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The Legal Maze: Understanding Professional Negligence

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 such tort.

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 behaviour.

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 wrong doing.

Essentials Of Negligence

To claim damages in negligence certain necessary condition must be fulfilled:
  1. Duty of Care:

  2. 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.
  3. Breach of the Duty:

  4. The defendant must breach his duty of care. A defendant breaches such a duty by failing to exercise reasonable care in fulfilling the duty.
  5. Legal Injury:

  6. 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, including:
  1. Errors and mistakes in the preparation of the will
  2. Missing courts deadline, it can have serious implications on the claim of the client
  3. In cases related to property, missing out intended beneficiaries, etc.

Negligence By Medical Professionals:
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 Godbole 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 accountable.

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.

Defenses Available:
  1. 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.
  2. 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 costumers.

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.

  1. R.K. Bangia's the Law of Torts. 21st Edition. Allahabad law agency
  2. Ratanlal and Dhirajlal's Law of Torts. 27th Edition. LexisNexis
  3. S.P. Singh's Law of Torts. 5th Edition. Universals publication

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