LAW OF TORTS, MEDICAL NEGLIGENCE AND CONSUMER PROTECTION

Transcription

1 LAW OF TORTS, MEDICAL NEGLIGENCE AND CONSUMER PROTECTION Rajiv Kumar Khare Centre for Consumer Studies INDIAN INSTITUTE OF PUBLIC ADMINISTRATION NEW DELHI

2 LAW OF TORTS, MEDICAL NEGLIGENCE AND CONSUMER PROTECTION Dr. Rajiv Kumar Khare Associate Professor NLIU, Bhopal Published by Centre for Consumer Studies INDIAN INSTITUTE OF PUBLIC ADMINISTRATION NEW DELHI In collaboration with National Law Institute University, Kerwa Dam Road, Bhopal, (MP)

3 Sponsored by: The Department of Consumer Affairs, Ministry of Consumer Affairs, Food and Public Distribution, Government of India. Published by Centre for Consumer Studies, Indian Institute of Public Administration, New Delhi and Printed at New United Process, A-26, Naraina Industrial Area, Ph- II, New Delhi , Ph

4 FOREWORD Economic liberalization in India has led to a palpably growing realization among citizens of their entitlement to high quality service from service providers. The enactment of social welfare legislation like the Consumer Protection Act, 1986 and the Right to Information Act, 2005 has further enhanced aspirations for improved service delivery and good governance. Prior to these developments the only remedy available for protection of consumers rights and interests was under the Law of Torts. In case of negligence on part of the service provider, the only remedy available to the aggrieved party was to file a civil suit for damages, which was expensive and time consuming. The Consumer Protection Act is a benevolent piece of social welfare legislation providing for a simple, speedy and less expensive remedy for the redressal of consumer grievances in relation to defective goods and deficient services. The Act is a weapon in the hands of consumers to fight against exploitation by traders, manufacturers and sellers on the one hand and providers of services on the other. Though the consumers are confronted with deficiency in services with respect to a number of services, the medical service is most technical and complicated of all. The medical profession, though one of the noblest of its kind, is not immune from negligence which, at times, leads to death of the patient or physical impairment. Due to the technical nature of the problem the consumers do not know what to do and find it difficult to get relief. This monograph is an attempt to highlight the problems of consumers in the service sector and the need of accountability for better services with particular reference to the medical sector. It is against this backdrop that the Centre for Consumer Studies, Indian Institute of Public Administration, New Delhi, in collaboration with NLIU, Bhopal, has brought out the present monograph on Law of Torts, Medical Negligence and Consumer Protection. I would like to thank the author, Dr Rajiv Kumar Khare for bringing out this monograph in its present form. It s an important contribution to the literature on consumer protection and will help the readers understand the concept of negligence and its applicability to the medical profession. Place: New Delhi Date: August 5, 2010 B.S. Baswan

5 Preface The development of consumer protection regime is fairly young. At the domestic front, the consumer movement started with enactment of the Consumer Protection Act, The Act aims to provide for better protection of interest of the consumers and for the establishment of the quasi-judicial authorities for the settlement of the consumer disputes. This Act has primarily given statutory recognition to the rights of the consumers in India. However, prior to these developments, the concern for protection of consumers rights and interests may be located under the Law of Torts which is even now equally effective and enforceable. The term tort is derived from the Latin term tortum and is judge-made or court-developed law which can redress any violation of legal right if the same is not already covered under any statute time being in force. Every unjustified harm is a tort and as such actionable, unless there is a legal policy leaving certain harms unrecognized. This ever expansive branch of law, the law of torts, has given recognition to several new types of wrongs including the wrongs inflicted on the consumers. In the monograph attempt has been made to throw light on the relationship of Law of Torts vis-à-vis Consumer Protection with special emphasis on Medical Negligence cases. Consumer protection regime primarily aims to protect against deficiency in services and defect in goods. Often the deficiency in service or defect in goods is the outcome of negligence of the service providers or the manufacturers, suppliers, producers of the goods. Thus the essentials of the tort of negligence remain important in consumer disputes. As the scope of this monograph is limited to the tort of negligence and consumer protection, a few important sectors wherein the problems faced by the consumers have been discussed. Thus the discussion shall primarily be around these aspects under the torts law and consumer laws, with sectorspecific treatment of consumer cases. The sectors specifically included in this monograph are insurance, transport, banking and finance, medical etc. The Centre for Consumer Studies, IIPA has been bringing out a number of publications on issues that affect the consumers. This monograph will help the

6 readers to understand the rationale of tortious liability and its applicability to the consumer disputes. I would like to thank Prof. S. S. Singh, Director, NLIU and Mr. B. S. Baswan, Director, IIPA for his encouragement and support. I am also thankful to the Department of Consumer Affairs, Government of India for their help. I would like to thank the Centre for Consumer Studies, IIPA for bringing out this publication. Date: August 1, 2010 Place: Bhopal Rajiv Kumar Khare 1

7 INTRODUCTION The word tort has been derived from the Latin term tortum, which implies a crooked or twisted or not straight and lawful conduct. It is equivalent to the English term wrong. Since the social opinion concerning crooked or deviant conduct is influenced by the ruling ideologies and the material conditions, the notion of tort keeps on changing with time and place. It is this dynamic nature of tort law, which creates civil liability and leads to non-penal consequences, has led to ensuring justice to all. Generally, every unjustified harm is a tort and as such actionable, unless there is a legal policy leaving certain harms unrecognized. This ever expansive branch of law, the law of torts, has given recognition to several newer types of wrongs including the wrongs inflicted on the consumers. The development of consumer protection regime is fairly young and may be traced to the Bill of Consumers Rights wherein the recognition of consumer rights commenced at the international level. 1 This Bill recognized four important rights of the consumers, viz. (i) the right to safety; (ii) right to be informed; (iii) right to choose; and (iv) the right to be heard. 2 These rights of the consumers were further strengthened by passing of resolution by UN General Assembly on April 9, 1985, wherein general guidelines were issued by the United Nation General Assembly which included: (i) physical safety, (ii) protection and promotion of consumer economic rights, (iii) standards for the safety and quality of consumers goods and services, (iv) measures enabling consumers to obtain redress, (v) masures relating to specific areas like, food, water and pharmaceuticals; and (vi) consumer education and information programmes. At the domestic front, the consumer movement started with enactment of the Consumer Protection Act, 1986 (hereinafter referred as CPA) which aims to provide for better protection of interest of the consumers and for the establishment of the quasi-judicial authorities for the settlement of the 1 Bill of Rights of the Consumers on March 15, Other four rights added in the document are the ; (i) right to satisfaction of basic needs ; (ii) right to to redress ; (iii) right to to education ; and (iv) the right to healthy environment. 2

8 consumer disputes. 3 This Act has primarily given statutory recognition to the rights of the consumers in India. These rights, given in the Act, include: (i) the right to be protected against the marketing of goods and services which are hazardous to life and property; (ii) (iii) (iv) (v) the right to be informed about the quality, quantity,potency,purity, standard and price of goods or the services as the case may be so as to protect the consumer against unfair trade practices; the right to access to variety of goods and services at competitive prices; the right to be heard and be assured that consumer interest will receive due consideration at appropriate flora; the right to seek redress against unfair trade practices or unscrupulous exploitation of consumers; and (vi) the right to consumer education. 4 However, prior to these developments, the concern for protection of consumers rights and interests may be located under the Law of Torts which is even now equally effective and enforceable. This monograph, therefore, attempts to throw light on the relationship of Law of Torts vis-à-vis Consumer Protection with special emphasis on Medical Negligence cases. Consumer protection regime primarily aims to protect against deficiency in services and defect in goods. Thus the discussion shall primarily be around these aspects under the torts law and consumer laws, with sector-specific treatment of consumer cases. The sectors specifically included in this monograph are insurance, transport, banking and finance, medical etc. The Law of Torts As stated earlier the term tort is derived from the Latin term tortum and is judge-made or court-developed law which can redress any violation of legal right if the same is not already covered under any statute time being in force. Defining any term is a tough task yet there are certain advantages which flow from an attempt to define any term. Attempts have been made by scholars to 3 See, the Object and Reasons clause of the Consumer Protection Act, See, Section 6 of the CPA 3

9 define the term tort. According to Dr. Winfield, tortious liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages. 5 Sir Salmond stated that, It (tort) is a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of a contract or the breach of trust or other merely equitable obligation. Another definition given by Fraser provides that, it is an infringement of a right in rem of a private individual giving a right of compensation at the suit of the injured party. 6 The term tort has also been defined in the Limitation Act, 1963 which reads that, Tort means civil wrong which is not exclusively a breach of contract or breach of trust. 7 Thus from the above definitions following essentials of the torts emerge: That it is a civil wrong 8 That it is other than a mere breach of contract or breach of trust 9 That the wrong is redressible by an action for unliquidated damages. 10 Tortious Liability: A Historical Perspective Initially no one was allowed to bring an action in the King s Common Law Courts without the King s writ being issued from the Chancery which was not a Court of Law, but a Government Department, one of whose function was the creation and issue of writs. The Chancery Division came to be known as the writ shop because a plaintiff could not get a writ without paying for it. The number of writs was limited. Every aggrieved party (the Plaintiff) had to bring 5 Dr. Winfield cited in WHV Rogers, Winfield And Jolowicz on Tort, Sweet & Maxwell, International Student Edition, 1998, p See, Winfield, Provinces of Law of Tort (1931), Chap XII; Williams and Hepple, Foundations of the Law of Tort, 2 nd ed, Chap 1. 7 Section 2 (m) of the Limitation Act, The basic nature of civil wrong is different from a criminal wrong. In case of a civil wrong the injured part, i.e. the plaintiff institutes civil proceedings against the wrongdoer; main remedy in such cases is the damages (compensation); in case of civil wrong the suit is adjudicated by balancing of the probabilities. 9 The tort is that civil wrong which is not exclusively any other kind of civil wrong. If we find that a wrong is a mere breach of contract or breach of trust, e.g. where a person agrees to buy a computer does not fulfill his part of obligation, the wrong would be mere breach of contract and not the tort. 10 Monetary compensation is the most important remedy in tort, this compensation is not previously fixed between the parties, rather it is to be determined by the court. As the damages in tort are unliquidated, it also enables us to distinguish tort from other civil wrongs, like breach of contract or breach of trust. 4

10 his cause of action 11 within a recognized form of action. The writs that remedied the injuries, presently called tort, were at first: (a) Writ of trespass, and later (b) writ of trespass on the case, and (c) the writ on the case. Writ of trespass lay for injuries to land or goods or to the person limited to injuries which were direct and immediate. It did not extend to indirect or consequential injuries. The writ of trespass became common around the year Further it was probable that injuries not remediable by the writ of trespass might be remedied by actions upon the case issued by the Chancery Division. These actions upon the case seem to have been of wider ambit, i.e. when a new kind of injury occurred, the person wronged by it could apply to the Chancery for a writ of trespass upon the case or for a writ upon the case. If the injury bore some analogy to one already covered by an existing writ, the Chancery would issue a new writ. Armed with this, the plaintiff (the injured person) would then bring his action into the Royal Court. The judges may or may not hold that the writ expressed a good cause of action. Writ on the case provided for all injuries not amounting to trespasses, that is to say, for all injuries which were either not forcible or direct, but merely consequential. Thus most part of the law of torts grew out of the writs. In the early 14 th Century success of an action depended on the availability of writ. 12 The law, therefore, was that where there is a remedy, there is a right, i.e. Ubi remedium ibi jus, i.e. in other words if there was no remedy by way of a writ, there was considered to be no right. However, this process of recognition or rejection of right continued for more than 500 years when the Common Law Procedure Act, 1852 was passed whereby writs were abolished. 13 The position then was changed and is now that whenever the court is convinced that a lawful right of a person is violated, a remedy is provided for the same, i.e. the law being ibi jus ubi remedium, i.e. where there is a right there is a remedy. Further, recognition of newer torts, like. torts of harassment 14, psychiatric sufferings 15, etc, show that whenever there has been an unjustifiable interference with the rights of a person, the courts have provided a remedy for the same. 11 A cause of action meant a factual situation which entitles one person to obtain a remedy from another in the court of law. 12 See, Supra n-4, at pp For details, see, R.K. Bangia, Law of Torts, Allahabad Law Agency, 1 st Edn, Reprint 2001, chap.1 14 Khorasandjian v. Bush, [1993] 3 All ER Wilkinson v. Downton, [1897] 2 QB 57 5

11 Conditions of Tortious Liability The hallmark of tortuous remedy is the existence of a legal right and its protection against infringement, i.e. it prevents people from hurting one another. The fundamental principle of the tortuous remedy is to hurt nobody by word or deed, explained properly by the Latin maxim called, alterum non laedere. However, it may be noted that this general principle preventing hurt (harm) by a wrongful act or wrongful omission must be recognized by law, i.e. it must be a legal damage and if it is not legally recognized, no remedy may be provided. The legal damage is explained by a Latin maxim, called, Injuria sine damno; wherein Injuria means infringement of a legal right conferred by law on the plaintiff and any unauthorized interference, howsoever trivial it may be, with the plaintiff s right would be actionable per se. Damnum means substantial harm, loss or damage in respect of money, comfort, health etc. Thus it is quite possible that there has been merely infringement of a legal right with or without any physical loss or damage, the person so wronged could still approach the court and seek redressal of the alleged wrong. 16 Opposed to the above, there may be a situation where there has been no infringement of any legal right but there has been substantive harm/damage caused. This situation may be explained through another Latin maxim, called, Damnum sine injuria, which means damage caused without infringement of any legal right. This situation does not give any right to bring an action before any court of law. For example, the harm done may be caused by some person who is merely exercising his own legal right In Ashby v. White, (1703) 2 Ld. Raym.938 case, the Plaintiff was a qualified voter at a parliamentary election, but the defendant, a returning officer, wrongfully refused to take plaintiff s vote. No loss was suffered by such refusal because the candidate for whom he wanted to vote won in spite of that. It was held that the Defendant is liable. Mr. Holt, C.J. said, if the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it; and indeed it is vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal every injury imports a damage, though it does not cost the party one farthing. 17 In a famous Gloucester Grammar School case the defendant, a schoolmaster, set up a rival school adjacent to that of the plaintiff s school. Because of the competition, the plaintiffs had to reduce their fees from 40 pence to 12 pence per student per quarter which resulted loss to the plaintiffs. It was held by the House of Lords that the plaintiff has no remedy for the loss thus suffered by them. Hankford, J. said; Damnum may be abseque injuria, as if I have a mill and my neighbour builds another mill whereby the profit of my mill is diminished, I shall have no action against him, although I am damaged, but if a miller disturbs the water from going to my mill, or does any nuisance of the like sort, I shall have such action as the law gives. 6

12 Types of Liability in Torts: A natural query arises whether the mental state of the tortfeasor (the wrongdoer) is a relevant factor in judging his liability under the law of torts? In the area of law of torts the state of mind of a person is relevant to ascertain his liability in number of torts like, assault, battery, false imprisonment, conspiracy etc. Whereas in certain cases like, conversion, negligence, defamation etc liability arises even without any wrongful intention on part of the defendant, the wrongdoer. Thus liability in torts may arise in two ways: (i) fault based liability, where mental element is a relevant factor; and (ii) no fault liability or strict liability. Generally the second type of liability, i.e. no fault liability, is pressed into action when it comes to protection of consumers rights and interests wherein damage/loss or infringement of consumers right may take place owing to negligence on part of the service provider/manufacturer (or retailer) of goods. Negligence may be a mode of causing harm or it may be an independent tort, for example, a solicitor who forgets about the limitation period or a doctor who forgets that the patient is allergic to a treatment. The question here arises that do we call it negligence as a state of mind or a tort so as to fix the accountability of the wrongdoer? In fact the word negligence has twin meanings in law of torts: (i) negligence as a mode of committing certain torts, e.g., negligently or carelessly committing trespass, nuisance or defamation. In this context, it denotes the metal element; and (ii) negligence is considered as a separate tort which means a conduct which creates a risk of causing damage, rather than a state of mind. It is impossible for the law to do more than to infer person s intention, or indeed any other mental state of his, from his conduct. The law may frequently attribute to him an intention which a metaphysician would at most consider very doubtful. Centuries ago, Brian C.J. said: it is common knowledge that the thought of man shall not be tried, for the Devil himself knoweth not the thought of man. 18 On the other hand, Browen L.J., in 1885, had no doubt that 18 Year Book Pasch, 17 Edw, 4 Vol 2, Pt. 2 cited in W.H.V. Rogers, M.A., Winfield and Jolowicz on Tort International Student Edition, Sweet & Maxwell, 1998 p. 49 7

13 the state of a man s mind is as much a fact as the state of his digestion. 19 There is no contradiction in these dicta. All that Brian C.J. meant was that no one can be perfectly certain what passes in the mind of another. But Brian would certainly not have dissented from the proposition that in law what a person thinks must be deduced from what he says and does; and that all that Brown L.J. meant. 20 Thus if an act is done deliberately and with knowledge of its consequences, the wrongdoer cannot sensibly say that he did not intend the consequences or that the act was not aimed at the person who, it is known, will suffer them. The House of Lords in Donoghue v. Stevensonn 21, treated negligence actionable where there was a duty to take care by the defendant, as a specific tort itself, and not simply as an element is some more complex relationship or in some specialized breach of duty. An actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury, to person or property. 22 Negligence A Tort and Consumer Protection As stated before, the negligence may be of three types: (i) the state of mind; (ii) mode of committing tort; and (iii) an independent tort incurring liability of the tortfeasor. Negligence, as state of mind, may not incur any liability as it cannot be measured unless exhibited through a deed or an act. The second type of negligence encompasses a mental element in tortuous liability which may entail liability, e.g. trespass to person through the infliction of assault or battery, or nuisance 23 or defamation 24. However, in case of negligence as an independent tort, the wrongdoer clearly cannot escape liability owing to his advertence to the risk or a conduct which creates risk of causing damage to 19 Edgington v. Fitzmaurice (1885) 29 Ch.D. 459 at p Write W.H.V. Rogers, M.A., Winfield and Jolowicz on Tort International Student Edition, Sweet & Maxwell, 1998 p (1932) AC (1883) 11 Q B D Nuisance as a tort means an unlawful interference with a person s use or enjoyment of land, or some right over, or in connection with it. See, Bhanwarlal v. Dhanraj, AIR 1973 Raj 212 at 216. Also see, Read v. Lyons & Co. (1945) K.B. 216 at Defamation as a tort is the publication of a statement which reflects on a person s reputation and tends to lower him in the estimation of right-thinking members of society generally or tends to make them shun or avoid him. See, W.H.V. Rogers, M.A., Winfield and Jolowicz on Tort International Student Edition, Sweet & Maxwell, 1998 p

14 any innocent person, the consumer. Dr. Winfield has defined the tort of negligence as: Negligence as a tort is the breach of a legal duty to take care which results in damage, undesired by the defendant, to the plaintiff. 25 Yet another classic definition of negligence is: The omission to something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. 26 Further the Black s Law Dictionary defines negligence per se as under: Negligence per se Conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances, either because it is in violation of a statute or valid municipal ordinance, or because it is so palpably opposed to the dictates of common prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it. As a general rule, the violation of a public duty, enjoined by law for the protection of person or property, so constitutes. Thus, the above definitions clearly bring in three important essential elements of the tort of negligence: (i) that a duty of care is owed to the plaintiff; (ii) there has been a breach of the duty; and (iii) damage has resulted from that breach or necessarily has causal linkage to the breach of duty besides infusing an element of the concept of reasonable man s conduct in determining the duty of care. The American approach recognizes four components of the tort: (i) a duty of care, requiring the actor to conform to a certain standard of conduct; (ii) failure to conform to the standard; (iii) a reasonably close causal connection between the conduct and the resulting injury or proximity cause; and (iv) actual loss or damage to the plaintiff. It may further be pointed out here that all these four essentials are also generally applicable under English 25 Supra N-23 at p. 90 (In context of consumer protection the defendant would be the persons engaged in manufacturing, sale or supply of goods or the service providers and the plaintiff is a sufferer of such activities of the traders, manufacturers and service providers). 26 Blyth v. Birmingham Water Works Co. (1856) 11 Ex. 781 cited in W.H.V. Rogers, M.A., Winfield and Jolowicz on Tort International Student Edition, Sweet & Maxwell, 1998 p

15 or Indian law so far as the proximity of relationship is concerned. As asked by the House of Lords, in Donogue v. Stevenson case on the issue as to: Who is my neighbour? Lord Atkin answered that the persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question. 27 Explaining the neighborhood principle, Lord Atkin observed that, A manufacturer of products, which he sells in such a form as so 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 reasonable care in the preparation or putting up of the products will result in an injury to the consumer s life or property, owes a duty to the consumer to take that reasonable care. 28 Thus the proximity rule is equally applicable in England and India as well. 29 The essentials of the tort of negligence are explained herein under: The Existence of the Duty of Care: It would be absurd to hold any person liable for his every careless act or even for every careless act that causes damage. He may only be liable in negligence if he is under a legal duty to take care. Legal duty is different from the moral, religious or social duty and therefore, the plaintiff (consumer) has to establish that the wrongdoer owed to him a specific legal duty to take care of which he has made a breach. A person is only required to meet the standard of care where he has an obligation or a duty to be careful. Thus it may be said that the duty is the relation between individuals which imposes upon one a legal obligation for the benefit of other. Put in other terms the duty is an obligation, recognized by law, to avoid conduct fraught with unreasonable risk of danger to others. Thus the existence of duty towards the plaintiff becomes 27 Donoghue v. Stevenson, [1932] All E. R. p ibid. 29 See, for example, Rural Transport Service v. Bezlum Bibi, AIR 1980 Cal 165, wherein it was observed that inviting passengers to travel precariously on the top of an overloaded bus is itself a rash and negligent act that apart when passengers were being made to travel on the roof, greater amount of care and caution on the part of the driver was called for so that his leaning the metallic truck by swerving on the right to close to a tree with over-hanging branch for overtaking a cart while on speed is also a rash and negligent act. 10

16 important factor for fixation of the liability of the tortfeasor. The existence of legal duty depends upon several considerations borne in mind by the court while deciding the matter and is worked out on case to case basis. Some of the tests that have been developed by the courts include: (i) Foresight: whether the defendant owes a duty of care to the plaintiff or not depends on reasonable foreseeability of the injury to the plaintiff. If at the time of the act or omission the defendant could reasonably foresee injury to the plaintiff he would be deemed to owe a duty to prevent that injury and failure to do that shall make him liable. 30 (ii) Assumption of Responsibility: the duty may arise by assumption of responsibility. For example, in White v. Jones case, the testator, who quarreled with the plaintiffs, his two daughters, executed a will cutting them out of his estate. Thereafter the testator reconciled with his daughters and sent a letter to his solicitors giving instructions that a new Will should be prepared so as to include gifts of 9,000 pounds each to the plaintiffs. The solicitors received the letter but did nothing for long and when he made arrangements to visit the testator, the testator died two days before the new dispositions to the plaintiffs were put into effect. The plaintiffs brought an action against the solicitors. The interesting fact in this case is the plaintiffs were strangers to the solicitors and the law as well because neither, they had any properly executed Will in their favour nor they had any communication with the solicitors so as to infuse an element of duty towards them. However, the House of Lords providing tortuous solution to the case noted that if the solicitors were negligent and their negligence did not come to light until after the death of the testator, there would be no remedy for the ensuing loss unless the intended beneficiary could claim. However, in cases such as this, 30 Supra n-28, wherein the conductor of an overcrowded bus allowed passengers to travel on the top of the bus and due to negligence of the bus driver, who knew the fact that the passengers are traveling on the roof top of the bus, were knocked down by an overhanging branch of a tree causing injury to the son of the plaintiff who ultimately died. The court held the driver and conductor liable in negligence. 11

17 the House should extend remedy to the beneficiary by holding that the assumption of responsibility by the solicitor towards his client should be held liable in law to extend to the intended beneficiary who (as the solicitor can reasonably foresee) may, as a result of the solicitor s negligence, be deprived of his intended legacy in circumstances in which neither the testator nor his estate will have a remedy against the solicitor. 31 (Emphasis Added) (iii) Proximity: The term apparently used by Lord Atkin 32, indicates two situations: one that the geographical proximity between the parties is not of itself sufficient to establish liability, although it may be an important factor; and two, that the absence of proximity in time or space will not prevent the establishment of liability. A manufacturer of a poisonous tinned food is liable to the consumers of food although his product may be shipped to the other side of the world and be consumed months later. (iv) Policy Considerations: Of late, the courts in England, have started fixing liability of the wrongdoer by recognizing that the issue of duty depends upon Policy using that word in a broad sense as comprehending what is fair, just and reasonable. In Hill v. Chief Constable of West Yorkeshire 33, a 20 year old student was murdered by a miscreant who had committed number of similar offences in Yorkshire. An action was brought against the police alleging that they had been guilty of negligence in failing to catch the miscreant and thereby prevent her murder. It was held by the House of Lords that, it would be contrary to public policy for negligence in detection of crime to give rise to liability against the police. In yet another case, 34 it was held that while a doctor performing a vasectomy may owe the patient a duty to advise about 31 [1995] 2 A.C Supra n-26 (Emphasis Supplied) 33 [1989] A.C Goodwill v. British Pregnancy Advisory Service [1996] 1 W.L.R

18 the remote possibility of fathering a child even if the operation is carried out competently and that duty to advise may extend to the current spouse or partner of the patient, however, no duty of care is owed to a member of the indeterminately large class of women who might have sexual relations with the patient at some future time. Thus the claim was struck out as being manifestly unsustainable. Breach of Duty: (Emphasis Supplied) The second important essential to hold the tortfeasor liable in negligence is that the defendant must not only owe a duty of care to the plaintiff, but also he must be in breach of it. The test for deciding whether there has been a breach of duty was laid down in oft-cited dictum of Alderson B, in Blyth v. Birmingham Waterworks Co. case, wherein it was held that negligence is breach of duty caused by the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. 35 In the above definition of the breach of duty, the emphasis is on the conduct of a reasonable man which is a mythical creature of law whose conduct is the standard by which the Courts measure the conduct of all other persons and find it to be proper or improper in particular circumstances as they may exist from time to time. The House of Lords, in Arland v. Taylor has summarized the characteristics of the reasonable man according to which he is not extraordinary, or unusual creature; he is not a superhuman; he is not required to display the highest skill of which anyone is capable; he is not a genius who can perform uncommon feats, nor is he possessed of unusual powers of foresight. Rather he is a person of normal intelligence who makes prudence a guide to his conduct. He does nothing that a prudent man would not do and does not omit to do anything a prudent person would do. He acts in accord with general and approved practice. His conduct is guided by considerations 35 Supra n-25; Also see, Laxman Balakrishna Joshi v. Trimbak Babu Godbole (1969) 1 S.C.R

19 which ordinarily regulate the conduct of human affairs. His conduct is the standard adopted in the community by persons of ordinary intelligence and prudence. Thus the standard of care to be in determining the breach of duty by the defendant, the courts are guided by an objective standard whose degree would vary from case to case, i.e. higher the magnitude of risk greater degree of standard of care would be needed. Further there are two factors in determining the magnitude of risk, i.e. (i) the seriousness or the gravity of the injury risked; and (ii) the likelihood of the injury being in fact caused. In Nirmala v. Tamil Nadu Electricity Board case, the plaintiff s husband while at work in his farm was electrocuted and died instantaneously as he came in contact with a live wire that had snapped. Holding the defendants liable in negligence, the court noted that the defendants have failed to ensure proper maintenance as a result wires snapped and further that they had failed to provide a device whereby the snapped wire would have automatically become dead and harmless. 36 In Bhagwat Sarup v. Himalaya Gas Co., the plaintiff booked replacement of a cooking gas cylinder with the defendant, who had the gas agency in Shimla. The Defendant s delivery man took a cylinder into the plaintiff s house. The cap of the cylinder being defective, he tried to open it by knocking at the same with the axe. This resulted in damage to the cylinder and leaking of gas therefrom. Some fire was already burning in the kitchen and the leaked gas caught fire. As a consequence of the fire, the plaintiff s daughter died, some other family members received severe burn injuries and some property inside the house was destroyed by fire. It was held that the defendant s servant was negligent in opening the cylinder and the defendant was held liable for consequences of such negligence. So far as the magnitude of risk is involved, it may be noted that it depends from case to case, for instance, in Paris v. Stepney Borough Council 37, the plaintiff who had only one healthy eye was blinded in the course of employment. The plaintiff contended that the employers omitted to provide him with goggles and thus were in breach of their duty to take reasonable care of his safety because, they must 36 AIR 1984 Mad 201; See, also, Kerala State Electricity Board v. Suresh Kumar, 1986 ACJ 998 wherein a minor boy came in contact with overhead electric wire which had sagged to 3 feet above the ground, got electrocuted thereby and received burn injuries. The Electricity Board had a duty to keep the overhead wire 15 feet above the ground. The Board was held liable for breach of its statutory duty. 37 [1951] AC

20 have known that the consequences of an accident to his good eye would be particularly disastrous. The court held the defendant liable. Breach of Duty must have caused the Damage: The third and last essential of negligence is that the plaintiff is required to prove the causal connection between the breach of duty and the damage, i.e. where some fault is attributed to the defendant, the plaintiff must prove that the defendant was negligent. The same may be seen in Madras High Court decision in Pandian Roadways Corp. v. Karunanithi 38. In this case, three immature boys were riding a bicycle. On seeing some dogs fighting ahead, they lost the balance and fell down. The driver of a bus saw the boys falling but did not immediately apply the breaks, as a result of which the bus ran over the right arm of one of those boys. The failure of the driver to stop the bus was held to be a clear case of negligence on his part. However, if the plaintiff fails to prove negligence on part of the defendant, the defendant would not be made liable. This situation may be explained by a case decided by the House of Lords, wherein the court observed that: the party seeking to recover compensation for damage must make out that the party against whom he complains was in the wrong. The burden of proof is clearly upon him, and he must show that the loss is to be attributed to the negligence of the opposite party. If at the end, he leaves the case in even scales, and does not satisfy the court that it was occasioned by the negligence or default of the other party, he cannot succeed. 39 (Emphasis Added) The above observation lays emphasis on the neglect of the defendant and imposes a duty upon the plaintiff to prove the causal linkage between negligent act and the damage, i.e. to say that the burden of proof in such cases lies on the plaintiff. The initial burden of proof at least a prima facie 38 AIR 1982 Mad Morgan v. Sim, (1857) 11 Moo P.C. 307 cited in R.K. Bangia, Law of Torts Allahabad Law Agency, 1 st Ed, 1969, Reprint 2001 p