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Act Of Negligence

In day to day practices, the act or omissions due to carelessness i.e. not to take proper care resulted into loss, damages or injury in such type of incidental act is called as negligence. The word ‘negligence’ means carelessness. In legal sense negligence is the failure to take or to exercise standard / reasonable care.

In general, there is a legal duty to take care In law of tort, a duty of care is a legal obligation imposed on an individual requiring to a standard of reasonable care while performing any acts that could foreseeably harm to others. It is the first element that must be established to proceed with an action in negligence.

A simple definition of negligence i.e. failure to take proper care, and, as a result, that failure causes injury or damage to someone.

In layman’s terms, that means someone did something they were not supposed to do, or failed to do something they were supposed to do.

In the words of Alderson in case of Blyth v Birmingham Waterworks Co [1856]:
Negligence is 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.

Negligence is both civil as well as criminal wrong

Negligence as a Tort:

Tort is a civil wrong. Duties in tort are fixed by the law and such duties are owed in rem or to the people at large. Such wrongs can be remedied by filing for liquidated damages. There may also be cases where concurrent liability may exist under tort and contract. For instance, if there is a contract existing between a patient and a doctor, then the doctor, for his negligence, will be liable under contract.

Some of the examples of civil negligence are as follows:

  1. Pharmaceutical company if launches a drug without testing it on the humans can be held negligent.
  2. Driver who runs a stop sign and goes beyond the prescribed speed limit can be held negligent.
  3. A person who owns a dog and leaves him open in the courtyard of another, and the dog destroys the garden of another. The person can be held negligent.
  4. If a person, who owns a dog, leaves a dog open in the playground and the dog attacks the cat of another and injures her, the person can be held negligent.
  5. An office where mopping is in process and does not put a sign of wet floor, can be held negligent.

Negligence as a Crime:

Negligence as a crime has a different measure. Negligence under law of tort due to the negligence arises of loss caused under criminal law is dependent amount of negligence. Courts held that the burden of proving criminal negligence heavily on the person claiming it. Criminal law requires a guilty mind. If there is a guilty mind, then person will be liable in any case. under the criminal law, rashness and recklessness amount to crime, In other words, the element of criminality is introduced guilty mind or bad intention.


Some of the examples of Criminal negligence are as follows:

  1. If a person is drink and driving, and kills someone on the road, he can be held criminally negligent. The reason is that killing is a crime and similarly drinks and driving is also a crime, therefore he can be sued and held criminally liable.
     
  2. In a nursing home forgets to feed the patient and the patient dies because of the negligent act of the nurse that is when the nurse can be held criminally liable because of her criminal negligence that the patient is put forward for a risk to life.
     
  3. Caretaker in a hospital who is not paying attention and who provides someone with a deadly dose of medication could be considered criminally negligent.
     
  4. A doctor who prescribes additive drugs to a patient knowing that he is allergic to it can be held criminally negligent.
     
  5. A doctor in lieu of making money from the services he provides, if exchanges the lungs of a person during a surgery or leaves a tool or any hazardous substance inside his patient’s body, is criminally negligent.
The original Indian Penal Code, 1860 had no provision providing punishment for causing death by negligence. Section 304-A was inserted in the Code in 1870 by the Indian Penal Code (Amendment) Act, 1870. This section did not create a new offence but was directed towards the offences which fall outside the range of section 299 and 300 of the Indian Penal Code, 1860 (herein after referred as I.P.C.) when neither intention nor knowledge to cause death is present.

Section 304A of Indian Penal Code:

Causing death by negligence:

Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

In Satnam Singh vs. State of Rajasthan

It not be proved that the truck driver deliberately crushed the man on the scooter, thus the conviction was made under section 304-A of I.P.C. Again in Murari v. State of M.P. it was critically observed that truck driver knew that the passengers were sitting on the slabs he was carrying. But still he drove negligently and despite the protest by passengers caused an accident, leading to the death of a woman and two children.

In case of Somabhai Mangalbhai Dabhi vs. State of Gujarat [1988]
The Session Judge convicted the accused of the death of a 10-year-old girl. He was charged under section 304 (a) of IPC for the negligent driving of a motor bus. The defence claimed that the girl entered the road out of nowhere. There was insufficient evidence of the girl coming out of nowhere and also the fact that the driver was driving on the wrong side. Therefore, the sessions court sentenced the accused with two years of Rigorous Imprisonment (RI) along with 500 rupees fine. The Supreme court did allow probation after regarding the context of the case.

In Jacob Mathew vs. State of Punjab [ANR 2005]

The plaintiffs, in this case, were the family of Jivan Lal who was admitted and died in CMC Hospital, Ludhiana. The two doctors who attended the deceased were Jacob Matthew and Allen Joseph. The doctors had to face the charge of criminal negligence. The plaintiffs claimed negligence on the doctor's part while procuring oxygen cylinder for their father. The defense argued that the patient was at the last stage of cancer. He was not supposed to be admitted to any hospital in lieu of his degrading health.

The Supreme Court argued in favor of the doctors stating that the plaintiff must prove that the medical professionals acted in disregard of the life and safety of the patient. A medical professional cannot be held liable if they are following the accepted procedure of medical practice. They cannot be reprimanded for not using an alternative method that might or might not have brought the desired result.

They can only be charged in either of the two conditions:

  • if they do not possess the skill to match their profession.
  • if they did not show reasonable competence while discharging their duty; the standard set here would be of an ordinary competent person.
Different levels of negligence can be traced; some negligence may be civil in nature while the other may be criminal in nature. If we stop doing negligent acts, we will stop tolerating them too and then only we will become careful about our actions about what we speak and what we do.

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