Breach of Duty and the Standard of Care

Held. Negligence is the breach of a duty by omitting what a reasonable man would do or doing what a prudent and reasonable man would not, and its components are duty, breach and resulting damage. Professional negligence calls for a treatment with a difference: a simple lack of care, an error of judgment or an accident is not negligence, and so long as a doctor follows a practice acceptable to the medical profession of the day he is not liable merely because a better alternative was available or a more skilled doctor would not have followed it; what must be seen is whether the precautions were taken which the ordinary experience of men has found sufficient. For criminal liability the degree must be gross.

Why it matters here. It is the Indian statement of the professional standard, and chapter [Medical Negligence] takes it further. Kusum Sharma v. Batra Hospital and Medical Research Centre, (2010) 3 SCC 480, restates it and adds that medical professionals are entitled to protection so long as they perform their duties with reasonable skill and competence in the interest of their patients.

The standard rises with what is charged for it

This is an Indian refinement worth knowing, and it comes from a case a student can remember.

Facts. Klaus Mittelbachert v. East India Hotels Ltd, AIR 1997 Del 201, decided on 3 January 1997. A German co-pilot staying at a five star hotel in New Delhi dived from the hotel's three metre spring board into its swimming pool, struck his head on the bottom because the pool was too shallow for that board, and was paralysed; he suffered for thirteen years and died before the suit was decided.

Held. A five star hotel charging a high price owes a correspondingly high degree of care as to the quality and safety of its structure and services. The pool did not meet even the minimum, let alone the preferred, standards of safety, and the spring board should have been removed when the standards were revised in 1970. A general notice that guests use the facilities at their own risk cannot soften the duty, since one who extends an invitation cannot then say the invitee accepted the risk. The suit was decreed for Rs. 50 lakhs with interest at six per cent from 27 September 1985.

Why it matters here. It ties the standard of care to the service professed and the price charged: the same act may be reasonable in a dharamshala and negligent in a luxury hotel.

Proving the breach

The burden is on the plaintiff. Where the accident is of a kind that does not ordinarily happen without negligence, and the thing that caused it was under the defendant's control, the maxim res ipsa loquitur helps him, and chapter [Res Ipsa Loquitur] works it out. Municipal Corporation of Delhi v. Subhagwanti, AIR 1966 SC 1750, and Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co., AIR 1977 SC 1735, are the two Indian illustrations.

A worked example

A school takes forty children on a picnic to a river.

Magnitude of the risk. Children near moving water; the likelihood of somebody entering the water is high.

Seriousness. Drowning is fatal; the gravity is at its maximum.

Utility. A picnic has social value, but it is not an ambulance run; the utility will not excuse much.

Cost of precautions. Two extra teachers, a rope line and a headcount every fifteen minutes cost little.

Conclusion. A reasonable school would take those precautions, and a school that took none has broken its duty. If the school had advertised itself as providing specialist adventure supervision and charged for it, Klaus Mittelbachert suggests that the standard expected of it would be higher still.

What it does NOT mean

It does not mean every accident is a breach. Jacob Mathew says an accident or an error of judgment is not proof of negligence.

It does not mean the defendant's best efforts suffice. The standard is objective; a beginner is judged as a competent person.

It does not mean following custom is always enough. Common practice is strong evidence, and a court may still hold the practice careless.

It does not mean cost is irrelevant. The burden of precautions is one of the four factors.

Quick revision

1. Breach is measured against the reasonable person, objectively.
2. Four factors: magnitude of the risk, seriousness of the injury threatened, utility of the conduct, and the cost and practicability of precautions.
3. Inexperience is no excuse; a learner is judged as a competent driver.
4. Jacob Mathew v. State of Punjab, AIR 2005 SC 3180: a professional who follows a practice acceptable to his profession is not liable merely because a better course existed; criminal negligence must be gross.
5. Kusum Sharma v. Batra Hospital and Medical Research Centre, (2010) 3 SCC 480: protection so long as duties are performed with reasonable skill and competence.
6. Klaus Mittelbachert v. East India Hotels Ltd, AIR 1997 Del 201: the standard rises with the service professed and the price charged; a disclaimer notice does not soften it; Rs. 50 lakhs decreed.
7. The burden of proving breach is on the plaintiff, assisted where it applies by res ipsa loquitur.

Test yourself

1. How does a court decide whether a duty of care has been broken? By comparing the defendant's conduct with that of a reasonable person in his position, objectively and without regard to his personal capacities, so that inexperience is no excuse. How much care that requires is fixed by four factors: the magnitude of the risk, that is, the likelihood of harm; the seriousness of the injury threatened, so that a grave risk demands more care even if it is improbable; the utility of the defendant's conduct, so that a socially valuable activity may justify a risk that a trivial one would not; and the cost and practicability of the precautions, since the law asks for precautions a reasonable person would take rather than the elimination of every risk. Compliance with common practice is strong evidence that no breach occurred but is not conclusive, because a practice may itself be careless.

2. What standard is applied to a professional, and what is the Indian authority? A person who professes a special skill is judged by the standard of an ordinarily competent member of that profession, not by that of the most eminent practitioner. In Jacob Mathew v. State of Punjab, AIR 2005 SC 3180, the Supreme Court adopted that standard for India, holding that professional negligence calls for a treatment with a difference; that a simple lack of care, an error of judgment or an accident is not negligence; that so long as a doctor follows a practice acceptable to the medical profession of the day he is not liable merely because a better alternative existed or a more skilled doctor would have chosen differently; and that what must be seen is whether the precautions taken were those which the ordinary experience of men has found sufficient. Kusum Sharma v. Batra Hospital and Medical Research Centre, (2010) 3 SCC 480, restates the principles and adds that professionals are entitled to protection so long as they act with reasonable skill and competence in the patient's interest.

3. Does the standard of care vary with what the defendant charges? Indian authority says it does, for a service provider who holds himself out as offering a superior service. In Klaus Mittelbachert v. East India Hotels Ltd, AIR 1997 Del 201, a guest was paralysed diving from a spring board into a hotel pool that was too shallow for it, and the Delhi High Court held that a five star hotel charging a high or fancy price owes a correspondingly high degree of care as to the quality and safety of its structure and services, that it must update itself to the latest safety standards rather than rely on those current when it was built, and that a general notice that guests use the facilities at their own risk cannot soften that duty because one who extends an invitation cannot say the invitee accepted the risk. The suit was decreed for Rs. 50 lakhs with interest.