Torts are civil wrongs or violations of legal obligations against people or property that give
rise to civil rights of action for remedies that are not limited to any one field of law, such as
breach of contract, breach of trust, etc.
Law of 'Torts' derived from the Latin word 'Tortum', which means twisted or crooked. In
simpler terms, torts can be defined as a civil wrongful act conducted by an individual towards
another person or property which causes legal injury and arises claim for unliquidated damages.
Cases related to torts in India are decided in civil courts and one can get relief by a way of
monetary compensation or an order for injunction.
The supreme court of India has provided
numerous interpretations of various torts and given major landmark judgements which shaped
the law of torts in India. It is observed that the in legal field branch related to torts is growing
as more and more legal issues related to torts are coming into prominence. Negligence is one
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".
Negligence is commonly used to refer to carelessness. The most frequently affected professions
include bankers, manufacturers, repairers and builders, doctors and surgeons, solicitors,
attorneys, company directors, carriers, innkeepers, and hoteliers. Professional negligence
describes the carelessness displayed by these experts. When a professional's duties fall short of
expected standards, it becomes professional negligence.
The practice of a profession or art that
demands a certain level of expertise, talent, and reputation for that practice is necessary.
Professional negligence, which occurs when a professional fails to carry out his duties to the
required standard, is a particularly complex field of law. An investigation should be done prior
to mounting a defense against a lawsuit that includes claims of professional negligence.
A breach of contract occurs when the required standard is not met.
There are some significant
variations between making a claim for negligence and one for contract violation, particularly
in terms of the remedy that may be requested. This should be taken into account when
considering any claim with a legal professional. Compensation for loss suffered by the plaintiff
as a result of the defendant's negligence is one potential professional negligence claim.
To better understand each professional's culpability, this project will clarify the concept of
professional negligence as it relates to doctors, manufacturers, builders, repairers, solicitors,
and bankers. A thorough discussion of the relevant laws and court rulings will be provided.
Definition Of Negligence
Negligence as a tort is the failure of the legal responsibility to take care
that results in
damage to the plaintiff, which the defendant doesn't want" -- Winfield
Negligence is defined as "the breach of duty resulting from the doing of something that a
prudent and reasonable man would not do or from the failure to do something that a reasonable
man, guided by those considerations, would do." Negligence demonstrates careless or reckless
When someone engages in such behaviour and causes harm to another person, that
person may be held accountable or liable for his/her negligent action. It should be remembered
that negligence might take one of two forms: situation of tortious culpability or a personal
Essentials Of Negligence
To claim damages in negligence certain necessary condition must be fulfilled:
- Duty of Care:
A duty of care should be owed by the defendant to the plaintiff. Here duty means legal duty rather than religious, moral, or social duty. The plaintiff has to prove that the defendant owed him a specific duty of care, of which the defendant has to take care.
- Breach of the Duty:
The defendant must breach his duty of care. A defendant breaches such a duty by failing to exercise reasonable care in fulfilling the duty.
- Legal Injury:
The breach of duty should result in legal injury to the plaintiff. It is also shown that the damage caused is not too remote; hence, it should be reasonably foreseeable.
Definition Of Professional Negligence:
"Professional negligence refers to the
failure on the part of the professional to comply with the professional standard
of care legally required or reasonably expected under the circumstances in the
performance or non-performance of professional services, which results in the
damages to other person."
Negligence By Solicitors
Lawyers or Solicitors are experts with specialized knowledge and skills who take on complex
cases of extreme importance and difficulty. If a solicitor is negligent in a situation that calls
for a lot of care and accuracy, the repercussions could be severe. If a solicitor is unaware of or
doesn't follow the court's rules and regulations, they will be held accountable.
In M. Veerappa v. Evelyn Sequeira
, the Supreme Court of India ruled that
a lawyer cannot claim immunity from responsibility because, by virtue of his or
her status as a lawyer, the lawyer is still liable for any harm or injury caused
by negligence on the part of the client and may be sued in a court of law. If a
lawyer commits negligence, the court may require them to make up any losses they
caused as a result.
There are numerous offenses for which attorneys might be held accountable,
Negligence By Medical Professionals:
- Errors and mistakes in the preparation of the will
- Missing courts deadline, it can have serious implications on the claim
of the client
- In cases related to property, missing out intended beneficiaries, etc.
A mistake done by surgeons or physicians is characterized as medical negligence.
A doctor is well aware that he owes his patient a duty of care. This
responsibility might be a contractual duty or a tort-law duty. An operation's
failure or bad results are not considered negligence.
The absence or lack of
care that a reasonable person would have exercised in the conditions is
characterized as negligence. The individual alleging a doctor of carelessness
faces a hefty burden of evidence. Even with the best skill in the world, it is a
well-known reality that, medical treatment or surgical operations can go wrong.
A doctor could not be held liable in the event of an error.
In a series of
verdicts, the Supreme Court in Laxman Balkrishna Joshi vs. Dr. Trimbak Bapu
have concluded that a doctor is not accountable for negligence if
someone with higher ability or knowledge would have recommended a different
therapy or done surgery in a different method. He is not guilty of carelessness
if he acted in accordance with a practice that a reasonable body of medical
specialists' judges to be reasonable. When a patient contacts a doctor, the
doctor owes him various responsibilities, such as duty of care.
As seen in Shishir Rajan Saha v/s The State of Tripura
, the petitioner's son was
coming from Agartala to Udaipur and on the way, he met with an accident. He was
admitted in the emergency ward of the hospital but the senior doctor was not
available there as he was busy in attending the private patients and did not
bother to attend the accident victim. Later on, that victim died due to the
absence of the doctor and delay in medical procedure. For this the doctor was
held liable and paid damages. Also, the directions were issued to all the
government hospitals to upgrade the medical services.
Negligence By Manufacturers
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 harmful like those which
are defective that may cause extensive harm, then the obligation can be owed to
anybody who will reasonably be affected by the defect in the product. So, it
indicates that the negligence claim is not limited by the law of privity of
contract, which provides that to a contract only one party can sue. Only makers
are not liable, also those who supplied or distributed items are also liable.
In Donoghue V. Stevenson case,
which is also termed 'Snail in ginger beer',
where the plaintiff was given a ginger beer bottle by a friend which he obtained
from a shop. The plaintiff drank the bottle where the bottle contained the
snail's decayed remains and recognized this after ingesting bigger part of the
bottle. The bottle had black opaque glass so that the content in it wasn't
apparent. The plaintiff suffered from shock and severe gastroenteritis. The
plaintiff filed a claim against the defendant and the defendant was deemed
In Rimmer v. Liverpool City Council
, The Court of Appeal decided that a
contractor who also designed or built the structures bore a duty of care to all
those who might reasonably be expected to be damaged by the workspaces' design
or construction in his capacity as designer or builder. The duty is to take
reasonable precautions to protect that such individuals are not damaged as a
result of design or construction errors.
- Act Of God:
It refers to the accident caused by natural forces. This defence is used in
the events on which the defendant has no control over, occurrences and the damage
is caused by the forces of nature. In case of foreseeable circumstance, failure to take
necessary precautions can constitute negligence and the party injured is entitled to claim
damages but in case of, Act of God despite taking reasonable measures consequences
cannot be avoided. Hence, defendant can take the defence of Act of God in such cases.
- Contributory Negligence:
Contributory negligence occurs when the plaintiff with his/her own negligence
contributes to the damage caused to him/her by the negligence of the defendant. Here
both plaintiff and defendant have showed lack of reasonable care and precaution.
Hence, it can act as a defence for the defendant.
Professionals forms a stable foundation for a society. Clients trust and seek
advice from the specialists based on the skills, competence and abilities. On
the other side, clients have to suffer terrible consequences merely because of
the careless or unsafe task conducted by the specialists. Professionals must be
cautious with their work, when it comes to their clients, assistance or
Yet, specialists can't guarantee the anticipated results but they can assure the
smooth execution or safe flow of the course of action they choose. Sometimes
happened that professionals reject their culpability and the plaintiff has to
pay the losses which are the result of the negligence committed by the
professionals. Hence, it is necessary that professionals manage every scenario
with due care, full precision and take appropriate measures or standards bearing
in mind the faith of their consumers.
- R.K. Bangia's the Law of Torts. 21st Edition. Allahabad law agency
- Ratanlal and Dhirajlal's Law of Torts. 27th Edition. LexisNexis
- S.P. Singh's Law of Torts. 5th Edition. Universals publication