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. – The immediate cause; the last link in the chain of causation.”. 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. It was observed by Lord Diplock that “the reasonable man” was comparatively late arrival in the laws of provocation. 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. This is called civil liability or civil negligence. The difference between the two is what marks off a civil from a criminal liability. Section 304A of the Indian Penal Code, 1860 states that: ‘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.” 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. He reiterated his opinion in R. v. Caldwell and dealt with the concept of recklessness as constituting mens rea in criminal law. 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 M.L.PANDIA The Consumer Protection Act, 1986. Therefore, the mere fact that the fire would not have taken place if the appellant had not allowed burners to be put in the same room in which turpentine and varnish were stored, would not be enough to make him liable under S.304-A, for the fire would not have taken place, with the result that seven persons were burnt to death, without the negligence of Hatim. The High Court was of the view that on the basis of the material available, the charges were rightly framed and the intention of the appellant could be gathered at the time when the evidence would be adduced. 138. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution. Lord Atkin pointed cut that the connotations of ‘mens rea’ are not helpful in distinguishing between degrees of negligence, nor do the ideas of crimes and punishments in themselves carry a jury much further in deciding whether, in a particular case, the degree of negligence shown is a crime and deserves punishment. LAWSON Négligence in thé civil law Oxford Clarendon Press 1950 341 pages . Section 304 of IPC deals with the provision of culpable homicide not amounting to murder. While on this aspect, it is also instructive to refer to two English cases. 2 du Code pénal envisage la faute d'imprudence : « lorsque la loi le prévoit, il y a délit en cas d'imprudence, de négligence ou de mise en danger délibérée de la personne d'autrui ».. Negligence is both civil as well as criminal wrong (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 … Though the term ‘negligence’ has not been defined in the Code, it may be stated that 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 reasonable and prudent man would not do. These are clearly reckless. But whatever epithet be used and whether an epithet be used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others, as to amount to a crime against the State and conduct deserving punishment.”. [The above discussion on relevancy of Section 304 IPC quoted from a decision of Gujarat High Court in the case of Girishbhai Maganlal Pandya Vs. State of Gujarat (Criminal Misc. The compensation awarded was about Rs. A negligent act is a breach of duty that causes harm/damage to another person unintentionally. It must be pointed out that rashness and negligence are not the same things. 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”. Generally speaking, it is the amount of damages incurred which is determinative of the extent of liability in tort; but in criminal law it is not the amount of damages but the amount and degree of negligence that is determinative of liability. Criminal Law And Medical Negligence Indian Penal Code has laid down the medical professional on a different footing as compared to an ordinary human. The event may be harmless or harmful, if harmful, the question rises whether there is legal liability for it. The difference between the two is what marks off a civil from a criminal liability. 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. The Advance Law Lexicon edited by Justice Chandrachud, former Chief Justice of India defines Causa causans as follows: “Causa causans. The following observations of the Supreme Court are worth taking note of. Section 304-A was added to the IPC by the Amendment Act, of 1870. Wearing garb or carrying token used by soldier, sailor or airman. This aspect is also adverted to in paragraph 1374 of Halsbury’s Laws of England, 3rd Edn. He was not supposed to be admitted to any hospital in lieu of his degrading health. If so, should the defendant bear the loss in this particular set of circumstances? In case of criminal negligence, you can file a criminal case under IPC Section 304A. 140. 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. They can only be charged in either of the two conditions. 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. 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. To endanger life must be one of the most grave). The accused who had manufactured wet paints without a licence was acquitted of the charge under section 304A because it was held that the mere fact that he allowed the burners to be used in the same room in which varnish and turpentine were stored, even though it would be a negligent act, would not be enough to make the accused responsible for the fire which broke out. The provisions of this Section apply to cases where there is no intention to cause death and no knowledge that the act done in all probabilities will cause death. Their Lordships have opined that there is a marked difference as to the effect of evidence viz. In the accident, the bus which was being driven by the appellant was badly damaged and as a result of the accident, several passengers got injured and two persons died. On the other hand, the state is responsible for bringing any criminal charges related to an automobile crash if they are warranted. For instance, using faulty equipment or expired medicines in the hospital. 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. Section 304A was inserted by the Indian Penal Code (Amendment) Act, 1870 (Act XXVII of 1870) and reads thus: 304A. air and water pollution caused by industries; involving themselves in different lobbies for their own profit by exchanging money with political parties; releasing confidential information without permission; recording personal conversations and breaching privacy; harming or cheating the shareholders’ out of their profit. 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. Doing an act with the intent to kill a person or knowledge that doing an act was likely to cause a person’s death is culpable homicide. The section has application to those cases where there is neither intention to cause death nor knowledge that the act in all probability will cause death. The degree of care required in the particular case depends on the surrounding circumstances, and may vary according to the amount of the risk to be encountered and to the magnitude of the prospective injury. The degree of care required in the particular case depends on the accompanying circumstances, and may vary according to the amount of the risk to be encountered and to the magnitude of the prospective injury.”. The first part of the Section is generally referred to as “Section 304 Part-I”, whereas the second part as “Section 304, Part-II”. IPC Chapter 5A - Criminal Conspiracy 2 IPC Section 120A. In Halsbury’s Laws of England, 3rd Edn. 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. Questions of criminal liability are seldom solved by simply asking whether the test is subjective or objective.”. The charge of criminally negligent driving requires the driver to be solely or entirely responsible for the accident because of their negligence or rashness. While it was near a Railway crossing, an accident took place. That I conceive to be the principle of tortious liability for negligence. 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.”. 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. A Bench of the Allahabad High Court held, following the decisions in – ‘Empress of India v. Idu Beg’, 3 All 776 (B) and – ‘H.W. Then the question whether the conduct of the accused amounted to culpable rashness or negligence depends on the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient and this depends on the circumstances in each case.”, The Supreme Court has explained in details as to when criminal liability would be attracted in cases of medical negligence. Thus, there is a fine distinction between Section 304 and Section 304A. 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. This is because in civil law two questions are at issue: Was the defendant negligent? 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. Therefore this provision is directed at offences outside the range of Ss. Questioning the correctness of the charges framed, the revision petition was filed. 142. In order to objectify the law’s abstractions like “care” “reasonableness” or “foreseeability” the man of ordinary prudence was invented as a model of the standard of conduct to which all men are required to conform. and obviously contemplates those cases into which neither intention nor knowledge enters. There must be ‘mens rea’.”. The Supreme court did allow probation after regarding the context of the case. 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 breach of duty has to directly damage the plaintiff. The plaintiffs claimed negligence on the doctor’s part while procuring oxygen cylinder for their father. 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. The act of “Negligence” is open to interpretation based on the actions of the defendant in each case. Culpable rashness is acting with consciousness that mischievous consequences are likely to follow although the individual hopes, even though he hopes sincerely, that such consequences may not follow. Observation and experience enable us to judge of the connection between men’s conduct and their intentions. 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. A professional is a all in all expert specialized in the respective field. The distinction is often an intricate matter and depends on the particular time, place and circumstances. Being member of unlawful assembly. In 1870, Act 27 of the Indian Penal Code added Section 304 a and b as an amendment. 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. Any rash or negligent act whereby death of any person is caused becomes punishable. At that time negligence was nowhere defined in IPC but fall outside the offenses ranging from Section 299 and 300 of IPC. The expression “rash or negligent act” as occurring in Section 304-A IPC has to be read … 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. In order to hold the existence of criminal rashness or criminal negligence it shall have to be found out that the rashness was of such a degree as to amount to taking a hazard knowing that the hazard was of such a degree that injury was most likely imminent. It resides in the proximity of the reckless state of mind to the state of mind present when there is an intention to cause harm. The proximate cause of an injury is the primary or moving cause, or that which in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury and without which the accident could not have happened, if the injury be one which might be reasonably anticipated or foreseen as a natural consequence of the wrongful act. On September 2, 2011, the Bombay High Court gave a reasoned and detailed order in the civil suit against Dr Desai, awarding compensation to the patient’s relatives in regard to the tort of medical negligence and breach of contract committed by the doctor. Owed you a “duty of care”; 2. Under Civil law, a case for Medical Negligence may be initiated under Consumer Protection Act or by means of filing a suit in a civil court against a private medical institution or a practitioner who are not providing medical care free of charges. What may be negligence in civil law may not necessarily be negligence in criminal law. Pursuing compensation for damages from your accident is a civil matter between private parties. Owing to the influence of English Law, the original Indian Penal Code had provisions for culpable homicide under Section 299. Vol. In many cases of medical negligence, the professional might, proving that the plaintiff’s injury is a result of partaking in a dangerous recreational activity like drugs. The common habit of lawyers to qualify the word “negligence” with some moral epithet such as ‘wicked’ ‘gross’ or ‘culpable’ has been most unfortunate since it has inevitably led to great confusion of thought and of principle. 304-A, I.P.C, is made out? 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. Almost all civil cases center on the legal theory of negligence – the failure to use reasonable care, resulting in someone else’s injury or damages. Eminent jurists and leading judgments have assigned various meanings to negligence. Abetment of act of insubordination by soldier, sailor or airman. On pourra préalablement lire un premier article sur les fondements et les fonctions de la responsabilité civile en d… The difference between the two is what marks off a civil from a criminal liability. 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. Thus Section 304-A was inserted by the lndian penal Code (Amendment) 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. The difference between recklessness and negligence is the difference between advertence and inadvertence they are opposed and it is a logical fallacy to suggest that recklessness is a degree of negligence. 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. He was charged under section 304 (a) of IPC for the negligent driving of a motor bus. From the point of view of civil law it may be appropriate to impose liability irrespective of moral blameworthiness. The breach of duty has to directly damage the plaintiff. The law, in my view, does not permit a man to be un-cautious on a hope however earnest or honest that hope may be. Negligence is an offense under tort, IPC, Indian Contracts Act, Consumer Protection Act and many more. The framework of the, Any act under Section 304(a) is a bailable offence under the IPC. For negligence to amount to an offence, the element of mens rea must be shown to exist. Probably, of all the epithets that can be applied ‘reckless’ most nearly covers the case.”. 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. 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.”. It was held that “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. At that time negligence was nowhere defined in IPC but fall outside the offenses ranging from Section 299 and 300 of IPC. Straight, J. made the following pertinent observations which have been quoted with approval by various Courts including the Supreme Court: “Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury, but without intention to cause injury, or knowledge that it will probably be caused. That which is nearest in the order of responsible causation. The Section applies only to such acts which are rash or negligent and are directly the cause of death of another person. The law sets parameters but also keeps spaces open for interpretation because each case has a different context. Negligence is not intentional, it is an accident, and we all know that accidents will happen. CIVIL LIABILITYA doctor can be held liable for negligence in a civil case. Every civil negligence is not criminal negligence, and for civil negligence to become criminal it should be of such a nature that it could be termed as gross negligence. 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. This blog will initially explain the theoretical part of negligence followed by what people actually face in the real-life scenario. This is a very different question from the civil context and must be answered in terms of mens rea. 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. The punishment for a person who was liable in a civil negligence case only extends to the extent of damage caused to the plaintiff i.e compensation for the damages. Section 304-A IPC applies to cases where there is no intention to cause death and no knowledge that the act done, in all probabilities, will cause death. In most cases where negligence has been established, the answer to the second question will be in the affirmative, unless the doctrine of remoteness or lack of foresee ability militates against a finding of liability, or where there is some policy reason precluding compensation. The original Indian Penal Code, 1860 had no provision providing punishment for causing death by negligence. 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