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Theories of Negligence
negligence is a state of mind (subjective theory)
it is merely a type of conduct (objective theory).
(1) Subjective theory - It is given by Salmond. His view is that negligence is culpable
carelessness. Although negligence is not the same as thoughtlessness or inadvertence,
it is nevertheless essentially an attitude of indifference.
Negligence essentially consists in the mental attitude of undue indifference with
respect to one’s conduct and its consequences. A person is made liable on the ground
of negligence because he does not sufficiently desire to avoid a particular
consequence - a harm. He is careless about the consequence and does the act
notwithstanding the risk that may ensue. Winfield, an advocate of this theory, says
that ‘as a mental element in tortious liability, negligence usually signifies total or
partial inadvertence of the defendant to his conduct and for its consequences’
(2) Objective theory - It is given by Pollock. His view is that negligence is an objective
fact. It is not a particular state of mind or form of the mens rea at all, but a particular
kind of conduct. Negligence is a ‘breach of duty to take care’, and to care means to
take precautions against the harmful results of one’s actions and to refrain from
unreasonably dangerous kinds of conduct. To drive at night without lights is
negligence, because to carry lights is a precaution taken by all reasonable and prudent
men for the avoidance of accidents. Pollock says that ‘negligence is the contrary of
diligence, and no one describes diligence as a state of mind’. So it is never a mental
state. This view obtains strong support from the law of tort, where it is clearly settled
that negligence means a failure to achieve the objective standard of the reasonable
man. If the defendant has failed to achieve this standard it is no defence for him to
show that he was anxious to avoid doing harm and took the utmost care of which he
was capable.
(3) Reconciliation of the two views
Negligence is sometimes used in one sense (subjective) and sometimes it is used in
the other sense (objective) and, therefore, its meaning depends upon the context in
which it is used. When negligence is contrasted with intention, it is used in the
subjective sense. As the wrongful intention is a state of mind, negligence is also a
state of mind. Cases of negligence, on examination of the defendant’s mind, turn out
to be the cases of wrongful intention. If a father who neglects to provide food to his
infant child and if the child dies, the father may be guilty of wilful murder rather than
of mere negligence. In these cases one can’t distinguish between wrongful intention
and negligence without looking into the mind of the wrongdoer, and observing his
mental or subjective attitude towards his act and its consequences. If one tries to judge
them objectively, the two classes of offences are indistinguishable. The subjective
theory then has the merit of making clear the distinction between intention and
negligence.
The wilful wrongdoer desires the harmful consequences, and therefore does the act in
order that they may ensue. INTENTION
The negligent wrongdoer does not desire the harmful consequences, but in many
cases is careless whether they does the act notwithstanding the risk that may ensue –
NEGLIGENCE
 He is liable only when he has not taken the care which a reasonable man would have
taken. In such cases the state of mind of the wrongdoer is irrelevant and everything is
judged objectively.
Negligence can be defined according to the two theories
Negligence means “careless conduct in commission or omission of an act, whereby
another to whom the plaintiff owed duty of care has suffered damage.
Mis-feasance (positive action) is wilful, reckless or heedless conduct in commission
of a positive act lawfully done but with improper conduct.
Non-feasance (omission) means non performance of some act which ought to be
performed or omission to perform required duty or total neglect of duty.
Negligence is also of two kinds:
(a) Advertent negligence - It is called wilful negligence or recklessness also. In this
negligence, the harm done is foreseen as possible or probable, but it is not willed. For
example, a person who drives furiously in a crowded street and causes injury or harm
to persons commits it by advertent negligence. For legal purposes, such negligence is
classed with intention.
(b) Inadvertent or simple negligence - It is a result of ignorance, thoughtlessness or
forgetfulness. In such negligence the harm caused is neither foreseen nor wilful. For
example, a doctor who treats a patient improperly through negligence
Difference of negligence in torts and crime (in doc)
ESSENTIALS OF NEGLIGENCE
The plaintiff has to prove the following essentials:
(1) That the defendant owed duty of care to the plaintiff.
The law basically sets up an objective standard here against which the defendant’s conduct is
measured.
(2) The defendant made a breach of the duty i.e. he failed to exercise due care and skill.
(3) Plaintiff suffered damage as a consequence thereof
DUTY OF CARE TO THE PLAINTIFF
An action for negligence proceeds upon the idea of an obligation or duty on the part of the
defendant to use care, a breach whereof results in the plaintiff’s injury. It is not necessary that
the duty neglected should have arisen out of a contract between the plaintiff and the
defendant. However, the duty may arise by a statute or otherwise.
For example, if a man is driving on a barren plain, and no other person is near him, he is at
liberty to drive as fast and as recklessly as he pleases. But if he sees another carriage coming
near to him, immediately a duty arises not to drive in such a way as is likely to cause an
injury to that other carriage
(i) Legal Duty
‘Duty of care’ means a legal duty rather than mere moral, religious or social duty.
In the absence of such legal duty, negligence in the popular sense has no legal
consequences. It is not sufficient to show that the defendant was careless; the
plaintiff has to establish that the defendant owed to the plaintiff a specific legal
duty to take care. It depends on each case whether a duty exists.
Duty is an obligation recognized by law to avoid conduct fraught with
unreasonable risk of damage to others.
CASE: Donoghue v Stevenson (Snail in the bottle case) (Lord Atkin)
English Law of negligence was affirmed by house of Lords
In the present case, the appellant plaintiff (Donoghue) drank a bottle of ginger beer which
was brought from a retailerby her friend. The bottle in fact contained the decomposed body of
snail, which was found out by her when she had already consumed a part of the contents of
the bottle. The bottle was of dark opaque glass sealed with a metal cap so that its contents
could not be ascertained by inspection. The plaintiff brought an action against the
manufacturer of beer (Stevenson) to recover damages which she suffered due to serious
effects on her health by shock and severe gastro-enteritis.
The plaintiff claimed that it was defendant’s duty to have a system of work and inspection
sufficient to prevent snails from getting into ginger beer bottles.
The suit was defended on the following grounds:
(1) that the defendant did not owe any duty of care towards the plaintiff
(2) that the plaintiff was a stranger to the contract and thus her action was not maintainable.
The House of Lords rejected both the pleas of the defendant and held that the manufacturer of
the bottle was responsible for his negligence towards the plaintiff. It was the duty of the
manufacturer to use reasonable diligence to ensure that the bottle did not contain any noxious
or dangerous matter.
A manufacturer of products, which he sells in such form as to show that he intends them to
reach the ultimate consumer in the form in which they left him with no reasonable possibility
of intermediate examination and with the knowledge that the absence of the reasonable care
in the preparation or putting up of the products will result in an injury to consumer’s life or
property, owes a duty to the customer to take that reasonable care.
One must take reasonable care to avoid acts or omissions which one can reasonably foresee
would be likely to injure your neighbour. Neighbor, in law, is a person/entity that is closely
and directly affect by one’s act.
Comments - This case thus established that the doctrine of privity of contract do not apply to
a tort action. Thus, the same facts may give rise to both a contractual as well as a tortuous
liability. However, in such cases, it is wrong to assume that just because A is bound by a
contract to B, therefore, the harm resulting from A’s breach of that contract to C, a third party,
can never give rise to a liability in tort on A’s part to C
(ii) Reasonable Foreseeability of Injury
Whether the defendant owes a duty to the plaintiff or not depends on reasonable
foreseeability of the injury to the plaintiff. In other words, the duty to take care
arises as soon as there is reasonable probability of danger from the defendant’s
conduct.
In Heaven v Pender, held that the duty arises only if a person is near to the person
or property of another.
Standard of a reasonable man - A useful test to decide culpability is to determine
what a ‘reasonable man’ (i.e. a man of ordinary prudence or intelligence) would
have foreseen and behaved under the circumstances. The standard of foresight of
the reasonable man is an impersonal or objective test as it is independent of the
 idiosyncrasies (patterns of behaviour) of the particular person whose conduct is in
question
The reasonable man is presumed to be free both from over-apprehension and from
overconfidence. He is a person who is not in a hurry, but is cool and collected and
remembers to take precaution for his own safety even in an emergency
But it’s subjective as it’s the judge who decides what a reasonable man is supposed to do
in that particular case.
Safdar Husain v Union of India
a Head Clerk of Northern Railway, kept the cash-on-hand in an iron safe in his office
room, placed the key of the safe in a hidden place inside a wooden almirah and locked it
with his own lock. On returning to duty the next day, he found that the almirah lock had
been broken open and the entire cash was gone. The question was whether he could be
said to be guilty of negligence. Held, that the railway authorities had not provided any
place for keeping the key of the safe by its employees when home, and that Clerk’s act in
keeping the safe-key in hidden place in a locked almirah rather than in his personal
custody, according to the consistent practice of Chief Booking Clerks, did not amount to
gross negligence, so as to render him liable. In fact, he had exercised all the care which
was expected of a prudent and reasonable person in the circumstances.
Rural Transport Service v Bezlum Bibi
the conductor of an overloaded bus invited passengers to travel on the roof of the bus. On
the way the bus swerved on the right side to overtake a cart. One of the passengers on the
roof of the bus was struck by an overhanging branch of a tree. He fell down and died
+because of injuries. Held, that there was negligence on the part of both the driver and
conductor of the bus. The court observed that inviting passengers to travel on the top of a
overcrowded bus is itself a rash and negligent act and that apart when passengers were
being made to travel on the roof a great amount of care and caution on the part of the
driver was called for which he failed to show by swerving on the right so close to a tree
with over-hanging branch
In Sushma Mitra v M.P. State Road Transport Corpn.
the plaintiff was resting her elbow on the widow sill. A truck coming from the opposite
direction hit her in her elbow as a result of which she received severe injuries. It was held
that the habit of resting elbow on the widow of the bus is so common that it must enter in`
to contemplation of a reasonable driver. It is the duty of the driver to pass on the road
at a
\
`AQasonable distance from the other vehicles.
(iii) When the Defendant is Not Liable for Negligence
(a) When the injury to the plaintiff is not foreseeable, then the defendant is not liable. In
Cates v Mongini Bros. due to some latent defect in the suspension rod of a ceiling fan
fixed in the defendant’s restaurant, it fell on the plaintiff and she was injured. It was
held that since the defendants could not foresee the harm, they were not liable.
(b) To establish negligence, it is not enough to prove that the injury was foreseeable, but a
reasonable likelihood of the injury has also to be shown. Reasonable foreseeability
 does not mean remote possibility. If the possibility of danger emerging is only a mere
possibility which could never occur to the mind of a reasonable man, then there is no
negligence in not having taken extraordinary precautions
(c) When the defendant owed a duty of care to persons rather than the plaintiff, the
plaintiff cannot sue even if he might have been injured by the defendant’s act. Thus,
the duty must be owed to the plaintiff. There must be proximity in relationship i.e.
parties are so related that it is just and reasonable that the duty shall exist. In other
words, the relationship between the parties must have been such that the defendant
like a reasonable man ought to have the plaintiff in contemplation while doing the acts
of which the complaint is made. The test of proximity may be described as
foreseeability of a reasonable man
n Palsgraf v Long Island Railroad Co
a passenger carrying a package was trying to board a moving train. He seemed to be
unsteady as if about to fall. A railway guard, with an idea to help him, pushed him from
behind. In this act, the package (of fire works) fell resulting in an explosion, as a result of
which the plaintiff was injured.
Plaintiff must show that some wrong was done to herself, i.e., that there was a violation of
her own rights, not merely a wrong done to someone else. In this case, there was nothing to
indicate that the package contained fireworks, and if dropped, would cause an explosion.
The guards, who were assisting the passenger on the train, were negligent in doing so, and
caused the package to be dislodged, which fell causing an explosion. The explosion caused
some scales at the other end of the platform to fall, striking Plaintiff. The guards were not
negligent in relation to the Plaintiff, who was standing far away when the package was
dropped. If the court had decided that Defendant was negligent in respect to the Plaintiff,
then the majority concludes that a defendant would be liable for any and all consequences
of its negligence, “however novel or extraordinary.”
Breach of Duty
It means not taking due care which is required in a particular case. The law requires
taking of two points into consideration to determine the standard of care required:
(i) The importance of the object to be attained-
The law does not require greatest possible care but the care required is that of a
reasonable man under certain circumstances. The law permits taking chance of some
measure of risk so that in public interest various kinds of activities should go on.
In Latimer v A.E.C. Ltd. (1953) A.C. 643, due to heavy rain a factory was flooded with
water, which got mixed with some oily substance. The floors in the factory became
slippery. The factory owners spread all the available sawdust but some oily patches still
remained there. The plaintiff slipped and was injured. He sued the defendants and
contented that, as a matter of precaution the factory should have been closed down. Held,
that the risk created was not so great as to justify that precaution. The defendants had
acted reasonably and, therefore, they were not liable.
(iii) The magnitude of the risk- The degree of care varies according to the likelihood of
harm and seriousness of injury. A person handling a loaded gun is expected to take
more care than a person carrying an ordinary' stick. The driver of a vehicle has to
observe greater care when he is passing through a school zone, or he finds a blind
man, a child or an old man.
In Nitin Walia v Union of India
a child visitor of Delhi zoo aged 3 years put his hand inside the iron bars where a
tigress was kept and his hand was crushed by the tigress. It was held that the zoo
 authorities should’ve put iron mesh on the rods and were liable in damages for the
injury and the child was not guilty of any contributory negligence.
Glasgow Corporation v Taylor
poisonous berries were grown in a public garden under the control of the
defendant corporation. The berries looked like cherries. A child, aged 7, ate those
berries and died. It was found that the shrub bearing the berries was neither
properly fenced nor a notice regarding poisonous berries was displayed. Held that
the defendants had not taken proper care and so were liable
(4) Damages
It is also necessary that the defendant’s breach of duty must cause damage to the
plaintiff. The plaintiff has also to show that the damage thus caused is not too remote
a consequence of the defendant’s negligence
RES IPSA LOQUITUR (Proof of Negligence) THE THING SPEAKS FOR
ITSELF
As a rule, the onus of proving negligence is on the plaintiff. He must not merely
establish the facts of the defendant’s negligence and of his own damage, but must
show that the one was the effect of the other
When the accident explains only one thing i.e. the accident could not ordinarily occur
unless the defendant had been negligent the law raises a presumption of negligence on
the part of the defendant. In such a case, it is sufficient for the plaintiff to prove
accident and nothing more
Shift takes place of proving negligence from plaintiff to defendant
Important points
(1) By applying this maxim the burden of proof is shifted from the plaintiff to the
defendant
(2) (2) The maxim applies when-
(i) the injurious agency was under the management or control of the defendant
(ii) the accident is such as in the ordinary course of things, does not happen if
those who have the management use proper care.
In Byrne v Boadle
the plaintiff was going in a public street when a barrel of flour fell upon him from the
defendant’s warehouse window. There was no evidence on the part of the plaintiff as
to how the accident happened, beyond the facts that, while on the road, he was
knocked down by the barrel, became unconscious and was injured. Want of care on
the part of the defendants was presumed and it was for him to show that the same was
not for want of care on his part, for the barrels do not usually fall out from windows
unless there is want of care
because such things do nopt fall unless there’s negligence on the part of the defendant

: MUNICIPAL CORPN., DELHI v SUBHAGWANTI9 (“CLOCK-TOWER CASE")

In this case, due to the collapse of the Clock Tower situated opposite to Town Hall in
the main bazar of Chandni Chowk, Delhi, a number of persons died. The Clock Tower
belonged to the Municipal Corporation of Delhi and was exclusively under its control.
The trial court held that it was the duty of Municipal Committee to take proper care of
the building so that they should not prove a source of danger to the persons using the
highway as a matter of right.

The High Court held that the principle of res ipsa loquitur applied to case and that it
was the duty of the Municipal Committee to carry out the periodical examination for
 the purpose of determining whether deterioration had taken place in the structure of
building and whether any precaution was necessary to strengthen it.
The court found from the evidence that apart from superficial examination from time
to time, there was no evidence of an examination ever made with a view to seeing if
there were any latent defects making the building unsafe
Appeal to SC
It was held that the High Court was right in applying the doctrine of res ipsa loquitur
in the circumstances of the present case. The clock tower belonged to the Municipal
Corporation and was exclusively under its control. It was 80 years old but the normal
life of the structure of the top storey of the building, could be 40-45 years. The mortar
had no cementing properties
And there was no case of earthquake, or storm or any other natural event

The breach of duty created by a statute, if it results in damage to an individual prima

facie, it is tort for which the action for damages will lie in the suit. The statutory
negligence is sui generis and independent of any other form of tortious liability.
The plaintiff must show that (a) the injury suffered is within the ambit of statute, (b)
statutory duty imposes a liability for civil action, (c) the statutory duty was not
fulfilled, and (d) the breach of duty has caused him injury
there must exist some proximity of relationship, foreseeability of danger and duty of
care to be performed by the defendant towards the plaintiff. It would be wrong to
think that the local/statutory authority always owes responsibility and continues to
have the same state of affairs. It would be an intolerable burden of duty of care on the
authority.
In Municipal Corpn., Delhi v Sushila Devi
the plaintiff passing by the road died due to injury sustained by the fall of a branch of
a tree. The Corporation was sued. The court found the Corporation liable and
observed that the law is well settled that if there is a tree standing on the defendant’s
land which is dried or dead and for that reason may fall or the defect is one which is
either known or should have been known to the defendant then the defendant is liable
for any injury caused by the tree’s fall. The injury was caused due to non-action of the
municipality. It is no defence to say that the Corporation had employed a competent
person to keep

Contributory negligence of the plaintiff

The third defence to an action for negligence is that of the contributory negligence of
the plaintiff himself. In certain circumstances a person who has suffered an injury will
not be able to get damages from another for the reason that his own negligence has
contributed to his injury; every person is expected to take reasonable care of himself.
Thus when the plaintiff by his own want of care contributes to the damage caused by
the negligence or wrongful conduct of the defendant, he is considered to be guilty of
contributory negligence.
For example, a pedestrian tries to cross the road all of a sudden and is hit by a
moving vehicle, he is guilty of contributory negligence. In this case, the defendant
could completely escape his liability for the accident, on account of the plaintiff’s
negligence which contributed to his injury. Take another case, if the conductor of a
bus invites passengers
PROFESSIONAL LIABILITY FOR NEGLIGENCE
 Every person who enters into a learned profession undertakes to bring to the exercise of it
such care and skill as becomes one belonging to that profession
Liability of Advocates for Negligence Barristers and Solicitor Advocates till recently were
immune under the English law from being sued for professional negligence. But the House of
Lords in Arthur J.S. Hall & Co. v Simons took away this immunity on the ground that neither
public policy nor public interest now justified its continuance.
In India, a legal practitioner (an advocate, vakil or attorney of any High Court, a pleader,
mukhtar or revenue agent) is liable for any negligence in the conduct of his professional
duties.
Bankers
Bankers are liable for negligence in paying forged cheques. They are bound to exhibit skill in
detecting such forgeries. If a man should lose his cheque-book or neglect to search the desk in
which it is kept, and a servant or stranger should take it up, it is impossible to contend that a
banker paying his forged cheque would be entitled to charge his customer with that payment.
In Young v. Grote, it was held that negligence on the part of a customer in drawing a cheque
disentitled the customer from recovering the extra amount which was paid by the banker
owing to the cheque being forged afterwards. The House of Lords have affirmed its principle
by holding that a customer of a bank owes a duty to the bank in drawing a cheque to take
reasonable and ordinary precautions against forgery, and if, as the natural and direct result of
the neglect of those precautions the amount of the cheque is increased by forgery, the
customer must bear the loss as between himself and the banker. 638But it must be shown in
order to hold the customer liable for negligence in drawing cheques, that there was a breach
of duty by the neglect of some usual and proper precautions.
Another duty which a customer owes to his bankers is that he must inform the bank of any
unauthorised cheques purportedly drawn on the account as soon as he, the customer, becomes
aware of it. The existence of both these duties under the English law has been affirmed by the
Privy Council, but it has further been held that the customer is not under a duty to take
reasonable precautions in the management of his business with the bank to prevent forged
cheques being presented for payment nor is he under a duty to check his periodic bank
statements so as to enable him to notify the bank of any unauthorised debit items. In this case,
an accounts clerk of the plaintiff forged the signature of the Managing Director of the
plaintiff on 300 cheques purporting to be drawn by the company between 1972 and 1978 and
these cheques were paid by the defendant bank on presentation. The plaintiff's system of
internal financial control from the point of view of detecting fraud was unsound and
inadequate yet the defendant bank was held liable. Where a bank offered to give expert
advice on investments to its customers and loss was occasioned to a customer by advice
given by the manager of the bank which advice was given without ordinary care and skill that
a bank manager should possess and exercise the bank was held liable for loss. 644 The
Calcutta High Court has held that where a banker makes a payment on a forged cheque, he
cannot make the customer liable except on the ground of negligence imputable to the
customer.
If the signatures on the cheque or at least that of one of the joint signatories to the cheque are
not or is not genuine, there is no mandate on the bank to pay. In such a case the question of
any negligence on the part of the customer, such as leaving the cheque book carelessly so that
a third party can easily get hold of it can afford no defence to the bank. 646In action in not
examining the accounts Page 667 sent by the Bank when the customer had no knowledge of
the forgery, cannot defeat his claim against the Bank who has made payment on a forged
cheque.
Delivery of goods to wrong person .--Where the banker delivers the goods received by it on
behalf its customer to a wrong person whereby they are lost to the customer, "the liability of
the bank is absolute, though there is no element of negligence, as where the delivery is
obtained by means of an artfully forged order. In law banker could contract out of this
liability but he would be unlikely to do so in practice.

Medical Negligence
A doctor when consulted by a patient owes him certain duties, viz. a duty of care in deciding
whether to undertake the case, a duty of care in deciding what treatment to give and a duty of
care in the administration of that treatment. A breach of any of those duties gives a right of
action for negligence to the patient
In an action for negligence against a doctor, the plaintiff has to prove three things.-
(i) that the doctor was under a duty to take reasonable care towards the plaintiff, to avoid the
damage complained of, or not to cause damage to the patient by failure to use reasonable
care|
(ii) that there was a breach of such duty on the part of the doctor
(iii) that such breach of duty was the real cause of the damage complained of, and such
damage was reasonably foreseeable
Bolam v Friern Hospital Management Committee
the court observed: “The test is the standard of the ordinary skilled man exercising and
professing to have that special skill. In the case of a medical man, negligence means failure to
act in accordance with the standards of reasonably competent medical men at the time.
led to formation of Bolam Test
A professional man should command the corpus of knowledge which forms part of the
professional equipment of the ordinary members of his profession. He should not lag behind
other ordinary assiduous and intelligent members of his profession in the knowledge of new
advances, discoveries and developments in his field. He should have such awareness as an
ordinarily competent practitioner would have of the deficiencies in his knowledge and the
limitations on his skill. He should be alert to the hazards and risks in any professional task he
undertakes to the extent that other ordinarily competent members of the profession would be
alert.
Phillips India Ltd. v Kunju Punnu
plaintiff’s son, who was treated for illness by the defendant company’s doctor, died. The
plaintiff in her action contended that the doctor was negligent and had given wrong treatment.
The court observed that the standard of care which the law requires is not an insurance
against accidental slips. It is such degree of care as a normal skilful member of the profession
may reasonably be expected to exercise in actual circumstances of the case in question. It is
not every slip or mistake which imports negligence. Held that the plaintiff could not prove
that the death of her son was due to negligence of the doctor and, therefore defendants could
not be made liable
In State of Punjab v Shiv Ram
it was held that a claim in tort in case of medical negligence can be sustained only if there is
negligence on part of the surgeon performing the surgery. Merely because a woman having
undergone sterilization operation becomes pregnant and delivers a child, the operating
surgeon cannot be held liable for compensation. Failure due to natural causes would not
provide any ground for a claim. It is for the woman who has conceived the child to go or not
to go for medical termination of pregnancy. If the couple opts for bearing the child it ceases
to be an unwanted child. Compensation for maintenance and upbringing of such a child
cannot be claimed.
PINNAMANENI NARASIMHA RAO v GUNDAVARAPU JAYAPRAKASU
In this case, the plaintiff, a student aged 17 years, suffered irreparable damage in the brain
due to negligence of the surgeon and the anesthetist. In this case, a proper diagnosis was not
done; the plaintiff had a minor ailment- chronic nasal discharge, and it was diagnosed as
nasal allergy requiring operation for removal of tonsils. If the surgeon had not performed the
operation, there was every possibility of the plaintiff being saved from the brain damage.
Although the surgeon was aware that the plaintiff had respiratory arrest, still he carried on the
operation merely because the anesthetist informed him that the patient is fit for the operation.
The anesthetist was also negligent in so far as he failed to administer respiratory resuscitation
by oxygenating the patient with a mask/ bag, which is an act of per se negligence in the
circumstances.
A person engaged in some particular profession is supposed to have the requisite knowledge
and skill needed for the purpose and he has a duty to exercise reasonable degree of care in the
conduct of his duties- observation
A patient is a “consumer” and the medical assistance a “service” and thus the patients
aggrieved by any deficiency in treatment from both private clinics and Government hospitals,
are entitled to seek damages under the Consumer Protection Act
JACOB MATHEW v STATE OF PUNJAB
the informant’s father, late Jiwan Lal Sharma was admitted as a patient in a private ward of
CMC Hospital, Ludhiana. On 22-2-1995 at about 11 p.m. Jiwan Lal felt difficulty in
breathing. The complainant’s elder brother, Vijay Sharma who was present in the room
contacted the duty nurse, who in her turn called some doctor to attend to the patient. No
doctor turned up for about 20 to 25 minutes. Then, Dr. Jacob Mathew, the appellant, and, Dr.
Allen Joseph came to the room of the patient. An oxygen cylinder was connected to the
mouth of the patient but the breathing problem increased further. The patient tried to get up
but the medical staff asked him to remain in bed. The oxygen cylinder was found to be
empty. There was no other gas cylinder available in the room. Vijay Sharma went to the
adjoining room and brought a gas cylinder therefrom. However, there was no arrangement to
make the gas cylinder functional and in- between, 5 to 7 minutes were wasted. By this time,
another doctor came who declared that the patient was dead
Ratio & Decision:

(i) Mere deviation from normal professional practice is not necessarily evidence of negligence.

(ii) Mere accident is not evidence of negligence.

(iii) an error of judgment by a professional is not negligence.* not sure

(iv) Simply because a patient has not favorably responded to a treatment given by a physician or
a surgery has failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa
loquitor.

1. Court applied Bolam Test (Bolam vs Friern Hospital Management Committee), to

determine whether 304A IPC would apply. As per Bolam Test, the standard to be applied for
judging, whether the person charged has been negligent, would be that of an ordinary competent
person exercising ordinary skill in that profession.
2. A clear distinction exists between “simple lack of care” incurring civil liability and “very high
negligence” which is required in criminal cases. To apply 304A IPC, the act must be ‘recklessly’
or ‘rashly’ or ‘grossly’ negligent, which no ordinary professional would do, knowing that it could
have serious consequences.

3. It is not the case where the accused was not a doctor qualified to treat the patient whom he
agreed to treat. It is a case of non-availability of oxygen cylinders because of the hospital having
failed to keep available a gas cyl or because of the gas cyl being found empty. Then, probably the
hospital may be liable in civil law but the accused-appellant cannot be proceeded against
under section 304A IPC on the parameters of the Bolam test.

1.From Jacob Mathew Case- So long as a doctor follows a practice acceptable to the medical
profession of that day, he cannot be held liable for negligence merely because a better
alternative course of method of treatment was also available or simply because a more skilled
doctor would not have chosen to follow or resort to that practice

2.A professional may be held liable for negligence on one of the two findings: either he was
not possessed of the requisite skill which he professed to have possessed, or, he did not
exercise, with reasonable competence in the given case, the skill which he did possess

3. The test for determining medical negligence as laid down in Bolam case holds good in its
applicability in India

4. Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law,
especially in cases of torts and helps in determining the onus of proof in actions relating to
negligence. It cannot be pressed in service for determining per se the liability for negligence
within the domain of criminal law

Bourhill v Young
a fishwife had just alighted from a tramcar. A speeding motor cyclist passed on the other side
of the tramcar and immediately afterwards collided with a motor car and was killed. The
fishwife did not see the motor cyclist or the accident but she simply heard the noise of the
collision. In consequence she sustained nervous shock. Held that the cyclist was under no
duty to her to foresee that his negligence in driving at an excessive speed and colliding with a
car might result in injury to her for such a result could not reasonably and probably be
anticipated.

In Hill v Chief Constable, West Yorkshire

the Constable was held not liable to the mother who lost her child at the hands of a murderer
who couldn’t be detected for his earlier murders on account of errors in investigation. The
House of Lords held that the police did not owe any general duty of care to the individual
members of the public to identify and apprehend an unknown criminal even though it may be
reasonably foreseeable that harm was likely to be caused to a member of the public if the
criminal was not defected and apprehended. It was again laid down that “foreseeability of
likely harm is not in itself a sufficient test of liability in negligence
What Is “Pure Economic Loss?”
Pure economic loss is financial damage suffered as the result of the negligent act of another
party which is not accompanied by any physical damage to a person or property. the rule that
the cost of rectifying defective work is considered by the Courts to be pure economic loss
which, in the absence of a special relationship giving rise to a duty of care, is not recoverable
in negligence.

(i) Pure economic loss suffered as a result of the acquisition of defective products or premises
You cannot recover in negligence for the loss you suffer when you buy something worth less
than you thought or hoped it would be. So, you cannot recover if someone's negligence
caused you to think something is worth more than it turned out to be. For example, if you buy
a microwave oven which simply doesn't work. There might be contractual claims against the
salesperson or a contractual guarantee against the manufacturer. But, you cannot sue the
manufacturer in tort on the grounds that the defect in the oven is the result of the
manufacturer's negligence.

Pure economic loss does not give rise to negligence as it would ‘destroy the commercial
competition, sterilize contracts and expose defendants to potential liability in an
indeterminate amount for an indeterminate time to an indeterminate class’

Not recoverable - for fear that it is potentially unlimited and could represent a "crushing
liability" against which parties would find it impossible to insure.(think about white v.
Warwick case)

Duty of Care: Omissions

The general rule is that there is no liability in negligence for a mere omission(pure omission),
i.e. for failing to confer a benefit on someone. For example, failing to shout a warning to a
blind person about to walk off a cliff or failing to save a child drowning in a shallow pond. It
is applicable to real omissions and not omissions to take reasonable care in doing a positive
act.

Three exceptions to the general rule

(i) Assumption of responsibility

Assumption of responsibility is by far the most important exception. This is where the
defendant has assumed a responsibility towards the claimant, which obliges him to take
reasonable steps to confer a benefit on the claimant
ex Where a child drowns in a shallow pool, the childminder would be liable. A lifeguard
would be liable in the case of a swimmer in difficulty.
(ii) Occupiers of land
The second exception is occupiers of land who are under a positive common law duty to take
reasonable steps to prevent a danger on their land from damaging their neighbour's property

3. Parents

The tort of negligent misstatement is defined as an “inaccurate statement made honestly but
carelessly usually in the form of advice given by a party with special skill/knowledge to a
party that doesn’t possess this skill or knowledge

In Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd., the plaintiffs were advertising agents
and entered into contracts on behalf of Easipower Ltd., the defendants. The plaintiff’s
bankers gave favourable references to the plaintiffs about the financial position of the
company. On this the plaintiffs incurred expenditure and the company went into liquidation
harming the plaintiffs. It was held that there was absence of any duty of care though the
statement made was negligent. The law will imply duty of care when a person seeking
information from another possessed of a special skill trusts him to ensure such care, and any
breach of this duty would invite damages.

In Hedley Byrne v Heller the defendants stated that their advice was given 'without
responsibility' and this was held to be effective to negate liability for negligence which would
otherwise have arisen

In England Hedley Byrne & Co v Heller & Partners established that there might be liability in
tort for negligent misstatement in circumstances in which information or advice is sought
from a person possessing some special skill or judgement where that person knows or ought
to know that reliance is being placed upon information or advice by the person seeking it.

 Policy Considerations
Policy considerations are important on limiting the number of persons who can
claim that a duty of care not to cause economic loss was owed to them by the
tortfeasor.
For example, if because of A's negligence, B, an artisan, is injured and is unable to supply
goods, which he makes, to his customers with whom he has contracts, not only B but also his
customers may suffer foreseeable economic loss, but on policy considerations A cannot be
held to owe any duty of care to the customers who cannot sue A, and B can sue A for loss of
earnings which will include loss of profits. Similarly, when damage to B's goods is caused by
negligence of A, a third person C, with whom B had entered into a contract for sale of those
goods but in whom the property or possession had not passed before the damage cannot sue
A for economic loss suffered by him even if that loss was foreseeable.

aPolicy considerations, it has been noticed, have been taken into account in not imposing a
duty of care on police while exercising their statutory duty of investigating a crime.
113Similarly policy considerations have generally negatived imposition of a common law
duty of care on local authorities in relation to performance of their statutory duties. 114Policy
considerations will also negative a claim in negligence of a plaintiff who relied on his own
criminal or immoral act to support his claim. 115Further policy considerations led to the
distinction made between personal injury and psychiatric illness resulting in restricting the
area within which damages can be claimed for the latter. 116Policy consideration have also
been taken into account in limiting the duty of health professionals responsible for protecting
children from child abuse to act only in good faith and they were not held liable in negligence
to the parents when on preliminary examination they suspected the parents of abusing their
child which later on further examination was found to be incorrect and in the meantime the
parents had suffered psychiatric injury

CAUSATION

In deciding the question whether the damage was caused by the wrongful act, the generally
accepted test is known as 'but for' test. This means that if the damage would not have resulted
but for the defendant's wrongful act, it would be taken to have been caused by the wrongful
act
Thus when a doctor is negligent in failing to see and examine a patient and give him the
proper treatment, the claim will still fail if it is shown on evidence that the patient would have
died of poisoning even if he had been treated with all due car

Negligence in not telling the patient of the risk involved in a surgical operation or treatment
would not justify award of damages on materialisation of the risk after the operation or
treatment if it can be shown that the patient would have proceeded with the surgery or
treatment even if he had been told of the risk involved for the claim for damages would then
fail on the ground of causation.

The 'but for' test is, however, not of universal application and a lesser degree of causal test
may be applied in special circumstances to prevent injustice.

In Mc Ghee v. National Coal Board

the workman contracted dermatitis after some days spent in cleaning brick kilns. The
employer was not at fault for the hot and dusty condition of the brick kilns. The employer's
fault lay in not providing washing facilities as a consequence of which the employee had to
cycle home unwashed. It was not proved and could not have been proved with the knowledge
relating to onset of dermatitis then available that the washing would have been effective to
prevent onset of dermatitis. But it was found that the absence of washing materially increased
the risk of the disease and on this finding the defendant was held liable.
but for test, if applied, then could not be proved if defendant is liable or not as the reason of
skin disease is unknown.
Thus in the special circumstances of this case the 'but for' test was not insisted upon and no
distinction was drawn between making a material contribution to causing the disease and
materially increasing the risk of contracting it

This is how Mc Ghee's case was understood in Fairchild v. Glenhaven Funeral Services.
In this case the claims were by or on behalf of the estates of former employees. In each case
the employee had worked at different times and for differing periods under more than one
employer. Both employers were in breach of duty towards the employee to take reasonable
care to take all practicable measures to prevent him from inhaling asbestos dust because of
the known risk that the dust if inhaled may cause mesothelioma. The employee was found to
be suffering from a mesothelioma because of inhalation of excessive asbestos dust during his
employment but he was unable to prove on the balance of probabilities due to current limits
of scientific knowledge that his mesothelioma was the result of inhaling asbestos dust during
his employment by one or other or both of his employers.
held that in the circumstances the 'but for' test would have led to unfair result by denying
redress to the employee and could be departed from and a lesser degree of causal connection
applied namely that by materially increasing the risk of the disease each employer had
materially contributed to causing the employee's disease. Both the employers were, therefore,
jointly held liable

In a case where the claimant was exposed to asbestos dust while working for several years
with different employees and developed asbestosis but had claimed damages for personal
injury against only one of the employers on the ground of negligence and breach of statutory
duty, it was held by the court of appeal that the defendant would be liable only to the extent
that he had contributed to the disability

Causation in Fact

This refers to the cause in fact or factual causation. The question is whether the

defendant’s acts can be excluded from the loss to the plaintiff. If yes, that is the end

of the case. There must be a causal link established between the acts of the

defendant and the loss to the plaintiff.

It is the “sine qua non”, or “but-for” test. Such a test asks a counterfactual question: “but for
the defendant’s action, would the victim have been harmed as she was?” This test is also
sometimes called the necessary condition test, because it requires the defendant’s action have
been necessary to the victim’s harm. The appeal of this test stems from this fact. The test
seems to isolate something we seem to care a lot about, both in explaining events and in
assessing responsibility for them, namely, did the defendant’s act make a difference vis-à-
vis how the world would have been had she not done what she did?

NESS TEST

The NESS (necessary element of a sufficient set) account of natural (scientific, ‘actual’,
‘factual’) causation is usually acknowledged to be a more satisfactory and comprehensive
account than the traditional sine qua non (‘but for’) account
“‘NESS’ (Necessary Element of a Sufficient Set) test,” according to which a cause is “a
necessary element of a set of antecedent actual conditions that was sufficient for the
occurrence of” a result.
To illustrate how the NESS test works, consider the following example: Suppose that three
people lean negligently on a car, thereby causing the car to fall over the edge of a cliff. If no
one alone would have exerted enough force to push the car over the edge, but any two people
would have, then none of the individuals is necessary or sufficient for the car’s destruction.
However, within the group of three, there are three sets of two people, each of which is
sufficient for the car’s destruction. Moreover, each person in the group is necessary to the
sufficiency of two of these sets. It follows that each person’s negligence would count as a
cause of the car’s destruction on the NESS account

Causation in Law

It talks about the legal sufficiency of the said act in terms of causation. For example,

if D keeps a loaded gun in an unlocked drawer, X steals that gun and kills C, the

court will hold X liable for being an adult of sound mind, and killing C. The courthold that
X’s act alone was the cause of C’s death and D’s act is not a cause and

hence D is not liable.

On the other hand, if instead of X, a kid (Y) steals the gun, and kills C, the court

might hold that C’s death is well within the risk created by D’s act of leaving the

drawer unlocked. D will be held responsible even though D’s was the same

mechanical act in the previous case.

1) Factual causation: it must be shown that, “but for” the defendant's act, the event would
not have occurred. The act must be a causa sine qua non (“cause without which”) of the
event. a test sometimes known as the “but for” test.

2) Legal causation: the defendant's act must be an operative and substantial cause of the
consequence. His act need not be the sole cause, but must make a significant and not
trivial (de minimis non curat lex) contribution to the result. For example, if a doctor takes a
blood sample from a patient who has been stabbed and is dying the taking of the blood will
weaken the patient, but the doctor's role in the patient's death is minimal and causally
insignificant.
factual causation is concerned with establishing a causal link between the defendant's
actions and the harm or damage suffered by the victim, while legal causation is concerned
with establishing whether the defendant's actions were sufficiently culpable and foreseeable
to make him legally responsible

Remoteness: A Limitation to an Action for Negligence

The law will permit no damages to be recovered, except such as are the natural and legal
consequences of a wrongful act. No person can be made liable ad infinitum for all the
consequences, which follow his wrongful act.
A person is held responsible in law only for consequences, which are not remote. In jure non
remota causa sed proximo spectatur (In law, the immediate and proximate, not the remote,
cause must be considered). A man is presumed to intend the natural, but not the remote,
consequences of his act. The law cannot take account of everything that follows a wrongful
act; it regards some subsequent matters as outside the scope of its selection because it were
infinite for the law to judge the causes of causes or consequences of consequences. The
defendant is liable for the wrongful act only if it is the proximate, direct or immediate cause
of injury (causa causans) and not merely a causa sine qua non (cause without any other
cause).
The expression causa causans means the real cause or the cause of causes, while the
expression causa sine qua non means that caus

For example, A pushes B, who falls upon a stone negligently left by C, and is injured thereby.
While A’s pushing B is the causa causans, i.e. the effective cause or the real cause, the
presence of the stone which occasioned the injury, is the causa sine qua non or that cause
without which the event (i.e. the injury) would not have happened.

It is not necessary that the event, which is immediately connected with the consequences, is
proximate and that farther from it is too remote
In Scott v Shepherd,
A threw a lighted squib into a crowd, it fell upon X. X in order to prevent injury to himself
threw it further, it fell upon Y and Y in his turn did the same thing and it then fell on B, as
result of which B lost one of his eyes. A was held liable to B. His act was proximate cause of
damage even though his act was farthest from the damage in so far as the acts of X and Y had
intervened in between

Tests of Remoteness of Damage

Damage is said to be too remote when, although arising out of the cause of action, it does not
immediately and necessarily flow from it, or is such which could not have reasonably been
foreseen.
There are two tests to determine whether the damage is remote or not. It is the test of
reasonable foresight that now holds the field.
(1) Test of reasonable foresight- According to this test if a reasonable man could have
foreseen the consequences of a wrongful act they are not too remote. This view was upheld in
Rigby v Hewitt (1850 5 Ex. 240). The test of reasonable foresight is also called as the test of
probability (a man is responsible for the probable consequences of his act). Thus, if A
commits a wrong, A will be liable only for those consequences which he could foresee, for
whatever could not have been foreseen is too remote a consequence of his wrongful act.
Scott v Shepherd (above) illustrates the test of reasonable foresight. In that case, the person
intervening was not fully responsible for his act and the defendant should have foreseen this
irresponsibility; the chain of causation was unbroken and the defendant was held liable.
In Greenland v Chaplin,
it was observed that a person is expected to anticipate and guard against all reasonable
consequences but he is not by the law of England expected to anticipate and guard against
that which no reasonable man would expect to occur. In King v Philips (1953) 1 All ER 617,
the court observed that the test of liability for shock is foreseeability of injury by the shock.
Thus, foreseeability becomes the effective test.

(3) Test of directness- According to this test a person is liable for all the direct
consequences of his wrongful act (which are not due to the operation of
independent intervening causes), whether he could have foreseen them or not,
because consequences which directly follow a wrongful act are not too remote.
When the two cannot be connected as cause and effect, there is no liability, for the
damage is too remote.
In Smith v London & South Western Railway Co.
this test was first upheld. In this case, the railway company was negligent in
allowing a heap of trimmings of hedges and grass near a railway line. Spark from
the railway engine set fire to the material. Due to high wind the fire was carried to
the plaintiff’s cottage (situated 200 yards from the spot where the fire began),
which was burnt. The defendants were held liable even though they could not
have foreseen the loss of the cottage. The court reasoned that when it has been
once determined that there is evidence of negligence, the person guilty of it is
equally liable for its consequences, whether he would have seen them or not.
What a defendant might reasonably anticipate is only material with reference to
the question, whether the defendants were negligent or not, and cannot alter their
liability if they were guilty of negligence

RE POLEMIS AND FURNESS, WITHY & CO.

In this case, the view taken in the Smith v London & South Western Railway Co. case
was followed.
The defendants chartered a ship. The cargo to be carried by them included a quantity
of Benzene and Petrol in tins. Due to leakage in those tins some of their contents
collected in the hold of the ship. Owning to the negligence of the defendant’s servants
a plank fell into the hold, a spark was caused and consequently the ship was totally
destroyed by fire. It was held that defendants were liable for all the direct
consequences of their servant’s negligent act including destruction of the ship even
though consequences could not have been reasonably anticipated. The court observed:
“Given the breach of duty which constitutes negligence and given the damage as a
direct result of negligence, the anticipation of the person whose negligent act has
produced the damage appears to be irrelevant” (Bankers, L.J.).

According to this case, once the tortious act is established, the defendant is to be held liable
for all the damage which “is in fact directly traceable to the negligent act and not due to
independent causes having no connection with the negligent act.” On this view, the test of
reasonable foresight is of relevance in determining whether there has been a negligence or
not, but when it has been once determined that there is negligence the defendant is liable for
its direct consequences, whether he could have foreseen them or not

LIESBOSCH DREDGER v EDISON

In this case, the ‘direct cause’ was interpreted which had the effect of limiting the scope of Re
Polemis.
In this case, owing to the negligence of Edison, the dredger Liesbosch was sunk. On account
of financial difficulties, the plaintiffs (owners of Liesbosch) could not replace the dredger and
they had to hire another one at a very high rent for the performance of a contract with a third
party. The plaintiffs therefore suffered a very heavy loss. They sued the owners of Edison for
negligence and their claim for compensation included (i) the price of the dredger, and (ii) the
hire charges (i.e. extra expenses) which they had to pay from the date of the sinking to the
date they could actually ,purchase a new dredger.
The court accepted their claim under the first head, but not the second. The court allowed
compensation equal to market price of the dredger comparable to Liesbosch.
As regards the second head of claim the compensation allowed was for loss suffered in
carrying out the contract with the third party from the date of sinking of Liesbosch to the
date when another dredger could reasonably have been put to work. The court allowed the
cost of transporting a new dredger and also loss due to suspension of work in the mean time
together with interest on that sum.
Thus the claim after the time when a new dredger could have been purchased and put to work
was rejected. The reason why the plaintiffs couldn’t purchase a new dredger was their
inability viz. poverty, and thus, additional loss suffered by them was too remote a
consequence of the defendant’s act.
In the instant case, the extra expenses had to be incurred by the plaintiffs, not on account of
the immediate physical consequence of the negligent act, but on account of the intervening
financial problems faced by the plaintiff.
The plaintiffs could not claim for the extra expenses. Thus, the direct consequences test of Re
Polemis was modified by the ruling of Liesbosch case

The rule in Re Polemis was also not followed by the Privy Council in the famous ‘Wagon
Mound’ case, wherein held that the test of reasonable foresight is the better test.
OVERSEAS TANKSHIP (U.K.) LTD. v MORTS DOCK & ENGG. CO. LTD. (“WAGON
MOUND” CASE)
In this case, during bunkering operations (i.e. taking in oil) in Sydney harbour, a lager
quantity of oil was negligently allowed to spill on the water from the Wagon Mound, a ship
under the defendant’s control as charterers. The escaped oil was carried away by the wind
and the tide to a wharf (about 600 ft. away), owned by the respondents-plaintiffs, where
another ship was being repaired. Soon after the oil had spread itself on the water, the Wagon
Mound left the harbour. About 60 hours thereafter molten metal from the plaintiff’s wharf
fell on the cotton waste on a piece of debris floating on the oil, which ignited the fuel oil on
the water and the fire caused great damage to the wharf and the equipment. The trial court
and the Supreme Court of the New South Wales applied the Polemis rule and mentioning that
unforseeability of damage by fire was no defence, held the defendants liable. On appeal the
Privy Council held that Re Polemis was no more good law and reversed the Supreme Court’s
decision. Since a reasonable man could not foresee such injury the appellants (defendants)
were held not liable in negligence even though their servant’s negligence was the direct cause
of the damage.

The Privy Council, in this case, laid down the following two principles:
(1) The only test applicable was foreseeability of the damage complained of, which in' this
case were the damage caused by fire.
(2) The respondents could not be held liable for unforeseeable damage viz. damage by fire.
Though the contact of the oil with the respondent’s property caused damage by interfering
with the use of their shipways and this damage was foreseeable, no claim was made for it.
Referring to the Polemis case, their Lordships said: “Polemis rule does not seem consonant
with current ideas of justice or morality, for an act of negligence, however slight or venial,
which results in some small foreseeable damage, the actor should be liable for all
consequences, however unforeseeable and however grave, so long as they can be said to be
‘direct’. It is a principle of civil liability that a man must be considered to be responsible for
the probable consequences of his act. If some limitation must be imposed upon the
consequences for which the negligent actor is to be held responsible, why should that test
(reasonable foreseeability) be rejected corresponds with the common conscience of mankind,
and a test (the ‘direct’ consequences) be substituted which creates insoluble problems of
causation.
“After the event even a fool is wise. But it is not the hindsight of a fool; it is the foresight of
a reasonable man which alone can determine responsibility.
The decision in this case has been considered good law by the House of Lords and the Court
of Appeal in subsequent cases

HUGHES v LORD ADVOCATE

This case illustrate that the test of foreseeability is satisfied if the damage suffered is similar
in kind though different in degree and that the precise sequence of events or the extent of the
damage need not have been foreseeable; but if the damage suffered is altogether different in
kind, the test of foreseeability is not satisfied, and the plaintiff cannot recover.

SMITH v LEECH BRAIN & CO. (“EGGSHELL SKULL” CASE

In this case, it was laid down that if the plaintiff suffers personal injury from the wrongful act
of the defendant, it is no answer to the claim that the plaintiff would have suffered less injury
“if he had not unusually thin skull or an unusually weak heart.” A tort-feasor takes his victim
as he finds him.
In this case, a workman of the defendants because of their negligence suffered a burn injury
on his lower lip which promoted cancer at the site of the bum resulting in his death. But for
the bum, the cancer might have never developed, though there was a premalignant condition
and there was likelihood that it would have done so at some stage in his life. In an action by
the widow of the deceased workman, the defendants were held liable for his death on the
principle that a tort-feasor must take his victim as he finds him.
Smith’s case was followed in Robinson v The Post Office
In this case, it was held that it was foreseeable that if a workman slipped from a ladder made
slippery because of the negligence of the employer, the workman was likely to suffer injury
needing medical treatment in the form of injection of ATS. Although it was not foreseeable
that the injection given even without any negligence on the doctor’s part would cause
encephalitis to the workman because he was allergic to the second dose of ATS yet the Post
Office were held liable on the principle that they were bound to take the plaintiff as they
found him.
The case also holds that foreseeable medical treatment given without any negligence on the
part of the doctor does not constitute Novus actus interveniens.
Lagden v. O’ Connor
Facts
The Defendant, Mr O’Connor, hit the complainant’s parked car and caused damage to the
vehicle. The complainant, Mr Lagden, was unemployed at the time of the incident and could
not afford to pay for another car while his vehicle was getting fixed. Instead, he entered into a
credit hire agreement for another car while his vehicle was pending repairs. The complainant
had looked for damages to also cover the cost of the credit agreement.

Issues
Damages were awarded for the cost of the credit hire agreement. But, the defendant appealed
this decision. The issue was whether the cost of credit hire for the vehicle could be fully
recoverable.

Decision/Outcome
The appeal was dismissed. The claim for the cost of the credit hire agreement was
recoverable in full. While a complainant has a duty to mitigate his losses, Mr Lagden had no
choice but to hire a vehicle while his car was in the garage being fixed. The defendant must
take his victim as he finds him. If evidence demonstrated that the complainant had chosen a
more costly alternative, then there would be a deduction. The question is whether the
complainant had a choice. In this case, Mr Ladgen was an innocent motorist with no
alternative. The judge states that the law has moved on since Liesbosch and the correct test
for remoteness is whether the loss is reasonably foreseeable and then take the victim as you
find them.

DOUGHTY v TURNER MFTG. CO. LTD

In this case, the plaintiff was employed by the defendant. Some other workmen of the
defendant let an asbestos cement cover to slip into a cauldron of hot molten liquid. It resulted
in an explosion and the liquid thereby erupted, causing injuries to the plaintiff, who was
standing nearby.
What happened actually was that the extreme heat caused the asbestos cement to undergo a
chemical change creating or releasing water which turned to steam and which in one or two
minutes later caused an eruption of the molten liquid from the cauldron injuring the plaintiff.
Thus the plaintiff was not injured by the splash, if any, from falling of the cover into the
liquid. Until the accident had been investigated, no one knew or suspected that heat can cause
such a chemical change in asbestos cement. The Court of Appeal held the defendant not liable
on the reasoning that the accident that happened was of entirely different kind to that which
was foreseeable.
Conclusions - Tests of Remoteness of Damage
 In view of this position, it appears that the direct consequences test laid down in Re Polemis
is no longer to be followed. Yep, not followed!
There is, however, some doubt as to the effect of the rule in the Wagon Mound’s case.
In Salmond’s Law of Torts, the following principles modifying the above rule are laid down:
(1) Y suffers foreseeable damage as the result of X’s activities. X is liable for that damage,
whether it is a direct or an indirect consequence of his acts. Scott v. Shepherd
(2) Y suffers foreseeable damage as the result of X’s activities. That damage is much greater
in amount than could have been foreseen, but is still in general the kind of damage that could
have been foreseen. X is liable for it. Hughes v. Lord Advocate
(3) Y suffers foreseeable damage as the result of X’s activities (e.g. personal injuries). Y also
suffers unforeseeable damage as the direct result of those same activities (e.g. he is forced
into bankruptcy by reason of his want of means). Y can recover the former head of loss, but
not the latter.
(4) Y suffers foreseeable damage as the result of X’s activities. Z also suffers direct but
unforeseeable damage as the result of those activities. X is liable to Y, but not to Z.
Intended Consequences
Intended consequences are not subject to the doctrine of remoteness. Such consequences are
never too remote. They are direct and immediate consequences, the causal connection
between the act and the consequence or the cause and effect being obvious. An intentional
wrongdoer’s liability will cover all consequences, whether foreseeable or not, which result
from his wrongful act.
This is not affected by the Wagon Mound case. Scott v Shepherd (above) illustrates the
extent of intentional wrong doer’s liability.
In an action for deceit which is an intentional tort, the tort-feasor is liable for all actual
damage, whether foreseeable or not, which directly flows from the fraudulent act

When the Damages Excluded as Too Remote

(1) Where not a necessary result - Where the defendant’s act is not the ‘direct cause’ of the
damage sustained by the plaintiff. Where the damage is neither the necessary nor the probable
result of the defendant’s act, nor is it such as can be shown to have been in his contemplation
when he committed the act, it can be said to be too remote.
In Sharp v Powell, the defendant’s servant, in breach of a Police Act, washed the defendant’s
van in a street, and allowed the waste water to run down the gutter towards a grating leading
to the sewer, about 25 yards off. In consequence of the extreme severity of the weather, the
grating was obstructed by ice and the water flowed over a portion of the cause way and froze
there. The plaintiff’s horse slipped upon the ice and broke its leg. Held, that this was a
consequence too remote to be attributed to the wrongful act of the defendant.
In another case, the defendants found the plaintiff’s cow straying in their field and seized it.
While the cow was in their custody, it died. The plaintiff sued to recover the value of the cow.
It was held that the defendants were not liable because the death of the cow was not a natural
or probable result of the seizer [Mi Taw v Nga Ket (1904) U.B.R. 1],
(2) Contributory negligence of the plaintiff - When the damage is caused, wholly or
principally, by the act of the plaintiff himself. In Glover v London & S. W. Rly., a railway
passenger misplaced his ticket, and could not produce it when demanded by the ticket
collector. Thereupon, he was removed from the carriage without any undue force. When so
removed, he left his race-glasses in the carriage, and lost them. It was held that the loss of the
race-glasses was not the necessary consequence of the removal of the passenger from the
carriage, but was owing to that passenger’s negligence or carelessness. The loss was too
remote, and the passenger could not recover it.
Comparative negligence states use the assigned blame to limit the amount of damages a
plaintiff can recover. For example, if the judge assigns 70% fault to the defendant and 30% to
the plaintiff, the plaintiff may only be able to recover 70% of the damages, rather than the full
100%. Comparative negligence is a partial defence in tort cases. If an accident victim wants
to sue someone who harmed them, the defendant can claim comparative negligence to reduce
the plaintiff’s recovery.

Most states have now adopted a comparative negligence approach to contributory negligence,
wherein each party's negligence for a given injury is weighed when determining damages.
There are two types of comparative negligence legal doctrines.

Traditionally, the courts viewed contributory negligence as a total bar to the recovery of any
damages. Under the traditional view, if a person had contributed to the accident in any way,
the person was not entitled to compensation for his or her injuries. In an attempt to reduce the
harsh, oftentimes unfair outcomes resulting from this approach, most states have now adopted
a comparative negligence approach. When
When no
comparative
damages
damages
given
Contributory given-
contributory
negligence comparative

(3) Wrongful act of third party (novus actus)/ Interference of third person –
When the damage is due to the wrongful act of an independent third party, such as could not
naturally be contemplated as likely to spring from the defendant’s conduct. The principle
underlying the maxim novus actus interveniens (new acts intervening) is that there are
circumstances when an intervening act of third party breaks the chain of causation between
the wrongful act and the damage sustained by the plaintiff.
two principles are settled;
one: that human action does not per se severe the connected sequence of acts;
the defendant cannot take the defence that this particular action led the injuries.
secondly that to break the chain of causation it must be shown that there is something
ultroneous, something unwarrantable, a new cause which disturbs the sequence of events
However, damage is recoverable if, despite intervening independent causes, the defendant
ought reasonably to have anticipated such interventions and to have foreseen that, it they
occurred, the result would be that his wrongful act would lead to mischief.
Recklessness of a third party as distinguished from his mere negligence may break the chain
of causation and constitute novus actus interveniens.
A car broke down at night in fog on dual carriageway. The driver of the car was negligent in
leaving the car on the carriageway instead of moving the car onto the verge. A lorry driven
not merely negligently but recklessly collided with the stationary car and then went out of
control. The lorry ended up overturned on the opposite carriageway. This would not have
happened but for the reckless driving. Two other cars collided with the overturned lorry. It
was held that the lorry driver's reckless driving broke the chain of causation and it was the
sole cause of the accident on opposite carriageway.
In Haynes v Harwood
the defendant’s servants negligently left a horse van unattended in crowded street. By the
throwing of stones at the horses by a child, they ran away and injured a person. The defendant
pleaded the defence of novus actus interveniens. Held that the defendant was liable. Because
such a mischief on the part of the children was anticipated. The accident was the natural and
probable consequence of the defendant’s wrongful act.
The case also illustrates that children generally do not constitute novus actus when their
action is the result of their mischievous tendencies. Where A left a loaded gun negligently and
his son found it and pointed it in play at P who was injured by the going off, held that A is
liable to P [Sullivan v Creed].
However, where A sustained serious injuries in a train accident and also lost the money,
which he was carrying, it was held that the loss of currency notes couldn’t be directly
connected to the accident. The railway company wouldn’t be liable for loss resulting from the
wrongful act (e.g. theft) of a third party. The maxim novus actus interveniens applies In those
cases in which an accident is partly caused by the interference of a third person, the defendant
will be responsible if it is found that his negligence is the effective cause of the accident
[Scott v Shepherd]
Rescue cases illustrate that a reasonable act done by a person, in consequence of the wrongful
act of the defendant, which results in further damage does not constitute novus actus breaking
the chain of causation.
INDIAN medical Ass v. VP Shantha
The case arose from a dispute between the Indian Medical Association (IMA) and the
government of Karnataka over certain regulations that required doctors to disclose the risks
associated with a medical procedure before performing it.
ISSUE: Whether a doctor can be held liable for medical negligence if they do not inform the
patient about the risks associated with a particular medical procedure.
HELD: The Supreme Court held that a doctor has a duty to inform the patient about the risks
associated with a medical procedure. The failure to disclose the risks could amount to
medical negligence. The Court also held that the IMA could not challenge the regulations
requiring doctors to disclose the risks to patients.
RATIONALE: The Court observed that the right to know about the risks associated with a
medical procedure was a fundamental right of the patient. The Court held that the doctor had
a duty to provide the patient with all the necessary information about the medical procedure,
including its risks, benefits and alternatives. The Court further observed that failure to
disclose the risks could amount to medical negligence and could result in liability for the
doctor.
SIGNIFICANCE: The Indian Medical Association v. V. P. Shantha case was a landmark
case in the field of medical negligence in India. It established the duty of doctors to inform
patients about the risks associated with a medical procedure and emphasized the importance
of informed consent. The judgment has had far-reaching implications for the medical
profession in India and has been cited in numerous subsequent cases.

Bolitho v. City and Hackney Health Authority

A child was brought to a hospital suffering from breathing abnormalities. The doctor
summoned to deal with the matter never received the summons due to a low battery on her
bleep. The child died as a result. The child’s mother sued for negligence, arguing that the
child should have been seen and intubated.
Issues
Establishing the tort of negligence involves establishing that the defendant breached their
duty of care to the claimant. The case of Bolam v Friern Hospital had established that
professionals will not be in breach of their duty if they acted in accordance with practices
accepted as proper by a responsible body of other medical professionals with relevant
expertise. In addition, the claimant must show that but for the breach, the harm would not
have arisen (causation).

The doctor testified that they would not have intubated the patient even if they had attended,
and an expert witness agreed this was proper. The issue is whether this satisfied
the Bolam test, and whether causation was established.
No liability.
The House of Lords held that it is not possible for a defendant to argue that a breach did not
cause the harm, because but for the breach, some other breach would have been committed.
As such, it was necessary to assess whether the doctor would have been in breach if they had
attended and not intubated the child.

The House of Lords clarified the Bolam test to include a proviso that the practice accepted as
proper by a responsible body of professionals must be based on logical and defensible
grounds.

In this case, refusing to intubate the child was not illogical, and so there was no breach.

Caparo Industries case

Caparo is the landmark case which has created the tripartite test in establishing duty of care.
This test departs from Donoghue v Stevenson and the Wilberforce test laid down in Anns v
Merton London Borough Council which starts from the assumption that there is a duty of
care and that harm was foreseeable unless there is good reason to judge otherwise. Whereas
Caparo starts from the assumption no duty is owed unless the criteria of the three stage test is
satisfied. These criteria are: Foreseeability, Proximity and whether it is fair, just and
reasonable to impose such a duty.
A firm of accountants appealed against a decision of the Court of Appeal in which it was
decided that the accountants owed a duty of care to the appellant shareholders when
producing an audit report required by statute. The claim was for negligent misstatement.
Caparo had bought shares in the company of which the report was about as part of a takeover.
The appellant had relied upon the results of the report. However, it was later found that the
results of the report had misrepresented the profits of the firm, in turn causing a loss for
Caparo.
A pure economic loss