For instance, using faulty equipment or expired medicines in the hospital. The courts have taken into consideration that what act of a doctor should be held as civil liability and what shall extend to the criminal liability. This offence is also compoundable which means that the plaintiff and the defendant can reach an agreement between themselves through their counsel and avoid trial. A medical practitioner, In claims of negligence, it is extremely important to prove that there, . Whether negligence is to be regarded as of such a nature is a question for the jury, after they have been properly directed by the Judge as to the standard to be applied, and depends on the facts of the particular case. But in the year 1870, an amendment was made in IPC which inserted a new provision Section 304A. The section deals with homicidal death by rash or negligent act. The consequence flows from a state of mind which is blank or devoid of any advertence, and the liability for such consequence is to be judged from the standpoint of reasonable foreseeability and the failure to exercise the care which such foreseeability necessarily implies. A medical practitioner is liable for negligence if he/she deviates from “the standard treatment” recommended for taking care of his/her patient causing death or injury of the patient. The accused who was driving a car only with a learner’s licence without a trainer by his side, had injured a person. If a person wilfully drives a motor vehicle into the midst of a crowd and thereby causes death to some person, it will not be a case of mere rash and negligent driving and the act will amount to culpable homicide. Civil negligence. CHAPTER VIII OF OFFENCES AGAINST THE PUBLIC TRANQUILLITY 141. For purposes of the criminal law there are degrees of negligence, and a very high degree of negligence is required to be proved before the felony is established.”. Lord Atkin explained this observation of Lord Ellenborough in these words : “The word “criminal” in any attempt to define a crime is perhaps not the most helpful, but it is plain that Lord Ellenborough meant to indicate to the jury a high degree of negligence.”. At that time negligence was nowhere defined in IPC but fall outside the offenses ranging from Section 299 and 300 of IPC. In matters of corporate negligence, a Company is liable under Section 304(a) if it takes any action that injures their consumers, creates an unsafe environment for its employees or cheats their shareholders. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence, where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which can be reasonably foreseen to be likely to cause physical injury to persons or property. The legal concepts of negligence and recklessness are found in both criminal and civil law. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis of prosecution under criminal law. Some of the landmark judgements in cases related to Section 304(a) IPC: The plaintiffs, in this case, were the family of Jivan Lal who was admitted and died in CMC Hospital, Ludhiana. Vol. In fact, Negligence is an offense under IPC and a tort. In 1870,  Act 27 of the Indian Penal Code added Section 304 a and b as an amendment. Though section 304A covers various fields of activity, an offence is committed only if a person charged is shown to have neglected to take such action as he is reasonably expected to take to avoid injury to others and that such reasonable steps that are expected to be taken by him should show that there was a failure to take such elementary steps it was necessary for him to take. of Delhi Landmark Judgment by the Supreme Court. I. The court also has to take into account the degree of damage done by undertaking that reckless decision. An injury or damage is proximately caused by an act, or a failure to act, whenever it appears from the evidence in the case, that the act or omission played a substantial part in bringing about or actually causing the injury or damage; and that the injury or damage was either a direct result or a reasonably probable consequence of the act or omission.”. Tel dispose l'article 1382 du Code civil. Negligence can make somebody liable for civil damages in a lawsuit, but most negligent acts don’t warrant jail time in the US. The expression “proximate cause” is defined in the 5th Edition of Black’s Law Dictionary as under: “Proximate cause. Therefore, the relationship between the act and the death or injury resulted by it, vis-i vis the plaintiff between a negligent act and a rash act. The courts have held that in criminal law, it is not the damage done, but the degree of negligence that determines liability. At that time negligence was nowhere defined in IPC but fall outside the offenses ranging from Section 299 and 300 of IPC. Negligent conduct does not entail an intention to cause harm, but only involves a deliberate act subjecting another to the risk of harm where the actor is aware of the existence of the risk and, nonetheless, proceeds in the face of the risk. These are clearly reckless. Negligence is not intentional, it is an accident, and we all know that accidents will happen. (6) The word “gross” has not been used in Section 304-A IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a … According to IPC Section 304A – whoever causes the death of any person by a rash act not amounting to culpable homicide gets punished by imprisonment for up to two years or fine or both. For purposes of the criminal law there are degrees of negligence, and a very high degree of negligence is required to be proved before the felony is established.”, Lord Atkin observed that the most appropriate epithet which can be applied to such cases is “reckless”. The words “not amounting to culpable homicide” in the provision are significant and clearly convey that the section seeks to embrace those cases where there is neither intention to cause death, nor knowledge that the act done will in all probability result into death. Inasmuch as in all cases under section 304A there is a casual chain which consists of many links, it is only that which contributes to the cause of all causes, namely, the causa causans and not causa sine qua non which fixes the capability. Firstly, the Act being mentioned above should be causa causans,i.e, the primary cause of death and not merely causa sine qua non,i.e, an indirect act. “The most important consideration upon a trial for this offence is the intention or knowledge with which the act which caused death, was done. LAWSON Négligence in thé civil law Oxford Clarendon Press 1950 341 pages . Court : Supreme Court of India Brief : Penal Code, 1860, Section 304A - Negligence - Death of deceased by electrocution - Defence of accused that to prevent wild animals from going into filed, he had put the wire - Probability of defence version is borne out from various factors - Two poles were placed to which wire was fastened - Seizure of wooden stick - Accused rightly convicted u/s 304A IPC. – That which in a natural and continuous sequence unbroken by any efficient, intervening cause, produces injury and without which the result would not have occurred. " Tout fait quelconque de l'homme, qui cause à autrui un dommage oblige celui par la faute duquel il est arrivé, à le réparer". The cause of the fire was not merely the presence of the burners within the room in which varnish and turpentine were stored, though this circumstance was indirectly responsible for the fire which broke out, but was also due to the overflowing of froth out of the barrels. The material considerations are the absence of care which is on the part of the defendant owed to the plaintiff in the circumstances of the case and damage suffered by the plaintiff, together with a demonstrable relation of cause and effect between the two”. The difference between the two is what marks off a civil from a criminal liability. It must be pointed out that rashness and negligence are not the same things. Accept Read More, Section 304 a – Death by Negligence : Law and Legality, India’s criminal system follows the Indian Penal Code in matters of dealing with crime. In the case of powerful Companies, the plaintiffs should be ready to show concrete proof, including reliable testimonies and documents to reach a favourable verdict. Therefore, the relationship between the act and the death or injury resulted by it should be direct for the plaintiff to win the case. This website uses cookies to improve your experience. The same act or omission may accordingly in some circumstances involve liability as being negligent although in other circumstances it will not do so. It might give them some closure or at the very least compensate them if there has been a breach of duty that led to irreversible damage or loss of life/property. What constitutes negligence has been analysed in Halsbury’s Laws of England (4th Edition) Volume 34 paragraph 1 (para 3) as follows : “Negligence is a specific tort and in any given circumstances is the failure to exercise that care which the circumstances demand. It was observed that a man is reckless in the sense required when he carries out a deliberate act knowing that there is some risk of damage resulting from the act but nevertheless continues in the performance of that act. Section 304-A discloses that criminality may be that apart from any mens rea, there may be no motive or intention still a person may venture or practice such rashness or negligence which may cause the death of other. Medical Negligence and Civil Liability– Medical negligence generally comes under civil liability except when the negligent act committed is so grievous that the injured party is not interested in compensation believes that the doctor who committed the act must be punished severely and charged under IPC for criminal liability. That I conceive to be the principle of tortious liability for negligence. 139. The act of “Negligence” is open to interpretation based on the actions of the defendant in each case. Rashness and negligence are essential elements under Section 304A. The decision of R. v Caldwell (supra) has been cited with approval in this case and it was observed that recklessness on the part of the doer of an act does presuppose that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual to the possibility that his act was capable of causing the kind of serious harmful consequences that the section which creates the offence was intended to prevent, and that the risk of those harmful consequences occurring was not so slight that an ordinary prudent individual would feel justified in treating them as negligible. Here the question is: Does the accused deserve to be punished for the outcome caused by his negligence? Mere carelessness is not enough. As observed by Sir Lawrence Jenkins, the act causing the deaths “must be the cause causans; it is not enough that it may have been the causa sine qua non”. A person who intentionally causes the bodily injury with knowledge that such act is likely to cause death must necessarily be a person who does an act with the intent to cause bodily injury likely to result in death. It is equally misleading to speak of criminal negligence since this is merely to use an expression in order to explain itself.”. Therefore, the sessions court sentenced the accused with two years of Rigorous Imprisonment (RI) along with 500 rupees fine. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which can be reasonably foreseen to be likely to cause physical injury to persons or property. Two elements either of which or both of which may be proved to establish the guilt of an accused are rashness/negligence, a person may cause death by a rash or negligent act which may have nothing to do with driving at all. However, to be awarded damages for injuries caused by any accident, you must prove that the individual or entity responsible for the accident: 1. On the contrary, a rash act is the culmination of overhasty decisions and recklessness on the part of the defendant. A negligent act is a breach of duty that causes harm/damage to another person unintentionally. Civil law & Consumer Protection Act in case of Medical Negligence. Negligence is both civil as well as criminal wrong. On the contrary, a rash act is, Medical negligence is a breach of duty on the part of the defendant who has a legal as well as a moral duty to look after his/her patient. After pointing out that in a civil case once negligence was proved, the degree of negligence was irrelevant, Lord Ellenborough, the Lord Chief Justice, said. They can only be charged in either of the two conditions. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e., gross or of a very high degree. Medical Negligence basically is the misconduct by a medical practitioner or doctor by not providing enough care resulting in breach of their duties and … Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The following observations of the Supreme Court are worth taking note of. Criminal negligence is gross and culpable neglect, that is to say, a failure to exercise that care and failure to take that precaution which, having regard to the circumstances, it was the imperative duty of the individual to take. THE REQUIREMENTS OF FILING CRIMINAL LIABILITY OF A PERSON FOR CAUSING DEATH BY NEGLIGENCE UNDER SECTION 304A OF INDIAN PENAL CODE IPC – 1860 Initially, the penal Code had no provision for punishment in cases where person caused death of another by negligence. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. This was a case where a man who practised as an accoucheur, owing to a mistake in his observation of the actual symptoms, inflicted on a patient terrible injuries from which she died. So, to this extent, even if one ascribes to ‘reckless’ only the restricted meaning adopted by the Court of Appeal in Stephenson and Briggs, of foreseeing that a particular kind of harm might happen and yet going on to take the risk of it, it involves a test that would be described in part as ‘objective’ in current legal jargon. Thus Section 304-A was inserted by the lndian penal Code (Amendment) Act […] They cannot be reprimanded for not using an alternative method that might or might not have brought the desired result. In other words, a rash act is primarily an over hasty act as opposed to a deliberate act but done without due care and caution. On the other hand, the state is responsible for bringing any criminal charges related to an automobile crash if they are warranted. In tort, (at common law) this is decided by considering whether or not a reasonable man in the same circumstances would have realised the prospect of harm and would have stopped or changed his course so as to avoid it. The apex court relied on Jacob’s case (6) , in which it was held that the degree of liability for negligence in criminal law has to be higher than that in civil law. Stated differently, Part-II comes into play when death is caused by doing an act with the knowledge that it is likely to cause death and when such act is the infliction of a bodily injury, the infliction must not be intentional. The charge of criminally negligent driving requires the driver to be solely or entirely responsible for the accident because of their negligence or rashness. It may consist in omitting to do something which ought to be done or in doing something which ought to be done either in a different manner or not at all. Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.”. Medical Negligence under Section 304A of IPC. The death so caused is not the determining factor. It is not necessary to refer to other decisions, for as we have already said this view has been generally accepted. The line between civil and criminal negligence is thin. monetary compensation can be one of the legal consequences in case of negligent or rash act done by any medical professional that can be done by seeking legal remedy in civil courts or consumer forums. It applies only to such acts which are rash and negligent and are directly the cause of death of another person. The only state of mind which is deserving of punishment is that which demonstrates an intention to cause harm to others, or where there is a deliberate willingness to subject others to the risk of harm. There must be mens rea…….. It is only when this is so that the doer of the act is acting ‘recklessly’ if, before doing the act, he either fails to give any thought to the possibility of there being any such risk or, having recognized that there was such risk, he nevertheless goes on to do it”. Negligence by Professionals The words “not amounting to culpable homicide” in the Section are very significant and it must therefore be understood that intentionally or knowingly inflicted violence directly and wilfully caused is excluded. The difference between the two is what marks off a civil from a criminal liability. Lord Atkin in his speech  stated: (All ER p. 556 C), “Simple lack of care such as will constitute civil liability is not enough. But the nature and extent of the injury or damage will be irrelevant in fixing criminal liability for negligence under the sections. According to Lord Atkin, “the principle to be observed is that cases of manslaughter in driving motor cars are but instances of a general rule applicable to all charges of homicide by negligence. Observation and experience enable us to judge of the connection between men’s conduct and their intentions. This blog will initially explain the theoretical part of negligence followed by what people actually face in the real-life scenario. “Negligence”, says the Restatement of the law of Torts published by the American Law Institute (1934) Vol. On the other hand, the state is responsible for bringing any criminal charges related to an automobile crash if they are warranted. What amounts to negligence depends on the facts of each particular case and the categories of negligence are never closed. It is no doubt true that the Supreme Court was dealing with an issue whether the role of the appellant as a doctor in that case amounted to a rash or a negligent act as to endanger the life of the patient. The submission so made cannot be countenanced inasmuch as it is based upon a total departure from the established terrain of thought running ever since the beginning of the emergence of the concept of negligence up to the modern times. It is only when this is so that the doer of the act is acting ‘recklessly’ if, before doing the act, he either fails to give any thought to the possibility of there being any such risk or, having recognised that there was such risk, he nevertheless goes on to do it.”. Moreover, It is also an offence under Indian Contracts Act, Consumer Protection Act and many more. In many cases of medical negligence, the professional might make a decision based on the complicated nature of the case presented to him/her. Il est intéressant de comparer ce principe de responsabilité avec les pays de Common law, où ce principe est très largement refusé comme étant trop large. The duty of care is owed only to those persons who are in the area of foreseeable danger, the fact that the act of the defendant violated his duty of care to a third person does not enable the plaintiff who is also injured by the same act to claim unless he is also within the area of foreseeable danger. In such a case, the defendant, – proving that both the plaintiff and the defendant, In civil negligence cases, the burden of proof lies with the plaintiff to prove that there was a breach of duty by the Company/Corporate. It was pointed out that the criminality in such a case lay in running the risk of doing such an act with recklessness or indifference as to the consequences. Singh). As to what is meant by causa causans, has been explained by the Supreme Court in the case of Sushil Ansal v. State through Central Bureau of Investigation, (2014)6 SCC 173, as under : “As to what is meant by causa causans we may gainfully refer to Black’s Law Dictionary (Fifth Edition) which defines that expression as under: “Causa causans. Definition of criminal conspiracy. The essential ingredient of mens -rea cannot be excluded from consideration when the charge in a criminal court consists of criminal negligence. The breach of duty has to directly damage the plaintiff. IPC Section 120B. The word ‘negligence’ denotes, and should be used only to denote, such blameworthy inadvertence, and the man who through his negligence has brought harm upon another is under a legal obligation to make reparation for it to the victim of the injury who may sue him in tort for damages. 299 and 300, I.P.C. Any act under Section 304(a) is a bailable offence under the IPC. “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 both.”. If so, should the defendant bear the loss in this particular set of circumstances? A bare reading of the aforesaid sections would show that there is no difference between an ordinary crime committed by a criminal and the act of negligence done by a doctor while treating his patient. Smith v. Emperor’, AIR 1926 Cal 300 (C), that criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused. The number of persons affected by a single act of negligence does not affect the decree of negligence.”. Apart from criminal negligence, a doctor can also be punished for various other offences as stated in the Indian Penal Code 1860 (45 of Mere negligence cannot be construed to mean rashness. There is, in other words, a disregard for the possible consequences. They can be ascertained only from external and visible acts. Owing to the influence of English Law, the original Indian Penal Code had provisions for culpable homicide under Section 299. This, however, is the classic definition of recklessness, which is conceptually different from negligence and which is widely accepted as being a basis for criminal liability. The defence claimed that the girl entered the road out of nowhere. Tort or civil negligence is the failure of one person to act with “reasonable” care in his dealings with others so as not to cause injury or damage. After completion of the investigation, charge- sheet was filed. It would thus, appear that if such bodily injury as is likely to cause death is intentionally caused and results in the death of the victim, the case would fall under Part-I and not under Part-II. Moreover, It is also an offence under Indian Contracts Act, Consumer Protection Act and many more. Negligence vs. Recklessness. Attention was also drawn by Lord Atkin to a passage in a considered judgment of Lord Hewart, Lord Chief Justice the passage to which attention was drawn was this: “In a criminal Court, on the contrary, the amount and degree of negligence are the determining questions. The Supreme Court made the following observations:-. He further pointed out that “it is difficult to visualise a case of death caused by “reckless” driving, in the connotation of that term in ordinary speech, which would not justify a conviction for manslaughter, but it is probably not all-embracing, for “reckless” suggests an indifference to risk, whereas the accused may have appreciated the risk, and intended to avoid it, and yet shown in the means adopted to avoid the risk such a high degree of negligence as would justify a conviction.”. It is vital for us to know and understand that the concept of negligence is derived out of the basic word that we all have been subject to. This, however, requires interpretation on part of the court; taking into account the level of rashness and deliberation in an action that led to an accident. Volume 10. Mere act of driving a vehicle mindful of the fact that the same needed some immediate repairs would not be a criminal act. To endanger life must be one of the most grave). Cases under IPC 304A and other. A professional is a all in all expert specialized in the respective field. There must be ‘mens rea’.”. CIVIL LIABILITYA doctor can be held liable for negligence in a civil case. While on this aspect, it is also instructive to refer to two English cases. In the said case, a bus was going from Ahrauli towards Kailaras. In an earlier case Lord Ellenborough had pointed out that to substantiate the charge of manslaughter the prisoner must be found to have been guilty of criminal misconduct arising either from the grossest ignorance or the most criminal inattention. The incident of a motor vehicle crash leading to the death of people will not be enough to charge someone under Section 304(a) for negligent driving. It was observed that :- “Nevertheless, to decide whether someone has been ‘reckless’, whether harmful consequences of a particular kind will result from his act, as distinguished from his actually intending such harmful consequences to follow, does call for some consideration of how the mind of the ordinary prudent individual would have reacted to a similar situation. This is for the reason the law of tort is ultimately not concerned with the moral culpability of the defendant, even if the language of fault is used in determining the standard of care. The word ‘negligence’, therefore, in our jurisprudence is used to denote blameworthy inadvertence, and the man who through his negligence has brought harm upon another is under a legal obligation to make reparation for it to the victim of the injury, who may sue him in tort for damages. IPC Chapter 09 Indian Penal Code 1860. According to the dictionary meaning ‘reckless’ means ‘careless’, ‘regardless’ or heedless of the possible harmful consequences of one’s acts’. Probably, of all the epithets that can be applied ‘reckless’ most nearly covers the case.”. Unlawful assembly. … the proof, in civil and criminal proceedings. The culpability to be criminal should be such as concerns not merely the person injured or property damaged but the safety of the public on the road. In such a case, the Court allows the defendant to make bail by paying a surety amount along with a bail bond at the police station. Punishment of criminal conspiracy; IPC Chapter 6 - Of Offences Against The State 12 IPC Section 121.Waging, or attempting to wage war, or abetting waging of war, against the Government of India Awareness of public, patients and the press Visual media. As the law of negligence emerged in the first half of the 19th century it became the anthropomorphic embodiment of the standard of care required by law. 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