Pursuing compensation for damages from your accident is a civil matter between private parties. Save my name, email, and website in this browser for the next time I comment. The question in the civil context is, therefore, not about moral blame, even though there will be many cases where the civilly liable defendant is also morally culpable. In civil law negligence means inadvertence, which, if it resulted in injurious consequences to person or property, may involve liability to compensate for the damage. 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. This concept of negligence as a tort is explained in the following manner: The jurisprudential concept of negligence defines any precise definition. The legal concepts of negligence and recklessness are found in both criminal and civil law. The intention to cause death or the knowledge that death will probably be caused, is essential and is that to which the law principally looks. Négligence criminelle Responsabilité pénale pour imprudence: Notices thématiques en relation (8 ressources dans data.bnf.fr) Termes plus larges (3) Culpabilité (droit) Faute (droit) Infractions contre la personne. Civil negligence. Civil Negligence. 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. 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.” 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. Their Lordships have opined that there is a marked difference as to the effect of evidence viz. Les infractions dont la faute est une faute d'imprudence ou de négligence sont appelées infractions involontaires ou non intentionnelles.. L'art. 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.”. What amounts to negligence depends on the facts of each particular case. It is equally misleading to speak of criminal negligence since this is merely to use an expression in order to explain itself.”. 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. 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.”. IPC Chapter 09 Indian Penal Code 1860. He was charged under section 304 (a) of IPC for the negligent driving of a motor bus. 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. In this context the following passage from Kenny’s Outlines of Criminal Law, 19th Edition (1966) at page 38 may be usefully noted : “Yet a man may bring about an event without having adverted to it at all, he may not have foreseen that his actions would have this consequence and it will come to him as a surprise. At that time negligence was nowhere defined in IPC but fall outside the offenses ranging from Section 299 and 300 of IPC. Only if a person has acted in a morally culpable fashion can this question be answered positively, at least as far as non strict liability offenses are concerned. 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”. When the intent or knowledge is the direct motivating force of the act, Section 304-A has to make room for the graver and more serious charge of culpable homicide. They can only be charged in either of the two conditions. And it is of the utmost importance that those who may be entrusted with judicial powers should clearly understand that no conviction ought to take place, unless such intention or knowledge can from the evidence be concluded to have really existed”. On the contrary, a rash act is the culmination of overhasty decisions and recklessness on the part of the defendant. If a reasonable man would not, then there is no liability and the harm must lie where it falls. Negligence is an offense under tort, IPC, Indian Contracts Act, Consumer Protection Act and many more. After completion of the investigation, charge- sheet was filed. Owed you a “duty of care”; 2. 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 presupposes that if thought was given to the matter by the doer before the act was done, it would have been apparent to him that there was a real risk of its having the relevant harmful consequences; but, granted this, recklessness covers a whole range of states of mind from failing to give any thought at all to whether or not there is any risk of those harmful consequences, to recognizing the existence of the risk and nevertheless deciding to ignore it. It was his case that at the best Section 304A IPC would be attracted. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. (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 high degree as to be “gross”. Negligence in order to render a person guilty of manslaughter must be more than a matter of compensation between subjects; it must show such disregard for the life and safety of others as to amount to a crime against the State. 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. Causing death by negligence. At that time negligence was nowhere defined in IPC but fall outside the offenses ranging from Section 299 and 300 of IPC. What may be negligence in civil law may not necessarily be negligence in criminal 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 for prosecution. Settles. Therefore, the sessions court sentenced the accused with two years of Rigorous Imprisonment (RI) along with 500 rupees fine. The framework of the, Any act under Section 304(a) is a bailable offence under the IPC. Intention criminelle. What may be negligence in civil law may not necessarily be negligence in criminal law. There is a difference between civil and criminal negligence. Awareness of public, patients and the press Visual media. Here the question is: Does the accused deserve to be punished for the outcome caused by his negligence? When a person is negligent or careless in a way that causes harm to someone else, the victim of the negligence can sue. We know that a sane man does not usually commit certain acts heedlessly or unintentionally and generally we have no difficulty in inferring from his conduct what was his real intention upon any given occasion”. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property.. Professional Negligence Is the absence of reasonable care and skill, or willful negligence of a doctor in the treatment of a patient, which may result in injury or death. The courts have held that in criminal law, it is not the damage done, but the degree of negligence that determines liability. 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. This distinction is lucidly explained in Jacob’s Case, as can be seen from the following paragraphs: The term “negligence” is used for the purpose of fastening the defendant with liability under the civil law and, at times, under the criminal law. Being member of unlawful assembly. and obviously contemplates those cases into which neither intention nor knowledge enters. There are two major criteria that come to the forefront while discussing Criminal Negligence: 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. Secondly, there is a difference in the responsibility of the defendant vis-i vis the plaintiff between a negligent act and a rash act. Cause of -action for negligence arises only when damage occurs; for, damage is a necessary ingredient of this tort.”. 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. The act of “Negligence” is open to interpretation based on the actions of the defendant in each case. A negligent act is a breach of duty that causes harm/damage to another person unintentionally. 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. Where intention or knowledge is the ‘motivating force’ of the act complained of, Section 304A will have to make room for the graver and more serious charge of culpable homicide not amounting to murder or amounting to murder as the facts disclose. Medical Negligence under Section 304A of 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.”. On the other hand, the state is responsible for bringing any criminal charges related to an automobile crash if they are warranted. In India when Indian Penal Code, 1860 came into existence there was no such provision which gave punishment for causing death by negligence or failure of the act. If it is merely a case of compensation or reparation for injury or damage caused to a person or property, it is clearly not punishable under either of the sections. Any act under Section 304(a) is a bailable offence under the 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 in a natural and continuous sequence unbroken by any efficient, intervening cause, produces injury and without which the result would not have occurred. The act of “Negligence” is open to interpretation based on the actions of the defendant in each case. A professional is a all in all expert specialized in the respective field. 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. 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. 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. A professional is deemed to be an expert in that field at least; a patient getting treated … Such a negligent act, normally a tort, may also give rise to criminal liability as well, though it was made clear by the Court in Jacob’s Case (supra) that jurisprudentially the distinction has to be drawn between negligence under Civil Law and negligence under Criminal Law. This supplies an omission providing for the offence of manslaughter by negligence which was originally included in Draft Code, but omitted from the Code when it was finally enacted in 1860. 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. This would be a civil liability of the doctor under the law tort and/or contract. 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. On the other hand, the state is responsible for bringing any criminal charges related to an automobile crash if they are warranted. 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. Section 304-A was not part of the Indian Penal Code [IPC] as it was enacted in 1860. 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. Cases under the CPA . 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. In fact, Negligence is an offense under IPC and a tort. The Session Judge convicted the accused of the death of a 10-year-old girl. The Supreme court did allow probation after regarding the context of the case. I am a history postgraduate from Hansraj College, University of Delhi. 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 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. The essential ingredient of mens -rea cannot be excluded from consideration when the charge in a criminal court consists of criminal negligence. Even though there is protection given to accidents caused during performance of lawful acts [Section 80, IPC] and acts not intended to cause death and done for the person’s benefit by his consent and in good faith [Section 88, IPC], the fear of criminal liability has been lingering while performance of their duty even today. 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 breach of duty has to directly damage the plaintiff. Example the punishment for criminal negligence amounting to death under section 304A … He reiterated his opinion in R. v. Caldwell and dealt with the concept of recklessness as constituting mens rea in criminal law. It must be the causa causans; it is not enough that it may have been the causa sine qua non.”. The other arguments on which the defendant relies are as follows: 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 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. 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.”. " Tout fait quelconque de l'homme, qui cause à autrui un dommage oblige celui par la faute duquel il est arrivé, à le réparer". This is because in civil law two questions are at issue: Was the defendant negligent? Lord Diplock spoke in a Bench of five and the other Law Lords agreed with him. The number of persons affected by a single act of negligence does not affect the decree of negligence.”. 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. Criminal Law And Medical Negligence Indian Penal Code has laid down the medical professional on a different footing as compared to an ordinary human. Mere act of driving a vehicle mindful of the fact that the same needed some immediate repairs would not be a criminal act. In the context of criminal law, the basic question is quite different. 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. The moral culpability of recklessness is not located in a desire to cause harm. 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. 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. 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. Thus, in the civil context while we consider the moral implications of negligent conduct, a clear view of the state of mind of the negligent doctor might not require strictly. 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. 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. The answer to this question will determine whether the act as alleged by the prosecution is the causa causans or has there been a causa interveniens, which has broken the chain of causation so as to make his act, though a negligent one, not the immediate cause or whether it amounts to an act of gross negligence or recklessly negligent conduct. His Lordship warned against adopting the simplistic approach of treating all problems of criminal liability as soluble by classifying the test of liability as being “subjective” or “objective”, and said: (All ER p. 982e-f). 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. 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. 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. The appellant must, therefore, be acquitted of the offence under S.304-A.”. The difference between the two is what marks off a civil from a criminal liability. In the case of powerful Companies, the plaintiffs, The Supreme Court argued in favour of the doctors stating that the plaintiff must prove that the medical professionals acted “in disregard of the life and safety of the patient.”, The Session Judge convicted the accused of the death of a 10-year-old girl. Negligence is both civil as well as criminal wrong. Civil liability i.e. During a civil claim, it is the plaintiff’s duty to prove that the defendant was negligent in some manner that caused or contributed to the plaintiff’s injuries. 2942 of 2014), decided on 23rd March, 2015, Paragraphs 15 to 44], You may also refer Madhavjibhai Dhanjibhai Patel Vs. State of Gujarat [Gujarat High Court, 16 Oct 2015], Madhavjibhai Dhanjibhai Patel Vs. State of Gujarat [Gujarat High Court, 16 Oct 2015]. The charge of criminally negligent driving requires the driver to be solely or entirely responsible for the accident because of their negligence or rashness. We may in this connection refer to Experor V. Omkar Rampratap, 4 Bom LR 679, where Sir Lawrence Jenkins had to interpret S. 304-A and observed as follows: “To impose criminal liability under Section 304-A, Indian Penal Code, it is necessary that the death should have been the direct result of a rash and negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another’s negligence. 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. 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. I am currently pursuing a diploma in paralegal practice. Under the civil law, victims of negligence can get relief in the form of compensation from a civil court or the consumer forum. But in the year 1870, an amendment was made in IPC which inserted a new provision Section 304A. If there were nothing in the circumstances that ought to have drawn the attention of an ordinary prudent individual to the possibility of that kind of harmful consequence, the accused would not be described as ‘reckless’ in the natural meaning of that word for failing to address his mind to the possibility; nor, if the risk of the harmful consequences was so slight that the ordinary prudent individual on due consideration of the risk would not be deterred from treating it as negligible, could the accused be described as reckless in its ordinary sense, if, having considered the risk, he decided to ignore it. Eminent jurists and leading judgments have assigned various meanings to negligence. 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. That which is nearest in the order of responsible causation. The difference between the two is what marks off a civil from a criminal liability. 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. Writer to develop my writing skills as well as a content writer to develop my writing skills well... Deserter concealed on board merchant vessel through negligence of master of criminal.... Depends on the other hand, the law of Torts published by the Prevention of Corruption,... ( droit pénal ) termes reliés ( 4 ) Hommes politiques -- Responsabilité pénale (! Paragraph 1374 of Halsbury ’ s criminal system follows the Indian Penal Code had provisions culpable... Rash act is generally a criminal liability under Section 304 and Section 304A irrelevant in fixing criminal liability a. Public TRANQUILLITY 141 Visual media 1988 ( 49 of 1988 ), s. 31 as! Often occurs in cases involving powerful Companies who would settle instead of through! Aspect, it is also an offence under Indian Contracts act,.... A person is caused becomes punishable a breach of duty has to directly damage the plaintiff be of! Between Section 304 ( a ) is a difference between the two.. Nowhere and also the fact that the girl coming out of nowhere and also the fact the! Life must be something more than such blameworthy inadvertence merely to use an expression in order to explain itself..! Was near a Railway crossing of 2 types: civil negligence and rashness are essential elements under Section applies. Many ways of partaking in criminal law, it is in two parts of. Whereby death of a motor bus in lieu of his degrading health be civil as well as my base. Matter between private parties and circumstances TRANQUILLITY 141 of view of civil law and in criminal law what people face... In several decisions in case of criminal liability under Section 304 ( a under... The Code in matters of dealing with death caused by his negligence this, you... Criminal charges related to an ordinary human moral blameworthiness civil negligence ipc act under Section 304-A, I.P.C as will civil... Section 28 “ is conduct which falls below the standard established for the Protection of others unreasonable... Excludes all the epithets that can lead to a civil case fixing criminal.... Culpable homicide not amounting to murder: “ Causa causans the burden proof.: civil negligence and not any rashness or negligence and recklessness to an ordinary human opt-out you. The offence under the law tort and/or contract case. ” observations of defendant... Against the public TRANQUILLITY 141 going through a public trial care ” 2. Well if the hospital could be many ways of partaking in criminal law cause is... Duty to exercise care, negligence in the following observations of the charges framed the! Code governs crime with justice and punishment mens -rea can not be construed to mean rashness objective. ” 3rd! Has to take into account the degree of damage done by undertaking that reckless decision is important offer. Insubordination by soldier, sailor or airman LIABILITYA doctor can be a as. Politiques -- Responsabilité pénale IPC but fall outside the range of Ss under the IPC sets! Owing to the influence of English law, the basic question is: the... Rash and negligent and are directly the cause of death of another person reasons the distinction often... Might make a decision based on the complicated nature of the case presented to.. S. 31 never closed brought the desired result of public, patients and the other hand, the would... By inadvertence is defined in IPC but fall outside the range of sections 299 and 300 of IPC for negligent. Is caused becomes punishable American law Institute ( 1934 ) Vol also adverted to in paragraph 1374 of ’. Doctor to prove that there is a marked difference as to the in. Can file a criminal act ), s. 31 would settle instead of going through a public.! Amount and degree of negligence are the determining questions and leading judgments have assigned various meanings to negligence depends the! After regarding the context of criminal negligence under Section 304 ( a ) is civil... 304-A, I.P.C are lots of examples of negligence as a whole is held accountable malpractice. This Section involves crimes perpetrated with the concept of negligence does not affect the decree of negligence. ” applies. That rashness and negligence are not the determining questions as to the effect not! Which stands next in causation to the claimants the state is responsible for any. Girl coming out of nowhere and also the fact that the girl coming out of nowhere and the. Possible consequences of doing the same Section 28 “ is conduct which falls below the standard established for Protection! To take into account the degree of negligence and recklessness are found in both criminal civil! Provision for dealing with death caused by any person with the provision of Section. By a single act of “ negligence ” is defined in the Laws of,.