract or breach of trust or other equitable
obligation.

Winfield - Tortious liability arises from the breach of duty primarily affixed by law. The duty is
towards persons in general and its breach is redressable by an action for unliquidated damages.

Fraser - Tort in an infringement of a right in rem of a private individual giving a right of

compensation at the suit of the injured party.

Thus, it can be seen that tort is an act while the law of tort is the branch of law that provides
relief to the person who has been injured due to a tortious act.

From the above definitions, it is clear that the nature of a tort is that it is a civil wrong. However,
not all civil wrongs are torts. For example, breach of contract and breach or trust are civil wrongs
but are not torts because their remedies exist in the contract itself. To determine if a particular act
is a tort or not, we must first make sure that it is a civil wrong. We should then make sure that it
is NOT a breach of contract or breach of trust.

Historically, crime and tort originated from the same root. Later on, they separated on the
account that a crime does not only affect the victim but also to the society as a whole to a great
extent. Thus, the branch of law that deals with criminal conduct evolved a lot faster than the
branch of law that deals with torts.

The nature of tort can be understood by distinguishing it from crime and contractual civil
liabilities. It can be said that tort is the residual of wrongful acts that are not crime and that do
not fall under contractual liabilities. Thus, if a wrongful act is neither crime nor a violation of a
contract, it may fall under tort. The damages are unliquidated and are decided only by the
common sense of the courts. The following differences between Tort and Crime and Tort and
Breach of Contract, shows the true nature of Tort.

Distinction between Tort and Breach of Contract

Tort Breach of Contract

A breach of contract occurs due to a

Tort occurs when the right available to all the persons
breach of a duty (right in
in general (right in rem) is violated without the
persona) agreed upon by the parties
existence of any contract.
themselves.

Victim is compensated for unliquidated damages as Victim is compensated as per the terms
per the judgment of the judges. Thus, damages are of the contract and damages are usually
always unliquidated. liquidated.

Duty is fixed by the law of the land and is towards all Duty towards each other is affixed by
the persons. the contract agreed to by the parties.

Doctrine of privity of contract does not apply because

Only the parties within the privity of
there is no contract between the parties. This was held
contract can initiate the suit.
in the case of Donoghue vs Stevenson 1932.

When a contract is void, there is no

Tort applies even in cases where a contract is void. For
question of compensation. For example,
example, a minor may be liable in Tort.
a contract with a minor is void ab initio
 and so a minor cannot be held liable for
anything.

Justice is met by compensating the victim for his

injury and exemplary damages may also be awarded to
Justice is met only by compensating the
the victim. In Bhim Singh vs State of J K AIR 1986
victim for actual loss.
- the plaintiff was awarded exemplary damages for
violation of his rights given by art 21.

In the case of Donoghue vs Stevenson 1932, A purchased ginger beer in a restaurant for his
woman friend. She drank a part of it and poured the rest into a glass. Thereby, she saw a dead
snail in the drink. She sued the manufacturer. It was held that the manufacturer had a duty
towards the public in general for making sure there are no noxious things in the drink even
though there was no contract between the purchaser and the manufacturer.

The same principal was applied in the case of Klaus Mittelbachert vs East India Hotels Ltd
AIR 1997. In this case, Lufthansa Airlines had a contract with Hotel Oberoi Intercontinental for
the stay of its crew. One of the co-pilots was staying there took a dive in the pool. The pool
design was defective and the person's head hit the bottom. He was paralyzed and died after 13
yrs. The defendants pleaded that he was a stranger to the contract. It was held that he could sue
even for the breach of contract as he was the beneficiary of the contract. He could also sue in
torts where plea of stranger to contract is irrelevant. The hotel was held liable for compensation
even though there was no contract between the person and the hotel and the hotel was made to
pay 50Lacs as exemplary damages.

Distinction between Tort and Crime

Tort Crime

Tort occurs when the right available to all the persons in Tort occurs when the right available
general (right in rem) is violated without the existence of to all the persons in general (right in
any contract. rem) is violated and it also seriously
 affects the society.

Act is comparatively more serious

Act is comparatively less serious and affects only the
and affects the person as well as the
person.
society.

Intention is the most important

element in establishing criminal
Intention is usually irrelevant.
liability. A crime cannot happen
without Mens Rea.

It is a private wrong. It is a public wrong.

Since it is a private wrong the wronged individual must Since it is a public wrong, the suit is
file a suit himself for damages. filed by the govt.

The suit is for damages. The suit is for punishment.

There is no compromise for the

Compromise is possible between the parties. For
punishment. For example, if a person
example, a person who has been defamed, can
is guilty of murder, he cannot pay
compromise with the defamer for a certain sum of money.
money and reduce his sentence.

Compounding is generally not

Compounding is possible.
possible.

Justice is met by compensating the victim for his injury Justice is met by punishing the
and exemplary damages may also be awarded to the aggressor by prison or fine. In some
victim. In Bhim Singh vs State of J K AIR 1986 - the specific cases as given in IPC
plaintiff was awarded exemplary damages for violation of compensation may be given to the
his rights given by art 21. victim.

Several criminal acts such as assault

Tortious acts are usually not criminal acts. and battery are also grounds for
tortious suit.
Ingredients of Tort (Conditions that must be satisfied before a liability in Tort arises.)

There are three essential elements for an act to be liable under Tort.

1. Wrongful act or omission - There must be some act or omission of a duty on the part of the
defendant. For a tort to happen, the person must have first either done something that he was not
expected to do or omitted to do something that he was supposed to do.
Municipal Corp of Delhi vs Subhagvanti AIR 1966 - A clock tower was not in good
repairs. It fell and killed several people. MCD was held liable for its omission.

2. Duty imposed by law - The act or omission of an action must be required by law or the duty
must be imposed by law. This means that if an act that is prohibited by law causes harm, it is
liable under tort. Similarly, if the omission of an act that is required by law, causes harm, then it
is liable under tort. For example, law requires that the driver of a vehicle must drive carefully
and if driving without care, a pedestrian is hit, the omission of the act of driving carefuly is liable
under tort. However, if the worshipers stop going to a temple and thereby cause the priest to lose
money, this action is not liable under tort because going to temple is not an act that is required by
law. Such duties that are required by law are usually towards all the people in general.
Donaghue vs Stevenson 1932 - Held that the manufacturer of a drink has a legal duty
towards the consumers to ensure that noxious substances are not included in the drink.

3. Injury - The act or the omission must result in legal damage or injury i.e. violation of a legal
right vested in the plaintiff. This means that the act or omission must cause a damage that is
recognized by law as wrongful. For example, a person has a legal right to enjoy his property and
if someone throws trash in it, this is a violation of his legal right and is liable under tort.
However, it is possible that a legal right is violated without causing any physical or real damage.
This is explained in the maxim - Injuria Sine Damno.
Injuria Sine Damno -
Ashby vs White 1703 - The defendant wrongfully prevented the plaintiff from voting.
Even though there was no damage, the defendant was held liable.
 Bhim Singh vs State of J K AIR 1986 - Plaintiff was an MLA and was wrongfully
arrested while going to assembly session. He was not produced before a magistrate within the
requisite period. It was held that this was the violation of his fundamental rights. Even though he
was release later, he was awarded 50,000RS as exemplary damages by SC.

On the other hand, it is possible that a person suffers a huge loss or damage but none of his legal
rights are violated. This is called Damnum sine Injuria. In such cases, there is no tortious act.
Damnum Sine Injuria -
Glaucester Grammar School's case 1410 - Defendant opened a rival grammar school in
front of an existing one thereby causing the fees of the existing one to be reduced from 40pence
to 12 pence. He was not held liable as he did not violate any legal right of the plaintiff.
Ushaben vs BhagyaLaxmi Chitra Mandir AIR 1978 - Plaintiff sought a permanent
injunction against the cinema house to restrain them from showing the movie Jai Santoshi Maa.
It was contended that the movie depicts the goddesses Laxmi, Saraswati, and Parvati in bad light,
which is offensive to the plaintiff. It was held that hurt to religious sentiments is not recognized
as a legal wrong. Since there was no violation of a legal right, an injunction was not granted.
Chesmore vs Richards 1879 - Plaintiff had been drawing water from underground for
past 60 yrs. The defendant sunk a bore well on his land and drew huge quantity of water which
diminished the water supply of the plaintiff. It was held that the defendant was not liable because
he was only exercising his right and did not violate any right of the plaintiff.

Harm due to negligence - A person is not liable in tort even if he causes harm due to
negligence but does not cause injury. In Dickson vs Reuter's Telegram Co 1877, the defendant
company delivered a telegram that was not meant for the plaintiff to the plaintiff. Based on the
telegram, the plaintiff supplied some order which was not accepted by the sender of the telegram.
Plaintiff suffered heavy losses and sued the defendant company. It was held that the company
owed a contractual duty only to the sender of the telegram and not to the receiver. Hence they
were not liable.

Harm due to malice - If a person has not caused an injury even if he does an act with
malice, he is not liable. In Bradford Corporation (mayor of) vs Pickles 1895, the defendants
sunk a shaft in their own land which caused the water to become discoloured and unsuitable for
the plaintiff. It was held that even if the defendant did it with malice, he had not violated any
right of the plaintiff and hence was not liable.

4. Legal Remedy - Historically, a person whose legal right was violated was allowed to sue only
upon a permission from the King. There were only certain predefined torts for which the king's
permission could be obtained. Thus, it was necessary to have legal remedy for that particular
violation before an action for damages could be started.
However, now, such a requirement is not there. It has been accepted that there can be many kinds
of torts and if a violation of a legal right has happened, the person is enttitled to sue.

Kinds of Torts
As mentioned before there can be innumerable type of acts that violate the legal right of others.
The law of tort is therefore ever evolving. New ways in which the rights are violated come to
light everyday. However, they can be classified on the basis of way of incurrment of liability into
the following three categories -

1. Intentional - Wrongful acts that are done intentionally, irrespective of with or without
malice, belong to this category. For example, torts such as assault, battery, trespass to
land, false imprisonment are intentional torts.
2. Negligent Conduct - Wrongful acts that are done without any intention but because of not
taking proper care that is required by law fall into this category.
3. Strict Liability - Acts that are neither done intentionally nor do involve any negligence,
but still cause an injury to other are liable under the concept of strict liability as
propounded in Rylands vs Fletcher. In strict liability cases, the defendant is liable even
if it acted reasonably. There are 3 types of strict liability cases:
1- keeping wild animals
2- dangerous, legal activities such as blasting roads
3- the manufacture of products (products liability)

Torts can also be classified according to the type of damage -

1. Physical Torts - Causing physical hurt to body such as assault, battery. It can happen with
intention or even with negligence.
2. Abstract Torts - Causing damage to mind or reputation such as defamation.
3. Tort involving property - For example, Trespass to land.
4. Tort involving legal right - For example, false imprisonment.
5. Nuisance - Causing unreasonable restriction towards exercise of one's legal right.
General Defences for Torts.
Even when a plaintiff provides proof for the existance of all the essential elements of a tort, it is
possible in some cases for the defendant to take certain defences which can remove his liability,
These defences are nothing but specific situations or circumstances in which a defendant is given
a waiver for his tortious action. These are as follows -

1. Volenti Non fit Injuria

When a person consents for infliction of an harm upon himself, he has no remedy for that in
Tort. That means, if a person has consented to do something or has given permission to another
to do certain thing, and if he is injured because of that, he cannot claim damages. For example, A
purchases tickets for a Car race and while watching the race, an collision of cars happens and the
person is injured. Here, by agreeing to watching the race, which is a risky sport,it is assumed that
he voluntarily took on the risk of being hurt in an accident. Thus, he cannot claim compensation
for the injury.
Such a consent may be implied or express. For example, a person practicing the sport of Fencing
with another, impliedly consents to the injury that might happen while playing.

In Woolridge vs Sumner 1963, the plaintiff a photographer was taking photographs at a horse
show, during which one horse rounded the bend too fast. As the horse galloped furiously, the
plaintiff was frightened and he fell in the course. He was seriously injured. It was held that the
defendants had taken proper care in closing the course and the plaintiff, by being in the show,
agreed to take the risk of such an accident. The defendants were not held liable.

However, the action causing harm must not go beyond the limit of what has been consented. For
example, in a sport of fencing, a person consents to an injruy that happens while playing by the
rules. If he is injured due to an action that violates the rules, he can claim compensation because
he never consented to an injury while playing without rules.
In Laxmi Rajan vs Malar Hospital 1998, a woman consented for a surgery to remove a lump
from her breast. But the hospital removed her uterus as well without any genuine reason. It was
held that removing of her uterus exceed beyond what she had consented for.
Also, the consent must be free. It must not be because of any compulsion. Thus, if a servant was
compelled by the master to do a certain task despite his protests, and if he is injured while doing
it, the master cannot take the defence of volenti non fit injuria because the consent was not free.

Exceptions - In the following conditions, this defence cannot be taken even if the plaintiff has
consented -

1. Rescue Conditions - When the plaintiff sufferes injury while saving someone. For
example, A's horse is out of control and is galloping towards a busy street. B realizes that
if the horse reaches the street it will hurt many people and so he bravely goes and
control's the horse. He is injured in doing so and sue's A. Here A cannot take the defence
that B did that act upon his own consent. It is considered as a just action in public interest
and the society should reward it instead of preventing him from getting compensation.
2. Unfair Contract Terms - Where the terms of a contract are unfair, the defendant cannot
take this defence. For example, even if a laundry, by contract, absolves itself of all
liability for damage to clothes, a person can claim compensation because the contract is
unfair to the consumers.

2. Plaintiff the wrongdoer

A person cannot take advantage of his own wrong. This principle has been in use since a long
time as it is just and equitable. For example, a person trespassing one another's property is
injured due to darkness. He cannot claim compensation because he was injured due to an action
which was wrong on his part. However, this defence exists only if the injury happens because of
a wrongful act of the plaintiff. It does not exist if the injury happens because of a wrongful act of
the defendant even if the plaintiff was doing a wrongful but unrelated act. For example, in Bird
vs Holbrook 1828, the plaintiff was trespassing on the defendant's property and he was hurt due
to a springgun. The defendant had put spring guns without any notice and was thus held liable.

3. Inevitable Accident
Accident means an unexpected occurance of something that could not have been predicted or
prevented. In such a case, the defendants will not be liable if they had no intention to cause it and
if the plaintiff is injured because of it. For example, in Stanley vs Powell 1891, the plaintiff and
the defendant were members of a shooting party. The defendant shot a bird but the bulled
ricocheted off a tree and hit the plaintiff. The defendant was not held liable because it was an
accident and the defendant did not intent it and could neither have prevented it.

However, the defence of Inevitable Accident is not a license to negligence. For example, A has
hired B's car. While driving, one of the tires bursts and causes accident injuring A. Here, if the
tires were worn out and were in bad condition, it would be negligence of B and he would be held
liable for A's injuries.

4. Act of God
An act of God in a legal sense is an extraordinary occurance of circumstance which could not
have been predicted or prevented and happens because of natural causes. Nobody can predict,
prevent, or protect from a natural disaster such an an earthquake or flood. Thus, it is
unreasonable to expect a person to be liable for damages caused by such acts of God. There are
two essential condtions for this defence - the event must be due to a natural cause and it must be
extraordinary or some thing that could not have been anticipated or expected. For example,
heavy rains in the monsoon are expected and if a wall falls and injures someone, it cannot be
termed an act of god because protection for such expected conditions should have been taken.
But if a building falls due to a massive earhquake and injures and kills people, this defence can
be used.
In Ramalinga Nadar vs Narayan Reddiar AIR 1971, it was held that criminal activities of an
unruly mob is not an act of God.

5. Private Defence
As per section 96 of IPC, nothing is an offence that is done in exercise of the right of private
defence. Thus, law permits the use of reasonable and necessary force in preventing harm to
human body or property and injuries caused by the use of such force are not actionable.
However, the force must be reasonable and not excessive. In Bird vs Hollbrook 1892, the
defendant used spring guns in his property without notice. It was held that he used excessive
force and so was liable for plaintiff's injury even though the plaintiff was trespassing on his
property.

6. Mistake
Generally, mistake is not a valid defence against an action of tort. Thus, hurting a person under
the mistaken belief that he is trespassing on your property, will not be defensible. However, in
certain cases, it could be a valid defence. For example, in the case of malicious prosecution, it is
necessary to prove that the defendant acted maliciously and without a reasonable cause. If the
prosecution was done only by mistake, it is not actionable.
Further, honest belief in the truth of a statement is a defence against an action for deceit.

7. Necessity
If the act causing damage is done to prevent a greater harm, it is excusable. For example, a Ship
ran over a small boat hurting 2 people in order to prevent collision with another ship which
would have hurt hundreds of people is excusable. Thus, in Leigh vs Gladstone 1909, force
feeding of a hunger striking prisoner to save her was held to be a good defence to an action for
battery.

8. Statutory Authority
An act that is approved by the legislature or is done upon the direction of the legislature is
excused from tortious liability even though in a normal circumstances, it would have been a tort.
When an act is done under the authority of an Act, it is a complete defence and the injured party
has no remedy except that is prescribed by the statute.
In Vaughan vs Taff Valde Rail Co 1860, sparks from an engine caused fire in appellant's
woods that existed in his land adjoining the railway track. It was held that since the company was
authorized to run the railway and since the company had taken proper care in running the
railway, it was not liable for the damage.

Ryland vs Fletcher Rule

In certain situations, a person is held liable for the damages caused by his actions even when the
actions are done without any ill intention or negligence on account of equity and justice. For
example, if a person keeps a lion for a pet and despite of all the precautions the lion escapes the
cage and kills someone. In this case, the owner of the lion will be liable even though he had no ill
intention to cause death and had taken all the precautions to keep the lion in the cage. This seems
just because the damage happened only because he brought a dangerous thing on his property.
He was also aware of the consequences if the lion escapes the cage and so he should be made
liable if it escapes and causes damage.

This principle of holding a person liable for his actions without any kind of wrong doing on his
part is called the principle of absolute liability or no fault liability. This principle was first upheld
in the case of Ryland vs Fletcher by the privy council in 1868. However, later on some
exceptions to this were also established due to which "strict liability" is considered a more
appropriate name for this principle. In this case, the defendant hired contractors to build a
reservoir over his land for providing water to his mill. While digging, the contractors failed to
observe some old disused shafts under the site of the reservoir that lead to plaintiff's mine on the
adjoining land. When water was filled in the reservoir, the water flooded the mine through the
shafts. The plaintiff sued the defendant. The defendant pleaded that there was no intention and
since he did not know about the shafts, he was not negligent even though the contractors were.
Even so, he was held liable. J Blackburn observed that when a person, for his own purposes,
brings to his property anything that is likely to cause a mischief if it escapes, must keep it at his
peril and if it escapes and causes damage, he must be held liable. He can take the defence that the
thing escaped due to an act of the plaintiff or due to vis major (act of God) but since nothing of
that sort happened here, then it is unnecessary to inquire what excuse would be sufficient.
To this rule promulgated by J Blackburn, another requirement was added by the Court of
Exchequer Chamber, that the use must be a non-natural use of land as was the case in Ryland vs
Fletcher itself. For example, growing of regular trees is a natural use but growing poisonous trees
is not. Keeping dogs as pet is a natural use but keeping wild beasts is not. Thus, the conditions
when this rule will apply are -
 1. The thing kept must be dangerous - The thing kept on the land must be as such as is
likely to cause mischief if it escapes. For example, storing gas or explosives or wild
beasts are all likely to cause damage if they escape.
2. The thing must escape - If the thing is within the boundary of the defendant's land, he is
not liable. The thing must escape out of his land for him to be liable. In Crowhurst vs
Amersham Burial Board 1878, branches of a poisonous tree were hanging outside the
land of the defendant. Plaintiff's cattle ate them and died. Defendant was held liable
because protrusion of branches out side his property were considered as escaping from
his property. However, in Ponting vs Noakes 1994, when the plaintiff's horse intruded
over his boundary and ate poisonous leaves of the defendant's tree, he was not held liable
because there was no escape.
3. The thing must be a non natural use of land - The use must not be an ordinary use of
the land. There must be a special purpose because of which it brings additional danger to
other. In Noble vs Harrison 1926, a branch of a tree growing on defendant's land broke
and fell on plaintiff's vehicle. It was held that growing regular trees is not a non natural
use of land and the branch fell because of an inherent problem and not because of any
negligence of the defendant and so he was not liable.

As mentioned before the following are exceptions or defenses against this rule -

1. Plaintiff's own default - If the thing escapes due to plaintiff's fault the defendant cannot
be held liable. In Eastern and South African Telegraph Co. Ltd. v Capetown
Tramway Co 1902. the plaintiff's submarine cable transmissions were disturbed
by escape of electric current from defendant's tramway. It was held that since the current
was not causing any problem to regular users and it was causing problem to the cables
only because they were too sensitive and so the defendant cannot be held liable. One
cannot increase his neighbor's liabilities by putting his land to special uses.
2. Act of God - In circumstances where no human has control over, no one can be held
liable. In Nichols vs Marsland 1876, the defendant created artificial lakes to store
rainwater. In that particular year, there were exceptionally heavy rains, which caused the
embankments to break causing floods, which broke defendant's bridges. It was held that
 since there was no negligence on the part of the defendant and the flood happened only
because of rains so heavy that nobody could imagine, the defendant was not liable.
3. Consent of the plaintiff - If the plaintiff has consented for the accumulation of the
dangerous thing, he cannot hold the defendant liable. This is also the case when an
activity is done for mutual benefit. For example, A lives on the ground floor and the
defendant lives on the floor above A's. Now, a water tank is built by the defendant to
supply water for both of them. The defendant will not be held liable for leakage of water
fro m the tank.
4. Act of third party - When a third party, who is not an employee or a servant or a
contractor of the defendant is responsible for causing the dangerous thing to escape, the
defendant will not be held liable for the damage. In Box vs Jubb 1879, the overflow from
the defendant's reservoir was caused by the blocking of a drain by some strangers. The
defendant was held not liable. However, if such act can be foreseen, this defence cannot
be pleaded because the defendant must take precautions to prevent such an act. In M.P.
Electricity Board vs Shail Kumar AIR 2002, a person was killed by a live electric wire
lying on the road. SC applied the rule of strict liability and held that the defence of act of
stranger is not applicable because snapping of wire can be anticipated and the Electricity
Board should have cut off the current as soon as the wire snapped.
5. Statutory Authority - When an act is approved by the legislature or is done on the
direction of the legislature, it is a valid defence for an action of tort even when the rules
of Ryland vs Fletcher apply. However, it is not application when there is negligence.

Position in India
The principle of strict liability is applicable in India as well. For example, Motor Vehicles Act
1938, recognizes no fault liability. Similarly, the liability of a public carrier such as railways
has also been increased from that of a bailee to an insurer. However, there has been a deviation
in the scope of this rule. Depending on the situation, its scope has been increased as well as
decreased by the courts. For example, in Madras Railway Co. vs Zamindar 1974, the water
collected in a pond for agricultural purposes escaped and caused damage to the railway track and
bridges. Here, the application of this rule was restricted because the collection of water in such a
way is a necessity in Indian conditions and so it is a natural use of the land. This mechanism to
store rainwater is used throughout the country and since ages. Therefore, the defendant was not
held liable.

A landmark case in this respect was the case of M C Mehta vs Union of India AIR 1987. In
this case, oleum gas from a fertilizer plant of Shriram Foods and Fertilizers leaked and caused
damage to several people and even killed one advocate. In this case, the rule of Ryland vs
Fletcher was applied. However, the company pleaded sabotage as a defence. SC went one step
further and promulgated the rule of Absolute Liability. It observed that the rule of Ryland vs
Fletcher was a century old and was not sufficient to decide cases as science has advanced a lot in
these year. If British laws haven't progressed, Indian courts are not bound to follow their law and
can evolve the laws as per the requirements of the society. It held that an enterprise that engages
in dangerous substances has an absolute responsibility to ensure the safety of the common
public. It is only the company that can know the consequences of its activities and so it must take
all the steps to prevent any accident. If, even after all precautions, accident happens, the
company still should be made absolutely liable for the damages. The reason being that the
company has a social obligation to compensate the people who suffered from its activity. SC also
laid down that the measure of compensation should depend on the magnitude and capacity of the
enterprise so that it can have a deterrent effect.

Remoteness of Damage
The law allows only those losses which are not too 'remote'. There are two main tests of
remoteness which are applied in tort, namely direct consequences and reasonably foreseeable
consequences.ss

Direct Consequence - Provided some damage is foreseeable, liability lies for all the natural and
direct consequences flowing from the breach of duty. In Re Polemis [1921] 3 KB 560 (CA),
stevedores, who were servants of the defendant, negligently let fall a plank into a ship’s hold
containing petrol in metal containers. The impact of the plank as it hit the floor of the hold
caused a spark, and petrol vapour was ignited. The ship was destroyed. Arbitrators found that the
spark could not have been reasonably foreseen, though some damage was foreseeable from the
impact. The defendant was found liable because the claimant’s loss was a direct, though not
reasonably foreseeable, result.

Reasonable Foreseeability - In The Wagon Mound (No. 1) [1961] AC 388, the defendant
carelessly discharged oil from a ship in Sydney Harbour, and the oil floated on the surface of the
water towards the claimant’s
wharf. The claimant’s servants, who were welding on the wharf, continued their work after being
advised (non-negligently) that it was safe to do so. Sparks from the welding equipment first of all
ignited cotton waste mixed up in the oil; then the oil itself caught fire. The claimant sued for
destruction of the wharf by fire. The defendant was found not liable in negligence, because it was
not reasonably foreseeable that the oil might ignite on water in these circumstances. Damage by
fouling was foreseeable; damage by fire (the case here) was not foreseeable. The Privy Council
said that in the tort of negligence Re Polemiswas no longer good law, and liability
would lie only for foreseeable damage of the kind or type in fact suffered by the claimant.

The profession of a doctor is considered to be the most pious profession and a doctor is respected
in the society as no other professional. A doctor commands immense trust of his patients because
of his ability to cure the patients. Patients literally put their lives in the hands of a doctor. It is
imperative for a doctor that when he holds such a huge influence over his patient, he must not let
him down and give his patient due care and attention. It is the responsibility of the doctor to
follow standard procedures and precautions while treating his patient. Negligence on the part of a
doctor can cause severe hardship for the patient and can even lead to the patients death.

Negligence is a subject of Torts as well as Crime and the law of negligence is certainly
applicable to doctors. In fact, for a long time, until 1992 (when due to a judgment by SC, medical
profession was brought within the ambit of Consumer Protection laws), the law of negligence
was the only remedy for compensation against negligence by a medical professional. A doctor is
liable to Civil as well as Criminal Negligence depending on the situation.

Implied Contract between a Doctor and a Patient

Contract is defined as an agreement between two or more persons which creates an obligation to
do or not to do a particular thing. Contract may be implied or express. An implied contract is
one inferred from conduct of parties and arises where one person renders services under
circumstances indicating that he expects to be paid therefor, and the other person knowing such
circumstances, avails himself of benefit of those services. An express contract is an actual
agreement of the parties, the terms of which are openly uttered or declared at the time of making
it, being stated in distinct and explicit language, either orally (oral agreement ) or in writing
(written agreement).

The doctor-patient contract is almost always of the implied type, except where a written
informed consent is obtained because no formal contract is usually written when a patient visits a
doctor. Thus, it can be said that the relationship between a doctor and his patient is of an implied
contract. Although there is no written or oral explicit contract between them, it is implied that the
doctor is expected to cure the patient and the patient pays fees in consideration. Thus, persons
who offer medical advice and treatment implicitly state that they have the skill and knowledge to
do so, that they have the skill to decide whether to take a case, to decide the treatment, and to
administer that treatment. This is known as an “implied undertaking” on the part of a medical
professional. In case of Dr Laxman Balkrishna Joshi vs Dr Trimbak Bapu Godbole, AIR
1969, the Supreme Court held that a doctor who holds himself ready to give medical advice and
treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such
a person when consulted by a patient, owes him certain duties, viz., a duty of care in deciding
whether to take the case, a duty of care to decide the treatment, and a duty of care while
administering the treatment. A breach of these duties gives a right of action of negligence to the
patient.

When a doctor accepts a patient, he has certain responsibilities towards that patient. It is an
implied contract. A doctor-patient contract requires that the doctor must treat such a person with
reasonable care, reasonable skill. He must not undertake any procedure/ treatment beyond his
skill.

As held in Dr P Luthra vs Iftekhar, while a doctor does not guarantee that he will cure the
patient, he is expected to provide a treatment that is considered apt by medical professionals in
similar situation. If there are multiple opinions about the treatment in given situation, and all are
accepted by various groups of medical professionals, a doctor cannot be said to have erred in
following one of such opinions.

Implied contract is not established when :

(i) the doctor renders first-aid in an emergency ;
(ii) he makes a pre-employment medical examination for a prospective employer;
(iii) he performs an examination for life insurance purpose ;
(iv) he is appointed by the trial court to examine the accused for any reason ; and
(v) when he makes an examination at the request of an attorney for last suit purposes.

Reasonable Care
A doctor must use clean and proper instruments, and provide his patients with proper and
suitable medicines if he dispenses them himself. If not, he should write the prescriptions
legibly,using standard abbreviations and mention instructions for the pharmacist in full. He
should give full directions to his patients as regards administration of drugs and other
measures,preferably in local written language. He must suggest / insist on consultation with a
specialist in the following circumstances :
1. When the case is complicated.
2. When the question arises about performing an operation which may be dangerous to life or
requiring amputation.
3. Operating on a case in which there has been a criminal assault.
4. Performing an operation which may affect the intellectual or reproductive functions of a
patient.
5. In cases where there is suspicion of poisoning or other criminal act.
6. When desired by the patient / attendants.
7. When it appears that the quality of medical service is required to be enhanced.
8. When there is no one from whom informed consent can be obtained.

Reasonable Skill
The degree of skill a doctor undertakes is the average degree of skill possessed by his
professional brethren of the same standing as himself. The best form of treatment may differ
when different choices are available. There is an implied contract between the doctor and the
patient when the patient is told in effect : "Medicine is not an exact science. I shall use my
experience and best judgment and you take the risk that I may be wrong. I guarantee nothing."

Not to undertake any procedure beyond his skill - This depends upon his qualifications, special
training and experience. The doctor must always ensure that he is reasonably skilled before
undertaking any special procedure / treating a complicated case. To quote an example, a doctor
who is not sufficiently trained or qualified should not administer anesthesia.

Professional Secrets
A professional secret is one which a doctor comes to learn in confidence from his patients, on
examination, investigations or which is noticed in the ordinary privacies of domestic life. A
doctor is under a moral and legal obligation not to divulge any such secret except under certain
circumstances. This is known as privileged communication which is defined as a communication
made by a doctor to a proper authority who has corresponding legal, social and moral duties to
protect the public. In must be bona fide and without malice, e.g., as a witness in a court of law;
warning partners or spouses of AIDS patients and those found infected with HIV; informing
public health authorities of food poisoning from a hotel etc; assisting apprehension of a person
who has committed a serious crime ;informing law enforcers about medico-legal cases, etc.

Civil Negligence
Since it is established that there exists an implied contract between a doctor and a patient, a
medical practioner is obligated to fulfill his part of the contract. A question of civil negligence
arises when a patient dies or is injured while in care of a doctor and the patient or his
representative sue the doctor for compensation. In such cases, it is up to the plaintiff to prove that
-
1. The defendant owed him a duty to a particular standard of conduct.
2. The defendant was derelict and failed to perform that duty.
3. The plaintiff suffered actual damage.
4. The conduct of the defendant was the direct or proximate cause of the damage.
In certain cases, the principle of Res ipsa loquitor i.e. situation speaks for itself, applies. For
example, in several cases that involved articles left in the body of the patient after a surgery, it
has been held that it cannot happen without the doctor being negligent. In such cases, it is not
necessary for the plaintiff to prove the negligence of the doctor. The applicability of this
principle rests on three conditions -
1. The situation must be such that it cannot happen without negligence.
2. The plaintiff must not have added to his own injury.
3. The defendant must have been in total and exclusive control of the situation.

Criminal Negligence
The question of criminal negligence arises in case death or serious injury to a patient caused by
criminal negligence. In case of a death, a doctor may be charged under Section 304-A of IPC,
which makes it an offence to cause death of any person by doing any rash or negligent act. In
case of serious injury, he may also be charged under Section 336 - Act endangering life or
personal safety of others, Section 337 - Causing hurt by act endangering life or personal safety
of others
and Section 338 - Causing grievous hurt by act endangering life or personal safety of others.

For the above to happen, the degree of negligence has to be so grave as to go beyond
compensation and must be penalized because it causes harm not just to the victim but to the
society as well. Conduct that disregards the life and safety of the patient deserves punishment.

SC, in the case of Dr. Suresh Gupta, Aug 2004, gave guidelines on when a doctor may be held
as criminally liable. It held that the standard of negligence that had to be proved to fix a doctor’s
or surgeon’s criminal liability was set at “gross negligence” or “recklessness.” It distinguished
between an error of judgment and culpable negligence. It held that criminal prosecution of
doctors without adequate medical opinion pointing to their guilt would do great disservice to the
community. A doctor cannot be tried for culpable or criminal negligence in all cases of medical
mishaps or misfortunes. A doctor may be liable in a civil case for negligence but mere
carelessness or want of due attention and skill cannot be described as so reckless or grossly
negligent as to make her/ him criminally liable. The courts held that this distinction was
necessary so that the hazards of medical professionals being exposed to civil liability may not
unreasonably extend to criminal liability and expose them to the risk of imprisonment for alleged
criminal negligence.

Hence the complaint against the doctor must show negligence or rashness of such a degree as to
indicate a mental state that can be described as totally apathetic towards the patient. Such gross
negligence alone is punishable.

However, on September 9, 2004, Justices Arijit Pasayat and CK Thakker referred the question
of medical negligence to a larger Bench of the Supreme Court. They observed that words such as
“gross”, “reckless”, “competence”, and “indifference” did not occur anywhere in the definition
of “negligence” under Section 304A of the Indian Penal Code and hence they could not agree
with the judgement delivered in the case of Dr Suresh Gupta.

The issue was decided in the Supreme Court in the case of Jacob Mathew vs State of Punjab
AIR 2004. In this case, the court directed the central government to frame guidelines to save
doctors from unnecessary harassment and undue pressure in performing their duties. It ruled that
until the government framed such guidelines, the following guidelines would prevail:
A private complaint of rashness or negligence against a doctor may not be entertained without
prima facie evidence in the form of a credible opinion of another competent doctor supporting
the charge. In addition, the investigating officer should give an independent opinion, preferably
of a government doctor. Finally, a doctor may be arrested only if the investigating officer
believes that she/ he would not be available for prosecution unless arrested.

Thus, the negligence is so great as to go beyond matter of mere compensation. Not only has the
doctor made a wrong diagnosis and treatment, but also that he has shown such gross ignorance,
gross carelessness or gross neglect for the life and safety of the patient that a criminal charge is
brought against him. For this he may be prosecuted in a criminal court for having caused injury
to or the death of his patient by a rash and negligent act amounting to culpable homicide under
Section 304-A of the Indian Penal Code. Some examples are as follows:
1. Injecting anesthetic in fatal dosage or in wrong tissues.
2. Amputation of wrong finger, operation on wrong limb,removal of wrong organ, or errors in
ligation of ducts.
3. Operation on wrong patient.
4. Leaving instruments or sponges inside the part of body operated upon.
5. Leaving tourniquets too long, resulting in gangrene.
6. Transfusing wrong blood.
7. Applying too tight plaster or splints which may cause gangrene or paralysis.
8. Performing a criminal abortion.

Patient as a Consumer
In the past two decades, medical field has seen tremendous rise in terms of doctors, nursing
homes, hospitals, and also the patients because of population explosion. With the rise of
commercialization of medical services, the society has witnessed a sharp rise in cases of
negligence by medical professionals. Although medical professionals are governed by Medical
Councils, who have the power to suspend or revoke the license of a medical practioner upon
such negligence, the medical councils do not have any power to provide any compensation to the
victim of a doctor's negligence. Since negligence is generally covered under Law of Torts, this
necessitated the aggrieved parties to approach Civil Courts for damages. This is a time
consuming and expensive process, which very few had the ability to avail. Thus, there was an
urgent need to curb the irresponsible attitude of the medical professionals as well as to provide
faster relief to victims of medical negligence.

Consumer Protection Act, 1986, was a landmark act that gave power to the consumers in cases of
being cheated by businesses providing any kind of services. However, this act did not explicitly
include Medical services. It must be noted that a doctor does not perform out of altruism. He
charges fees for his services and in this respect, a patient is a consumer of his services. This is
the basic premise which was observed by the Supreme Court of India in the case of Indian
Medical Association vs V P Shantha, AIR 1995. In this case, SC held that doctors, hospitals,
and nursing homes who render service as medical practitioner are accountable for any act of
medical neglect and they can be sued for compensation under Consumer Protection Act, 1986.
As a result of this judgment, medical profession was brought under the Section 2(1) (o) of CPA,
1986. It has included the following categories of doctors/hospitals under this Section:

1. All medical/dental practitioners doing independent medical/dental practice unless

rendering only free service.
2. Private hospitals charging all patients.
3. All hospitals having free as well as paying patients and all the paying and free category
patients receiving treatment in such hospitals.
4. Medical / dental practitioners and hospitals paid by an insurance firm for the treatment of
a client or an employment for that of an employee.

It exempts only those hospitals and the medical / dental practitioners of such hospitals which
offer free service to all patients. Further, this judgment concedes that the summary procedure
prescribed by the CPA would suit only glaring cases of negligence and in complaints involving
complicated issues requiring recording of the evidence of experts, the complainant can be asked
to approach the civil courts. Also, this judgment says that the deficiency in service means only
negligence in a medical negligence case and it would be determined under CPA by applying the
same test as is applied in an action for damages for negligence in a civil court. As a result of this
judgment, virtually all private and government hospitals and the doctors employed by them and
the independent medical / dental practitioners except primary health centers, birth control
measures, anti malaria drive and other such welfare activities can be sued under the CPA.

Duties/Obligations of a Doctor

Duties and obligations of doctors are enlisted in ordinary laws of the land and various Codes of
Medical Ethics and Declarations - Indian and International, which are :
(i) Code of Medical Ethics of Medical Council of India ;
(ii) Hippocratic Oath ;
(iii) Declaration of Geneva ;
(iv) Declaration of Helsinki;
(v) International Code of Medical Ethics ;
(vi) Government of India Guidelines for Sterilization.

On the basis of these various Codes of Ethics and Declarations, the duties can be summarized as
under -

1. Duties to Patient.
2. Duties to Public.
3. Duties towards Law Enforcers.
4. Duties not to violate Professional Ethics.
5. Duties not to do anything illegal or hide illegal acts.
6. Duties to each other.

Duties to Patient - These are : Standard Care, Providing Information to the Patient /Attendant ,
Consent for Treatment, and Emergency Care. The first duty of a doctor towards his patient is to
provide the patient with due skill, care, and attention. In the case of the State of Haryana vs
Smt Santra, AIR 2000, the Supreme Court held that every doctor “has a duty to act with a
reasonable degree of care and skill”. While it is not possible to lay down precise standards of
medical skill and care, it can be reasonably said that the skill and care that is provided by an
average doctor is what any doctor can be expected to provide to his patients.

(A) Standard Care - This means application of the principles of standard care which an average
person takes while doing similar job in a similar situation :

1. Due care and diligence of a prudent Doctor.

2. Standard, suitable, equipment in good repair.
3. Standard assistants : Where a senior doctor delegates a task to a junior doctor or paramedical
staff, he must assure himself that the assistant is sufficiently competent and experienced to do the
job, and fulfills the prescribed qualifications.
4. Non-standard drug is a poison by definition.
5. Standard procedure and indicated treatment and surgery.
6. Standard premises, e.g. Nursing Home, Hospital , must comply with all laws applicable as
imposed by the State and these must be registered wherever required.
7. Standard proper reference to appropriate specialist.
8. Standard proper record keeping for treatment given,surgery done, X-ray and pathological
reports.
9. Standard of not to experiment with patient ( See Declaration of Helsinki in Appendix IV).
10. Anticipation of standard risks of complications and preventive actions taken in time.
11. Observe punctuality in consultation.

(B) Duty to provide information to patient / attendant

1. Regarding necessity of treatment.

2. Alternative modalities of treatment.
3. Risks of pursuing the treatment, including inherent complications of drugs, investigations,
procedure,surgery etc.
4. Regarding duration of treatment.
5. Regarding prognosis. Do not exaggerate nor minimize the gravity of patient’s condition.
6. Regarding expenses and break-up thereof.

(C) Consent for treatment - Must obtain consent before any operation.

(D) Emergency Care - A doctor is bound to provide emergency care on humanitarian grounds,
unless he is assured that others are willing and able to give such care. It may be noted that prior
consent is not necessary for giving emergency / first-aid treatment. In emergency medico-legal
cases, condition of first being seen by medical jurist is not essential.

(E) Duty to warn - The doctor must warn the patient of any known or possible side effects of a
drug, device, or operation. Failure to do so renders the doctor liable for the harm suffered by the
patient.

10. Information given by patient /attendant to be kept as secret. Not to be divulged to employer,
insurance company, parents of major son/daughter without consent of patient. Even in court this
information is given only if ordered by the Court.
11. Recovering any money ( in cash or kind) in connection with services rendered to a patient
other than a proper professional fee, even with the knowledge of the patient.

5. Duty not to do anything illegal or hide illegal acts

1. Perform illegal abortions / sterilization’s

2. Issue death certificates where cause of death is not known.
3. Not informing police a case of accident, burns,poisoning, suicide, grievous hurt, gas gangrene.
4. Not calling Magistrate for recording dying declaration.
5. Unauthorized, unnecessary , uninformed treatment and surgery or procedure.
6. Sex determination (in certain States).