UNIT- IV

NEGLIGENCE
It is already known that the Indian law of torts is based on the English common law. Thus, the
law relating to negligence is adopted and modified by the courts of India on the principles of
justice, equity and good conscience. The term Negligence is derived from the Latin word
negligentia, which means ‘failing to pick up’. In the general sense, the term negligence means
the act of being careless and in the legal sense, it signifies the failure to exercise a standard of
care which the doer as a reasonable man should have exercised in a particular situation.
Negligence in English law emerged as an independent cause of action only in the 18th
century. Similarly in Indian law, the IPC, 1860 contained no provision for causing the death
of a person by negligence which was subsequently amended in the year 1870 by inserting
section 304A.
Definition of Negligence
According to Winfield and Jolowicz, Negligence is the breach of a legal duty of care by the
plaintiff which results in undesired damage to the plaintiff.
In Blyth v. Birmingham Water Works Co, Negligence was defined as the omission to do
something which a reasonable man would do or doing something which a prudent or
reasonable man would not do.
It can be characterized in three forms-
Nonfeasance: It means the act of failure to do something which a person should have done.
For example, failure to carry out the repairs of an old building when it should have been
done.
Misfeasance: It means the act of not doing an action properly when it should have been done
properly. For example, Doing the repairs of an old building but doing so by using very poor-
quality materials creating a major probability of a collapse which injures people.
Malfeasance: It means the act of doing something which should not have been done in the
first place itself. For example, using products that are not allowed and combustible to carry
out the repairs of an old building, therefore, converting the building into a firetrap leading to
an accident.
Illustration
Z, an owner of a big dog requests his friend X to take care of the dog while he is away. X
leaves the dog unattended who attacks a passerby badly injuring him. Here it will be said that
the act occurred due to the negligence of X.
Essentials of negligence
To commit the tort of negligence, there are primarily 6 main essentials that are required. An
act will be categorized as negligence only if, all the conditions are satisfied namely –
1) Duty Of Care
It is one of the essential conditions of negligence in order to make the person liable.
It means that every person owes, a duty of care, to another person while performing an act.
Although this duty exists in all acts, but in negligence, the duty is legal in nature and cannot
be illegal or unlawful and also cannot be of moral, ethical or religious nature.
In the case of Stansbele vs Troman (1948), A decorator was engaged to carry out decorations
in a house. Soon after The decorator left the house without locking the doors or informing
anyone. During his absence, a thief entered the house and stole some property the value of
which the owner of the house claimed from the decorator. It was held that the decorator was
liable as he was negligent in leaving the house open and failed his duty of care.
2)The Duty must be towards the plaintiff
A duty arises when the law recognizes a relationship between the defendant and the plaintiff
and requires the defendant to act in a certain manner toward the plaintiff. It is not sufficient
that the defendant owed a duty of care towards the plaintiff but it must also be established
which is usually determined by the judge.
In the case of Bourhill v. Young (1943) the plaintiff who was a fishwife got down from a tram
car and while she was being helped in putting her basket on her back, a motor-cyclist after
passing the tram collided with a motor car at a distance of 15 yards which was on the other
side of the tram. The motorcyclist died instantly and the plaintiff could not witness the
accident or the dead body since the tram was standing between her and the place where the
accident occurred. She had only heard the sound of the collision and once the body had been
removed from the place of accident, she visited the place and saw some blood which was left
on the road. As a reaction to this incident, she suffered a nervous shock and gave birth to a
still-born child of 8 months because of which she sued the representatives of the deceased
motorcyclist. It was held that the deceased had no duty of care towards the litigant and
therefore she could not claim any damages from the deceased’s representatives.
The case of Donoghue v. Stevenson (1932) has evolved the principle that we each have a duty
of care to our neighbor or someone we could reasonably expect to be affected by our acts or
omissions. It was held that, despite no contract existed between the manufacturer and the
person suffering the damage an action for negligence could succeed since the plaintiff was
successful in her claim that she was entitled to a duty of care even though the defective good
i.e a bottle of ginger beer with a snail in it was bought, not by herself, but by her friend.
3) Breach of Duty to take care
It’s not enough for a plaintiff to prove that the defendant owed him a duty of care but he must
also establish that the defendant breached his duty to the plaintiff. A defendant breaches such
a duty by failing to exercise reasonable care in fulfilling the duty. In other words, the breach
of a duty of care means that the person who has an existing duty of care should act wisely and
not omit or commit any act which he has to do or not do as said in the case of Blyth v.
Birmingham Waterworks Co, (1856). In simple terms, it means non-observance of a standard
of care.
In the case of Ramesh Kumar Nayak vs Union of India(1994), The post authorities failed to
maintain the compound wall of a post office in good condition on the collapse of which the
defendant sustained injuries. It was held that postal authorities were liable since that had a
duty to maintain the post office premises and due to their breach of duty to do so, the collapse
occurred. Hence, they were liable to pay compensation.
In the case of Municipal Corporation of Delhi v. Subhagvanti (AIR 1966)
A very old clock tower situated right in the middle of a crowded area of Chandni Chowk
suddenly collapsed thereby causing the death of many people. The clock tower was 80 years
old although the normal life span of the clock tower should have been 40-45 years. The clock
tower was under the control of The Municipal Corporation of Delhi and they had a duty of
care towards the citizens. By ignoring to repair the clock tower, they had breached their duty
of care toward the public and were thereby liable
4) Actual cause or cause in fact
In this scenario, the plaintiff who is suing the defendant for negligence has the liability to
prove is that the defendant’s violation of duty was the actual cause of the damages incurred
by him.
This is often called the “but-for” causation which means that, but for the defendant’s actions,
the plaintiff would not have incurred the damages.
For example, when a bus strikes a car, the bus driver’s actions are the actual cause of the
accident.
5)Proximate cause
Proximate cause means “legal cause,” or the cause that the law recognizes as the primary
cause of the injury. It may not be the first event that set in motion a sequence of events that
led to an injury, and it may not be the very last event before the injury occurs. Instead, it is an
action that produced foreseeable consequences without intervention from anyone else. A
defendant in a negligence case is only responsible for those damages that the defendant could
have foreseen through his actions.
In the case of Palsgraf vs Long Island Railroad Co(1928), A man was hurrying while trying
to catch a train and was carrying a packed item with him. The employees of the railway saw
the man who was attempting to board the train and thought that he was struggling to do so.
An employee on the rail car attempted to pull him inside the train while the other employee
who was on the platform attempted to push him to board the train. Due to the actions of the
employees, the man dropped the package. Which had contained fireworks, and exploded
when it hit the rails. Due to the explosion, the scales fell from the opposite end of the station
and hit another passenger, Ms. Palsgraf, who then sued the railway company. The court held
that Ms. Palsgraf was not entitled to damages because the relationship between the action of
the employees and the injuries caused to him were not direct enough. Any prudent person
who was in the position of the railway employee could not have been expected to know that
the package contained fireworks and that attempting to assist the man the railcar would
trigger the chain of events which lead to Ms. Palsgraf’s injuries.
6) Consequential harm to the plaintiff
Proving that the defendant failed to exercise reasonable care is not enough. It should also be
proved that the failure of the defendant to exercise reasonable care resulted in damages to the
plaintiff to whom the defendant owed a duty of care.
The harm may fall into the following classes: -
a.) Bodily harm
b.) Harm to the reputation
c.) Harm to property
d.) Financial Loss
e.) Mental Harm.
When such damage is proved, the defendant is bound to compensate the plaintiff for the
damages occurred.
In the case of Joseph vs Dr. George Moonjely(1994) The Kerela high court awarded damages
amounting to Rs 1,60,000 against a surgeon for performing an operation on a 24-year-old girl
without following proper medical procedures and not even administering local anaesthesia.
Res ipsa loquitur
Res ipsa loquitur is a Latin phrase that means “the thing speaks for itself.”
It is considered to be a type of circumstantial evidence which permits the court to determine
that the negligence of the defendant led to an unusual event that subsequently caused injury
to the plaintiff. Although generally the duty to prove that the defendant acted negligently lies
upon the plaintiff but through res ipsa loquitur, if the plaintiff presents certain circumstantial
facts, it becomes the burden of the defendant to prove that he was not negligent.
This doctrine arose out of the case of Byrne vs Boadle(1863)
The plaintiff was walking by a warehouse on the road and suffered injuries from a falling
barrel of flour which rolled out of a window from the second floor. At the trial, the plaintiff’s
attorney argued that the facts spoke for themselves and demonstrated the warehouse’s
negligence since no other explanation could account for the cause of the plaintiff’s injuries.
Thus, the following are the three essential requirements for the application of this maxim-
1)The thing causing the damage must be under the control of the defendant or his servants
2) The accident must be such as would not have happened in the ordinary course of things
without negligence.
3)There must be no evidence of the actual cause of the accident.
Defenses available in a suit for negligence
1) Contributory negligence by the plaintiff
Contributory negligence means that when the immediate cause of the damage is the
negligence of the plaintiff himself, the plaintiff cannot sue the defendant for damages and the
defendant can use it as a defense. This is because the plaintiff in such a case is considered to
be the author of his own wrong. It is based on the maxim volenti non fit iniuria which states
that if someone willingly places themselves in a position which might result in harm, they are
not entitled to claim for damages caused by such harm.
The plaintiff is not entitled to recover from the defendant if it is proved that-
1)The plaintiff by the exercise of ordinary care could have avoided the consequence of the
defendant’s negligence.
2)The defendant could not have avoided the consequence of the plaintiff’s negligence by an
exercise of ordinary care
3) There has been as much want of reasonable care on the plaintiff’s part as on the
defendant’s part and the former cannot sue the latter for the same.
The burden of proving contributory negligence rests on the defendant in the first instance and
in the absence of such evidence, the plaintiff is not bound to prove its non-existence
In the case of Shelton Vs L & W Railway(1946), while the plaintiff was crossing a railway
line, a servant of the railway company who was in charge of crossing shouted a warning to
him. Due to the plaintiff being deaf, he was unable to hear the warning and was consequently
injured. The court held that this amounted to contributory negligence by him.
2) An Act of God
An Act of God is a direct, violent and sudden act of nature which by any amount of human
foresight could have been foreseen and if foreseen could not by any amount of human care
and skill have been resisted. Thus, such acts which are caused by the basic forces of nature
come under this category. For example, storm, tempest, extraordinary high tide, extraordinary
rainfall etc.
If the cause of injury or death of a person is due to the happening of a natural disaster, then
the defendant will not be liable for the same provided that he proves the same in the court of
law. This particular defence was talked in the case of Nichols v. Marsland (1876) in which the
defendant had a series of artificial lakes on his land. There had been no negligence on the part
of the defendant in the construction and maintenance of the artificial lakes. Due to
unpredictable heavy rain, some of the reservoirs burst and swept away four country bridges.
It was held by the court that the defendant could not be said to be liable since the water
escaped by the act of God.
3) Inevitable Accident
An inevitable accident can also be called as a defense of negligence and refers to an accident
that had no chance of being prevented by the exercise of ordinary care, caution, and skill. It
means a physically unavoidable accident.
In the case of Brown v. Kendal (1850) the plaintiff’s and defendant dogs were fighting and
their owners attempted to separate them. In an effort to do so, Defendant beat the dogs with a
stick and accidentally injured the Plaintiff, severely injuring him in the eye. The Plaintiff
brought suit against the Defendant for assault and battery. It was held that the injury of the
plaintiff was as a result of an inevitable accident.
Negligence as a tort has evolved from the English law and accepted by the Indian law as a
substantially important tort. As discussed, negligence is of two types, civil and criminal and
each has various repercussions. In order to prove that an act was negligent, it is necessary to
prove all the essentials namely duty, breach of duty, damages and actual and proximate cause.
An important maxim regarding negligence i.e. Res Ipsa Loquitur is used by the courts when a
negligent act cannot be explained. Also, the defences in a suit for negligence can be used by
the defendant to defend himself from a suit issued by the plaintiff.
CAUSATION AND FORSEABILITY
Standard of care required
The law requires taking of two points into consideration to determine the standard of care
required : (a) the importance of the object to be attained, (b) the magnitude of the risk, and (c)
the amount of consideration for which services, etc. are offered.
(a) 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 risks so
that in public interest various kinds of activities should go on. “As has been pointed out, if all
the trains in this country were restricted to a speed of five miles an hour, there would be
fewer accidents, but our national life would be intolerably slowed down. The purpose to be
served, if sufficiently important, justifies the assumption of the abnormal risk.”
(b) The magnitude of risk
The degree of care required varies according to each situation. What may be a careful act in
one situation may be a negligent act in another. The law does not demand the same amount of
care under all situations. The kind of risk involved determines the precautions which the
defendant is expected to take. The position in this regard was explained by Venkataramiah, J.
in Mysore State Road Transport Corporation v. Albert Disa as under,
Negligence is failure in the duty to take due care. The expression ‘due’ connotes that degree
of care which a reasonable man ought to take in a given set of circumstances. What may
amount to ‘negligent’ act in a particular place and occasion may not be a negligent act in
another place or occasion. In deciding what care was called for by a particular situation, one
useful test is to enquire how obvious the risk must have been to an ordinary prudent man.
(c) The amount of consideration for which services, etc. are offered
The degree of care depends also on the kind of services offered by the defendant and the
consideration charged therefor from the plaintiff. For instance, one who purchases a glass of
water from a trolley in the street for 10 or 25 paise is entitled to safe drinking water which
should not ordinarily infect him. But if a person purchases a mineral water bottle for Rs. 10/-
or 15/-, then he can justifiably demand a higher degree of purity.
PROFESSIONAL NENGLIGENCE AND DEFENCES
According to Winfield, “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”.
There are three essential elements of negligence:
That the defendant owed duty of care to the plaintiff;
The defendant made a breach of that duty;
The plaintiff suffered the damage as a consequence thereof.
In order to take an action for negligence, the plaintiff has to prove these three essentials.
Negligence, in common terms, means carelessness. The most common professionals who
face this type of negligence: Bankers, Manufactures, Repairers and Builders, Physicians and
Surgeons, Solicitors, Counsel, Directors of Companies, Carriers, Innkeepers and
Hotelkeepers. The negligence committed by these professionals is known as Professional
Negligence. It becomes professional negligence when the responsibilities of a professional
fail to reach a standard level. The practice of a profession or art which requires some special
experience, skill, and ability by carrying a reputation for that practice to the extent is
required.
Professional negligence is a very complicated area of law, it takes place when a professional
breaks down to perform his responsibilities to a required standard. Before defending a claim
including allegations of professional negligence, there should be a sought of legal advice in
all the cases.
A failure to carry out the required standard represents a breach of contract. To claim for
negligence and for breach of contract, there are some important differences especially to the
one relating to the remedy that can be sought. While discussing any claim with a legal advisor
this should be considered. Professional negligence may include compensation for loss
incurred to the plaintiff by the defendant’s act of negligence.
In this article, the concept of professional negligence by medical practitioners, manufactures,
builders, repairers, solicitors, and bankers will be explained to get a better view on the
liability of each professional. The laws and cases which are related to this topic will be
discussed in a detailed way.
Negligence by medical professionals
The negligence made by the surgeons or physicians is termed as medical negligence. A
surgeon should not be in a belief that he will undertake a particular operation of a patient or
that he will discharge a cure for that only. He should not just undertake to use the highest
possible degree of skill but should undertake any operation to bring a competent, fair, and
reasonable degree of skill.
While filing a suit against a doctor, the plaintiff i.e the patient should take the responsibility
of proving that the defendant was negligent and he suffered with the injury caused due to the
defendant’s negligence. For the appropriate remedy to prove the doctor’s negligence, the
plaintiff should provide evidence and file a civil suit for compensation as a writ petition
under Article 226 of the Constitution. When a doctor is being consulted by a patient, the
doctor owes him certain duties like duty of care:

in whether he can undertake the case,

in deciding what treatment to give,
in administration of the treatment.
The patient gets right to take an action against the doctor when any of these duties were
breached. The preference of choosing which kind of treatment should be given is available
for a doctor like which way of treatment he wants to give to the patient and such preference is
also should be applicable in case of emergencies. The doctor has to bring to his task a
reasonable degree of knowledge and skill and must perform with a reasonable degree of care.
In Achutrao Haribhau Khodwa V. State of Maharashtra, in a Government hospital, a towel
was left inside a woman’s peritoneal cavity while she was being operated for sterilization
causing peritonitis which led to her death. By applying the principle of rep ipsa loquitor,
conclusion to the negligence was strained against the doctors of the hospital and they were
vicariously held liable.
So, few laws were made by the Supreme Court, stating that the medical practitioner’s skill
varies from one another. There may be alternative ways in which the patient will be advisable
for a treatment and this is the very nature of the profession. If the doctor performs his duty
with due care, and with the best of his ability caution, courts will actually be slow in
assigning negligence on his part. The course of action that should be taken with regard to a
doctor for treating a patient, medical opinion may differ and that he has attended on the
patient with due skill, care and diligence will be noticed by the court and if the patient still
does not survive or suffers a permanent ailment, the doctor cannot be held for guilty of
negligence.
In Martin F D’souza V. Mohd. Ishfaq, the Supreme Court observed the entire case law and
repeated the principles which were stated in Jacob Mathew’s case. In this the plaintiff
complained of deafness due to the negligence of the doctor by administering overdose of
Amikacin injection. Based on the evidence the negligence of the doctor will be decided. The
court in addition of repeating the medical negligence principles mentioned directions which
are general: whenever a complaint is filed against a hospital or a doctor by the District, State
or National courts or by the criminal court, before issuing the notice to the doctor or the
hospital of against whom the complaint was filed, either the Consumer forum or the criminal
court should observe the matter to competent doctor or committee of doctors, specialized in
the field relating to which the medical negligence in attributed, and only after that the
concerned doctor or the committee should be given notice of medical negligence. Also, the
doctors who are not found guilty of negligence should not be harassed. If the policeman goes
against doctors and harass them, the policemen themselves face legal actions.
Criminal negligence can be charged against a physician when a patient dies from the effects
of anaesthesia in an operation or in any other treatment only after proving the death was the
result of gross negligence or malicious intention. Before the administration of anaesthesia or
performance of an operation, the performer is expected to follow the accepted precautions. In
such cases, the physician should be able to prove that he used ordinary and reasonable care in
the treatment of his patient to the best of his knowledge.
For a sound mind adult, a doctor cannot lawfully operate or give them any other treatment
involving the applications of physically force without their consent rather he would be liable
but when a patient is incapable of giving his consent, a doctor can lawfully operate or give
the required treatment concerned that is in the best interests of the patient but only if it is
applicable to either to save his life or to ensure improvement or prevent deterioration in his
physical or mental health. These principles were mentioned in the House of Lords in F V.
Berkshire Health Authority in which a mentally handicapped woman, a patient in a mental
health hospital, was having a sexual relation with a male patient in the same hospital and an
application to the court was made for permitting sterilization operation which was held to be
in the best interests of the patient. The sterilization operation of a minor or a mentally
incompetent adult requires the sanction of a High Court judge in all cases.
Negligence by manufactures, builders and repairers
The manufacturer owes a duty of care to all the customers who are expected to use his
products. In case, if the products which are dangerous like those which are defective that may
cause extensive harm, then the duty can be owned to anyone who will reasonably be affected
by the defect in the product. So, it means that the negligence claim is not limited by the
doctrine of privity of contract, which states that to a contract only one party can sue. Only
manufactures are not liable, also those who supplied or distributed products are also liable.
The negligence of manufacture can be of:
1) During the process of manufacturing, lack of duty care which may result as a defective
product,
2) During the product designing lacking duty of care which subjects to failure of carrying
careful research out,
3) Failing in conducting the tests effectively,
4) Failing of providing danger warnings effectively,
5) Failing to recall a product or issuing warnings appropriately if any danger becomes
apparent after circulation of the product.
It may restrict effectiveness in claiming product liability as only the manufacturer can be held
liable for lacking reasonable care which resulted in injuring the party. So, this party should be
able to prove it and this may be expensive and difficult. In few cases, which are concerned
with defects made by the manufactures, the party which got injured can rely upon res ipsa
loquitur. It is difficult to avoid the liability unless the plaintiff can show how the negligence
took place. The manufacturers are responsible to show how they took responsibility to
provide safe products with good quality by avoiding defective goods and also the reasonable
care of employees in the manufacturing process.
When the complaint is about negligence of designing the product, then the position of the
party that got injured will be weaker. To impose liability for negligence of design by the
manufacturers, the courts may be reluctant. Also, the injured party faces difficulty in linking
the negligence of the defendant and the loss he incurred.
Building projects requires a greater number of professionals and each one plays a different
role in the process where everyone is responsible for duty of care and skill. Sometimes there
will be arguments between the professionals and non-professionals regarding contribution
and contributory fault. Also, sometimes local authorities have involvement in the construction
projects.
In Donoghue V. Stevenson case, which is also called ‘Snail in ginger beer’, where the
plaintiff was given a ginger beer bottle by a friend which he took from a retailer. The plaintiff
drank the bottle where the bottle contained the snail’s decomposed remains and recognized
this after consuming greater part of the bottle. The bottle was dark opaque glass so that the
content in it wasn’t visible. The plaintiff suffered from shock and severe gastroenteritis. The
plaintiff filed a suit against the defendant and the defendant was held liable.
The repairer of an article owes a duty to any person by those who use the product lawfully to
observe whether it has been carefully repaired or not. In case of distributors, the plaintiff has
to show that in some way they have been careless in their handling of the particular goods.
Negligence by solicitors
A solicitor will be held liable for the outcomes of non-observance or ignorance of the rules of
practice of the court. He will also be liable for the lack of requirement of care in the
preparation of the cause for trial and for the mismanagement of the conduct of a cause that is
usually administered to the profession of his department. A suit can be filed for damages
against a solicitor on the ground that he failed to lodge and prosecute an appeal because if he
would have done without negligence, then his client may get justice.
A solicitor is liable for the negligence act in case the client proves that the act resulted in the
loss of the cause, like allowing a claim to be barred by limitations or struck out for failure to
apply for a trial date within the prescribed period. For the negligent act of his partner or
agent, the solicitor will also be held liable.
In Country Personnel (Employment Agency) Ltd V. Alan R Pulver & Co., a solicitor was held
liable for negligence to his client for not alerting him as to the effect of an unusual clause in a
lease while negotiating an underlease. But a Solicitor, who had acted for a testator in
preparing a will, owes no duty of care to the beneficiary when he acts for the testator in a
subsequent transaction relating to a property covered by the will.
Except in the most exceptional circumstances a solicitor advising a partnership has no duty to
communicate his advice to all the partners as he only has to advise the partner who has the
matter in hand on behalf of the firm. A solicitor does not normally owe any duty of care to his
client’s counterpart but in special circumstances he may owe such a duty.
For negligence a solicitor cannot be held liable in the conduct of either criminal or civil
proceedings if it involves an attack on the decision of a court of competent jurisdiction. So, a
plaintiff who was convicted by a criminal court on a plea of guilty cannot sue his solicitors
for damages that they were negligent in advising him to plead guilty.
Negligence by bankers
As per Section 5(b) of the Banking Regulation Act, 1949, banking means ‘the accepting, for
the purpose of lending or depositing investments of money from the public and repayable on
demand or otherwise and withdrawable by draft, cheque, and order or otherwise. To sum up,
a banker is who: takes current and deposit accounts; pays and issues cheques; for his
customers collects crossed and uncrossed cheques.
Liabilities of bankers for negligence are not at par with private individuals. The public
institution’s priority in general belongs to the society. No particular individual is interested in
securing it. The affairs of public institutions are managed by paid employees in whom few
are only interested in their salaries. An agent who is signing a promissory note on his name,
cheque or bill of exchange without indicating and later he signs as agent, or if he does not
intend later to incur personal responsibility will be held liable personally except to those who
had induced him to sign upon the belief that the principal only would be held liable.
The money kept in the hands of the bankers by customers of the bank for the casual purposes
of the banking; they are the persons of skills and as persons worthy of trust. Their duty is to
respect the payment of their customer’s cheque, to honor them to any amount not exceeding
the credit balances. A failure in commissioning leads to negligence and would be liable to
damages which might include for injury to the credit of the customer.
A banker if commits a negligent act will be held liable vicariously, and also the bank will be
held liable if its employees are done in the course of employment. They are also liable for
negligence in paying forged cheques. If the banker issues bank drafts without the authority in
accordance with the customer’s instructions against valid cheques of the customer owing to
the fraud of the customer’s servant, he will be liable for damages. Also, if he delivers the
goods or money to a wrong person, which he received on behalf of the customer then the
liability of the banker is absolute, though there is no element of negligence.
Conclusion
The concept of negligence is something which is common in everyday life. Many people
incur loss or harm for the negligence committed by others. The professional should take the
duty of care either to their parents or customers or clients. They should also protect the
consumers from the happenings of dangerous things. Not all the professionals accept their
negligence at their work and not all the plaintiffs have undergone the damages that are
especially caused due to the negligence of the professionals, so to find out and provide the
verdict to the justified person there should be laws for the negligence.
A doctor generally presumed to know the law and dealt with it because in general he can and
ought to know it. In the matter of professional liability, the medical profession varies from
other occupations because that professional operates in the field where success cannot be
achieved in every case. In present day society the awareness regarding the patient’s rights
increased, especially the medical practitioners are becoming unsafe as they were being held
sued by a litigation suit of either criminal or civil. The other professionals also face the same
kind of situation but it is greater in number in the medical field.
Also, when the professionals were held liable it helps the customer or the client or the patient
by payment of their damages which were caused by the negligence of the professionals. By
the existence of laws to the negligence made by the professional even they will try to work
with efficiencies though in some cases they fail. In the case of counsels, in CBI V. K.
Narayana Rao. The Supreme Court has clarified that in law negligence professionals like
doctors, architects, lawyers, and others who are included in the category of the persons
possessing certain skill. The lawyer is not expected to assure the client that under any
circumstances he can win the case. He can only assure that he would exercise his special
skills with reasonable competence. Thus, the professionals can be held guilty of negligence in
two situations i.e., either he was not possessed with the required skill which he proclaimed to
have possessed or he failed to exercise with reasonable competence in the case which he
possessed.