Khairati Lal Khurana vs Govt. Of Nct Of Delhi
2001 Latest Caselaw 1305 Del

ORDER

Arijit Pasayat, C.J.

1. "Physician heal thyself'- says New Testament, Luke IV,23. This petition is by the father of an unfortunate boy who died on 7.9.1996, alleging that his son's loss of life was on account of callous attitude of medical authorities, more particularly respondent No.4 who at the relevant point was the Medical Superintendent (Nursing Homes).

2. A person has a fundamental right under Article 21 of the Constitution of India, 1950 (in short, the Constitution) of take steps in self-preservation in case of ailment. It is to be borne in mind that self- preservation of one's life is the necessary concomitant of the right to life enshrined in Article 21 of the Constitution-sacred, precious and inviolable. The importance and validity of the duty and right to self-preservation has a species in the right of self-defense in criminal law. Centuries ago thinkers of this Great Land conceived of such right and recognized it. Attention can usefully be drawn to verses, 1,18,20 and 22 in Chapter XVI of the Garuda Purana. (A Dialogue suggested between the Divine and Garuda, the bird)in the words of the Divine:

   "17

Vinea dehens kasyaapi                   Without the body how can one obtain
canpurushaatho                            no the objects of human life? Therefore
vidyate rak-                              protecting the body, which is the wealth
shet punyakarmaani                        one should perform the deeds of merit.
saadhyet.

18.

Rakshayatservadaatmaa-                    One should protect his body which is
Nammatman servasya bha-                   responsible for everything. He who
Ajanam Rakshana yatna                     protects himself by all efforts, will see
Maatishthejja vanbh-                      many suspicious occasions in life.
Adra ani pashyati 



Sharirarakshanopasyash                    The wise always undertake the 
kriyanti saryades budh-                   protective measures for the body.
Aih Nacchanti cha pune-                   Even the persons suffering from
Styaagamapi kushthaa-                   leprosy and other diseases do not
Diroginah                           wish to get rid of the body.



Aatmaiva yadi naat-                       If one does not prevent what is
Maanamahitebhhyo                          unpleasant to himself, who else will do it?
nivaarayet Konsyo                         Therefore, one should do what is
Hitakarasmaadaatmaanam                    good to himself."
Taarayishyati


 

 These aspects have been eloquently highlighted by the Apex Court in Surjit singh v. State of Punjab and others, 1996(2) Supreme-11.  

 

3. Linked with the right of self-preservation, is the anxiety of a person to see that he or his dependants do not-suffer on account of inadequate treatment. Such anxiety is normal human behavior. Right to life cannot be isolated from a healthy body which is the very foundation for all human activities. Life as embodied in Article 21 of the Constitution does not mean a mere animal existence. It has to mean a life befitting human dignity. Health of any person is an integral facet of his right to life. Article 25(2) of the Universal Declaration of Human Rights, 1948 assures that everyone has the right to a standard of living adequate for the health and well-being of himself and of his family... including medical care, measure for sickness and disability. Article 39(c) of the Constitution enjoins upon the State to direct its policies to secure the health and strength of workers. A healthy body is the very foundation for all human activities. That is why the adage "SARIRAMADYAM KHALU DHARMA SADHANAM". In a welfare State, therefore, it is the obligation of the State to ensure the creation and the sustaining of conditions congenial to good health. Several obligations of the State can be culled out from the provisions of Part IV of the Constitution. The State is required to effectuate them in order that the resultant pictured by the Constitution Fathers may become a reality. Maintenance and improvement of public health have to rank high as there are indispensable to the very physical existence of the community and on the betterment of these depends the building of the society which the Constitution makers envisaged. Attending to public health, therefore, is of high priority-perhaps the one at the top. These aspects have been eloquently dealt with by Apex court in Vincent. Union of India, . In order to lead a meaningful life every person should be physically fit and mentally alert. The Hospitals and persons manning it have a big role to play for keeping a person in such conditions.

4. Dealing with the question of right to health, and medical care of a workman, the Apex Court observed that it is a fundamental right. (See Consumer Education and Research Centre and others. v. Union of India and others, ). Security against sickness and disablement is a fundamental right under Article 25 of the Universal Declaration of Human Rights and Art. 7(b) of the International Convention of Economic, Social and Cultural Rights and under Articles 29(e), 38 and 21 of the Constitution (see. LIC of India and another v. Consumer Education and Research Centre and others ). We have highlighted these aspects to show the importance of hospitals in the society and the purpose of their existence. Inbuilt in this purpose is the desirability of dedication and sense of service of doctors. These should be dictated by desire to serve the people, provide healing touch to the patients and not greed for money, lure fore exploiting the helpless patients. They should give premium to blessings of those whom they treat and not extract a pound of flesh. Pt. Paramanand Katara v. Union of India and others, , the Apex Court in the context of medico-legal case has emphasized the need for rendering immediate medical aid to injured persons to preserve life and the obligations of the state as well as doctors in that regard. Providing adequate medical facilities for the people is an essential part of the obligations undertaken by the Government in welfare State. The Government discharges this obligation by running hospitals and health centres which provide medical care to the person seeking those facilities. Article 21 imposes and obligation on the State to safeguard the right to life of every person. Preservation of human life is thus of paramount importance. (See. Paschim Banga Khet Mazdoor Samity and others v. State of West Bengal and another ) But having good building,s costly equipments and highly educated and trained doctors in not sufficient. As noted above sense of service, dedication and desire to provide the healing touch has to be there in the doctors. Otherwise, right to life will become an illusion, a distant dream. Any denial of the constitutional right guaranteed under Article 21 has to be seriously viewed.

5. The sad turn of events as unfolded in the petition and highlighted during the hearing is essentially as follows:

Durgesh, son of the petitioner, was a student of the final year B.E. (Mechanical), in Delhi Engineering College and was a bright student. In April, 1996, he fall ill and complained of loss of appetite, nausea and vomiting. He was taken to All India Institute of Medical Sciences (in short, ALLMS) OPD in renal transplantation department. On 26.6.96, after investigations attending doctors formed an opinion that both the kidneys of the boy had been damaged resulting in renal failure and immediately transplantation surgery was necessary. Doctors showed their inability to perform surgery immediate because of a large number of persons waiting for similar transplantation. However , they suggested that in view of the grave situation, Durgesh may be operated in a private hospital. On the same day, he was given dialysis in Jaipur Golden hospital. Petitioner in order to save his son's life opted to donate one of his kidneys. Relevant tests were performed and doctors suggested that it would be acceptable to the body of his son. Petitioner came to know that dialysis is available at LNJP Hospital and as Durgesh's at LNJP Hospital recommended urgent renal transplantation as delay may lead to further complications. The petitioner a school teacher found himself unable to bear the burden of heavy expenditure of transplantation and approached the Director Health Services through Director of Education for financial sanction. Vice Principal of the School immediately forwarded the application on 27.7.1996 to the Director of Education. The said Director after due verification forwarded the case to the Director Health Services for immediate action. Petitioner requested the Director Health Services and respondent NO.4, the then Medical Superintendent (Nursing Homes) and pleaded for early sanction as life of his son was in danger. He met respondent No.4 and explained. the urgency. Role of respondent No.4 is a labeled to be dubious. Petitioner has gone to the extent of alleging that with ulterior and with a view to extract money, respondent NO.4 delayed the matter. Several personal requests did not yield any result and on 7.9.1996 Durgesh breathed his last. Ironically sanction came a week after his death, sanctioning the requisite amount.

6. Petitioner's grievance, amongst others are to the effect that loss of his eldest, son, a bright student, at the prime of youth, was on account of apathy and inhuman approach adopted by the respondents, more particularly, respondent No.4 Prayers in the writ petition are to the following effect:

(a) to issue an appropriate writ, order or direction directing a thorough investigation by an independent investigation agency into the facts and circumstances of the case regarding the sanction of the reimbursement of expenditure to be incurred by the petitioner over the treatment of his sone by Renal Transplantation as also the requests for such or similar nature received by the respondent, by an independent investigating agency of Delhi Police or Central Bureau of Investigation and upon receiving the report, issue an appropriate order or direction for registration of appropriate criminal cases against the officials involved;

(b) to issue an appropriate writ, order or direction directing the respondents to pay compensation of Rs.40.00 lakhs to the petitioner, which shall be ordered to be payable by the respondents No.2 and 4 and or such other officials who are found guilty of inaction in the matter of grant of sanction of reimbursement of medical expenditure for the Renal Transplantation of the son of the petitioner from their personal accounts;

(c) to issue any other or further order or direction as this Hon'ble Court may deem just and fit in the facts and circumstances of the case."

7. Respondents, more particularly respondents 1,2 and 4 have denied the allegations of malafides. They have refuted the claim of the petitioner about negligence or inaction. They have tried to justify delay in the process of sanction. As there was some dispute regarding the nature of treatment and the immediate need for transplantation, we had called for the record and reports from the authorities. In essence their stand is as follows:

"A meeting was held on 9.8.2000 under he Chairpersonship of Prof A.S.Bais, DDG(M) to discuss and review the report field by Director of Health Services, Govt of NCT in the Court of Hon'ble Chief Justice of Delhi High Court with regard to the proposed renal transplantation of Mr Durgesh son of Shri KL Khurana.

On perusal of the documents submitted by Director Health Services, Govt of NCT Delhi the experts agreed with the contents of the report submitted by him. Further to it is also stated:-

1. Renal Transplantation is not an emergency. A patient of chronic renal failure can be maintained and life can be sustained by regular adequate dialysis support.

2. There is no denial in requisite sanctioning for the renal transplantation in this patient by the concerned medical departments.

Patient came to Sir Ganga Ram Hospital where he was admitted on 20.8.1996 dialysis was started, he was further diagnosed as a case of tubercular pericardia) effusion on 30.8.96 and stated on anti-tubercular treatment.

Dr. D.S. Rana Head of Deptt of Nephrology, Sir Ganga Ram Hospital has given instruction on 30.8.1996 at 5.00 p.m. to withhold any surgical intervention at present (page No.126)

Patient took discharge on request on 2.9.1996 as mentioned in case sheet of Sir Ganga Ram Hospital.

The transplant surgery is undesirable for at least next 6 weeks to three months of starting of the anti-tubercular treatment to make the patient fit for transplant surgery.

Though the patient was granted permission for renal transplantation on 23.9.1996 well within the justified period he would not have undergone transplant at least before 6 weeks from 30.8.1996.

The death of the patient was due to natural course of the disease and could not be attributed due to the delay in receiving permission to undergo transplantation.

 Sd/-                             Sd/                              Sd/
Dr. S.C. Tiwari        Dr Sham Sunder            Dr.N.K.Mohanty
Prof Nephrology          Sr Nephrologist         Urologist
AIIMS                    Dr RML Hospital           Safdarjang Hospital"  

 

8. We are constrained to observe that the Committee did not appreciate the reference, made to it, in its correct perspective. What the Committee was required to look into a whether there was delay on the part of respondent No.4 in processing the application of the petitioner for sanction for renal transplantation in a private hospital, which resulted in death of his son. The committee seems to have examined only the question whether the deceased required immediate renal transplantation or he could wait for sometime. Therefore, the basis question which still lingers in the mind is whether the requisite expedition which was warranted in the case of this nature was observed by respondent No.4 According to him, respondent No.2 Director Health Services received file from the Director of Education on 5.8.1996 for sanction and grant. On the very same day file was marked to respondent No.5 for scrutiny and comments. On 6.8.1996, respondent No.4 received the file marked by respondent NO.2. On 7.8.1996, respondent No.4 examined the request of the petitioner for grant and for obtaining treatment at private hospital. According to him, he even sought for clarification because from Dr S. Miglani who had advised for "urgent rental transplantation". He sought for clarification Dr Miglani had not recorded any medical reason for urgency. He thought it proper to get it confirmed from the Head of the treating unit/Department of LNJP Hospital. He wrote letter to Dr. S.N.Rizvi, Director Professor and Head of Department of Medicine for confirmation of the advise of Dr Miglani. On 26.8.1996 he received letter of Dr Rizvi wherein it was stated that the patient had been coming to the dialysis unit of his department as an out patient for maintenance of dialysis. He also recommended renal transplantation but had also not indicated any reason for urgency. On 4.9.1996 the file was again put up to respondent 4 by his department. He noted his comments and sent the file to respondent No.2 As 7th and 8th September, 1996 were holidays file was sent on 9.9.1996 and on 10.9.1996 approval was granted. According to him there was no negligence involved.

9. There are gaping holes in the stand respondent No.4 If he felt that medical reasons for urgency were not indicated by Dr Sandip Miglani and confirmation by the Head of Department before sanction was required, it has not been explained as to how he recommended grant and sanction after receiving Dr Rizvi's letter which according to respondent No4. also did not disclose any urgency. No explanation has been offered as to how and why the file was pending form 26.8.1996 to 4.9.1996. Learned counsel for respondent No.4 submitted that standard of expedition which may be necessary for dealing with the representations under preventive detention laws should not be applied in the case at hand. There is not substance in the plea. We feel that a case of this nature stands on a better if not equal footing. Here life of a person was involved, whereas in the case of preventive detention it is the liberty of a person. Life and liberty are almost inseparable twins. In other words, what is applicable to liberty cannot be said to be at lower pedestal for life. Even if we accept the Medical Board's view as quoted above, yet here was a case where all the attending doctors have highlighted urgency of the matter and materials on record indicate that respondent No.4 was conscious of the urgency and on the letter received from Dr. Rizvi, had marked "priority". Having himself felt that the matter was to be dealt with on priority basis, yet he had moved at a snail's pace. There is another baffling aspect. Letter of Dr Rizvi is dated 14.8.1996 and respondent No.4 had told the petitioner that he had not received communication from Dr Rizvi. Petitioner had obtained a copy of the letter and handed over to respondent No.4 It is inconceivable that letter dated 14.8.1996 had not reached respondent No.4 for 12 days. There is certainly more than what meets the eye. Copies of documents which have been filed amply prove that the matter was serious and urgent steps were necessary to be taken but that does not seem to have weighed with respondent No.4 with seriousness it deserved.

10. One of the prayers is for grant of compensation. The term compensation as stated in the Oxford Dictionary, signifies that this is given in recompense, an equivalent. 'Damagees' on the other hand constitute the sum of money claimed or adjudged to be paid in compensation for loss or injury sustained, the value estimated in money or something lost or with held. The term compensation etymologically suggests the image of balancing one thing against another, its primary signification is equivalence and the secondary and more common meaning is something given or obtained as an equivalent. Pecuniary damages are to be valued on the basis of full compensation. That concept was first stated by Lord Blackborn in Livingstone v. Rawyards Coal Co, (1860) 5 AC 25.

11. The made of Law requires that the wrongs should not remain unredressed. All the individuals or persons committing wrongs should be liable to an action for damages for beach of civil law or for criminal punishment. Law of torts is founded on the principle that every injury must have a remedy. Compensation means anything given to make things equivalent, a thing given or to make amends for loss, recognise, remuneration or pay, it need not, therefore, necessarily be in terms of money because law may specify principles on which an manner in which a compensation it to be determined as given. Compensation is an act which a Court orders to be done or money which a court orders to be paid, by a person whose acts or omissions have caused loss or injury to another in order that thereby the person damnified may received equal value for his loss, or be whole in respect of his injury, something given or obtained as equivalent; rendering of equivalent in value or amount, an equivalent given for property taken or for an injury done to another, a recompense in value a recompense in value a recompense given for whole injury suffered; remuneration or satisfaction for injury or damages of every description.The expression compensation is not ordinarily used as an equivalent to damage although compensation may often have to be measured by the same rule as damages in an action for a breach. Compensation is a return for a loss or damages sustained. Justice requires that it should be equal in value, although not alike in kind. Amends is return for something that is faulty in ourselves or towards others. Satisfaction is that which satisfies the individual requiring it, is given for personal injuries and may be made either by a return or otherwise, according to disposition of the person to be satisfied. Recompense is a voluntary return for a voluntary service it is made from generous feeling and derives its value not so much from the magnitude or service or return, as form intention of the parties towards each other and it is received not so much as a matter of right as of courtesy. Remiuneration is not voluntary as compense but it is equally indefinite being estimated rather according to condition of the person and dignity of service than its positive worth 'requital' is the return of kindness, the making it is an act of gratitude. In cases of assessment of damages pure mathematics cannot be relied on exclusively to arrive at a reasonable estimate of just compensation for a much pertains to the realms of hypothesis and in that region arithmetic is good servant but a bad master and therefore an award should be of a round sum rather than one actually computed. (Per Lord Rutton J in Ball Kraft 1967 ACJ 235 (Supreme Court of British Columbia, Canada) The following broad principles govern the grant of damages:

1) There should not be any negligence on the part of the claimant himself.

2) There should not be any improper conduct on the part of the claimant himself.

3) The claimant should have taken all reasonable action to contain the loss or injury sustained by him.

4) The acts of the claimant should be lawful just and reasonable.

5) The amount of damages should not exceed the loss sustained by him and such damages may be minimized if own conduct has resulted contributory negligence or has rendered some of the damages too remote or has constituted a failure to mitigate the damages either by not taking such steps to reduce the original loss or to avert further loss.

12. It is true that perfect compensation is hardly possible and money cannot renew a physique frame that has been battered and shattered, as stated by Lord Morris in West (H) and Son v. Shephard, 1964 AC 326, Justice requires that it should be equal in value, although not alike in kind, object or providing compensation is to place claimant as far as possible in the same financially as he was before accident. Broadly speaking, in the case of death basis of compensation is loss of pecuniary benefits to the dependants of the deceased which includes pecuniary loss, expenses etc and loss to the astable. Objects is to mitigate hardship that has been caused to the legal representatives due to sudden demise of the deceased in the accident. Compensation awarded should not be inadequate and should neither be unreasonable, excessive, nor deficient. There can be no exact uniform rule for measuring value of human life and measure of damage cannot be arrived at by precise mathematical calculation but amount recoverable depends on broad facts and circumstances of case. It should neither be punitive against whom claim is decreed nor in should be a source of profit of the person in whose favor it is awarded. Upjohn LJ in Charter House Credit Co v. Tolly (1963) 2 QB 623 remarked that the assessment of damages has never been an exact science, it is essentially practical.

13. It is pleaded by the opposite parties that there was no negligence involved. According to the petitioner, the doctrine of res ipsa loquitar would seem to apply to the facts of the facts of the case. It is explained in a very illustrative passage in Clerk and Lindsell on torts (Sixteenth Edn) page 568-569) which reads as follows:

"Doctrine of res ipsa loquitar. The onus of proof which lies on a party alleging negligence is, as pointed out, that he should establish his case by a preponderance of probabilities. This he will normally have to do by providing that the other party acted carelessly. Such evidence is not always forthcoming. It is possible, however, in certain cases for him to rely on the .mere fact that something happened as fording prima facie evidence of want of due care on the other's parts rest Pisa loquitar' is a principle which helps him to do so. In effect therefore reliance on it is a confession by the plaintiff that he has no affirmative evidence of negligence. The classic statement of the circumstances in which he is able to do is by Brie C.J.:

"There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants that the accident arose from the want of care."

It is more than rule of evidence and states no principle of law."This convenient and succinct formula", says Morris L.J., "Possesses no magic qualities, nor has it any added virtue, other than that of brevity, merely because it is expressed in Latin."It is only a convenient label to apply to a set of circumstances in which a plaintiff proves a case so as to call for a rebuttal from the defendant without having to allege and prove andy specific act or omission on the part of the defendant. It merely proves a result, not any particular act or omission producing he result. The Court hears only the plaintiff's side of the story, and if that makes it more probable than not that the occurrence was caused by the negligence of the defendants, the doctrine res ipsa loquitar is said to apply and the plaintiff will be entitled to succeed unless the defendant by evidence rebuts those probabilities. It is not necessary for res ipsa loquitar to be specifically pleaded."

14. Reference may be made to another passage from the same book at page 723 which reads as follows:

"Liability to children. An occupier must by prepared for children to be less careful than adults. Something which would not be a danger to any adult may very well be one to a child, and a warning sufficient for an adult may be insufficient, for a child. In Moleney v. Lambeth London Borough Council, an occupier was held liable to a four year old boy who fell through the bare of a balustrade. If a person the size of the plaintiff lost his balance he was liable to go through he gap. The staircase did not comply with the occupier's duty of care to a child of the age. But in Ward v. Hortfordshire Co. it was held that there was not liability to a child aged eight who fell against a long standing brick and flint wall in school's play ground. The wall was not inherently dangerous and the presence of a supervisor would not have prevented the accident.,"

15. In the case at hand we are dealing with a problem which centres round the medical ethics and as such it may be appropriate to notice the broad responsibilities of such persons who is in the garb of doing service to the humanity have given way to commercial activities and considerations and have been mercilessly extracting money from helpless patients and their family members and yet do not provide the necessary services. The influence exerted by a doctor is unique. The relationship between the doctor and the patient is not always equally balanced. the attitude of a patient is poised between trust in the learning of another and the general distress of one who is in a state of uncertainty and such ambivalence naturally leads to a sense of inferiority and it is therefore the function of medical ethics to ensure that the superiority of the doctor is not abused in any manner. It is great mistake to think that doctors and hospitals are easy targets for the dissatisfied patients. It is indeed very difficult to raise an action of negligence. Not only there are practical difficulties in linking the injury sustained with the medical treatment or lack of it but also it is still more difficult to establish the standard of care in medical negligence or allied negligence of which a complaint can be made. All these factors together with the sheer expense of bringing a legal action and the denial of legal aid to all but the poorest operate to limit medical litigation in this country. With the emergence of the Consumer Protection Statutes no doubt is some cases patients have been able to establish negligence of the doctors rendering service and in taking compensation therefore but the same is very few is number. In recent days there has been increasing pressure on hospital facilities, falling standard of professional competence and in addition to all the ever increasing complexity of therapeutic and diagnostic methods and all this together make persons responsible for the medical negligence or other allied negligence. That apart there has been a growing awareness in the public mind to bring the negligence of such professional doctors to light. Very often in a clam for compensation arising out a negligence of plea is taken that it is a case of bonafide mistake or error of judgment which under certain circumstances may be excusable. But a mistake which would tantamount to negligence cannot be pardoned. In the former case a court can accept that ordinary human fallibility precludes the liability which in the latter the conduct of the defendant is considered to have gone beyond the bounds of what is expected of the reasonable skill of a competent doctor.In White house v. Jordan and another, [1981] All ER 267, an obstetrician had pulled too hard in a "trial of forceps" delivery and had thereby caused the plaintiff's head to become wedged with consequent asphyxia and brain damage. The trial judge had held the action of the defendant to be negligent but this judgment had been reversed by Lord Denning, in the Court of Appeal, emphasizing that an error of judgment would not tantamount to negligence. When the said matter came before the House of Lords, the views of Lord Denning of the error of judgment was rejected and it was held that an error of judgment could be negligence if it is an error which would not have been made by a reasonably competent professional man acting with ordinary care. Lord Fraser pointed out thus:

"The true position is that an error of judgment may, or may not, be negligent, it depends on the nature of the error. If it is one that would not have been made by a reasonably competent professional man professing to have the standard and type of skill that the defendant holds himself out as having and acting with ordinary care, then it is negligence. If on the other hand it is an error that such a man acting with ordinary care might have made, then it is not negligence."

These aspects were highlighted in Spring Meadows Hospital vs. Harjol Ahluwalia 1998 (2) SCALE, 456.

16. Case of the petitioner is based on the general law of torts. The case is also based upon the law of tort of Negligence. In view of this position we may have to bear in mind certain salient features or aspects regarding the general law of torts and especially the tort of negligence. By now it is clear that the filed of law of torts speaks of the recognition of certain civil rights which are available to a victim or the heirs and legal representatives of the victim to claim stipulated amount as damages from the wrongdoer for the negligence. When we talk of negligence, the wrongdoer may be made liable because of a wrongful act or an omission of do something which the wrongdoer was required to do but not done. The plaintiff who sues the wrongdoer in tort is required to prove and establish the negligence on the part of the wrongdoer and the resultant loss. In such cases the plaintiff would also be required to establish a reasonable proximate connection between the damages suffered and the wrong done. We are living in a complex world and therefore we have to notice that initially at the inception the concept of actionable tort was lying in a narrow compass. By the passage of time and by the increase of eventualities this narrow compass came to be widened, new concepts have been brought in and the domain of law of torts is being extended daily.In a changed world, new duties, new liabilities and new responsibilities are being fastened on individuals, groups of persons, local authorities and body corporates. These liabilities are also being fastened on the broad shoulders of the State and certain institutions, which could be said to be the instrumentalities of the State. The direct result of this process is that the area or the filed of the law of torts goes on increasing day by day. As notice above, in the present complex society the area or the filed of the law of torts is being extended day by day and the courts should not be shy to include any other branch of negligence in the arena of the law of torts.

17. In Halsbury's Laws of England, 4th Edition Vol. 45 at para 1201-1203, at pages 558 and 559, the above said concept has been recognised in this classic work also. It is said very specifically that from time to time in the past, the common law has recognised new duties and new liabilities of the common law with the capacity to do so in future in other such cases also.

In a series of the English Courts have accepted the principle that the statutory duties should be accepted as absolute duties. It is also an accepted proposition of law that in case of absolute duties the plaintiff will be called upon to prove a breach of the duty but it would not be for the plaintiff to show how the failure to comply with the duty had arisen. It is not a must for the plaintiff in respect of a case arising from the breach of an absolute duty to show that the defendant was guilty of any failure to take reasonable care or to comply with a standard of reasonable care. But we think it proper to make it clear, as stated above, that in case of absolute duty, what is generally known as the proof would be curtailed so far as the plaintiff in such cases is concerned. This distinction between the qualified duties and absolute duties has been made possible on the basis that in a complex society, as it stands today, there would be certain absolute duties cast upon certain institutions, the State and citizens as well. It would not be possible for the dependants of a victim to pinpoint exactly as to at what juncture the enormous machinery of the defendant or the functionary had failed to take necessary care and caution. If it is expected of the heirs and legal representatives of a victim to establish the point where the machinery had failed, it would not only be extremely difficult but rather impossible. There has to be distinction,so far as defendants are concerned between absolute and qualified duties. Let us see what Halsbury has to say in this respect. The reference requires to be made again to the same classic work of Halsbury's laws of England, 4th Edn Vol 45, para 1288, page 593, Halsbury says thus:

"The duty imposed by a statute is in many cases absolute. That is to day, all that is necessary to prove a breach of the duty is to show that the requirements of the statute have not in fact been complied with, and it is not necessary for the plaintiff in a action for breach of duty to show how the failure to comply arose or that the defendant was guilty of any failure to take reasonable care to comply; nor is it normally a defense for the defendant to show that he took all reasonable precautions to secure compliance."

In the same para Halsbury again says, thus:

"In particular, it has been held in a number of cases relating to the statutory duty of local authorities to maintain works that this duty is not absolute. On the other hand, duties to take safety precautions imposed by the factories legislation, the legislation relating to mines and quarries and similar protective statutes and statutory instruments made under them have been held in many instances to be absolute."

18. Therefore, looking to the above said opinion expressed by Halsbury, which is again based upon the English case law, it becomes clear that one shall have to make a distinction between absolute duties and duties which can be said to be qualified duties. Moreover, the English courts have taken the view that the duties to take safety precautions imposed under certain legislation have been held in many instances to be the absolute duties.

19. The plaintiff ordinarily shall have to establish that aspect of the case also which is ordinarily known as causation. The action may be either in negligence or in nuisance but only such damages would be recoverable that are reasonably foreseeable consequences of the tortuous act. But again the burden of providing the damages would be discharged on a balance of probabilities. If the plaintiff proves that the tortuous act caused or contributed materially to the injury or the damage done the causation is established. Therefore, this principle of causation would not be of much dispute so far as the present is concerned. We have preferred to make a passing reference tot he same with a view to make the picture clear.

20. That is all what one can say in nutshell regarding the general law of torts. Coming to the principles of the law of Negligence, it can be said that what amounts to negligence would depend upon the facts of each case. Ordinarily , it is being stated often that the negligence would consist in omitting to do something which ought to be done or in doing something which is required to be done either in a different manner or not at all. When there is no duty to exercise then the negligence has not legal consequence. It is also true that wherever there is a duty to exercise, reasonable care must be taken to avoid risk or damage which could have been reasonable care must be taken to avoid risk or damage which could have been reasonably foreseen. Duty of care is owed only to those persons who are in the area of a foreseeable danger. An act of negligence may also constitute a nuisance, but here, as we are not concerned regarding the case of nuisance, it is not required of us to go in detail regarding the case for damages in nuisance. Suffice it to say that the term negligence has been taken up as that which ought to have done and has not been done or in omitting to do something which ought to have been done in a different manner or not at all.

21. Charlesworth on Negligence, 6th Edition (The Common Law Library No.6) also throws some light on this subject. According to the renowned author,in current, forensic speech negligence has got three meanings. They are (1) a state of mind, which is opposed to intention,(2) careless conduct, and (3) the breach of a duty to take care imposed by common or statute law. We are concerned with second and third meanings and therefore the reference shall have to be concentrated on these meanings alone. the second and third meaning of negligence are used in an objective sense and in reference careless conduct and to a breach of duty to take care imposed by common or statute law. There is nothing as negligence in abstract, but the idea of negligence and duty are strictly correlative.

22. So far as the essentials of actionable negligence are concerned, Charlesworth has preferred to put the same at para 20 at page 11, thus:

"Accordingly the essential ingredients of actionable negligence are:

(1) the existence of a duty to take care owing to the complaint by the defendant;

(2) failure to attain that standard of care prescribed by the law; thus committing a breach of the duty to take care; and

(3) damage suffered by the complainant, which is causally connected with the breach of duty to take care."

Therefore, it is clear that in the claim for damages arising from the actionable negligence the plaintiff shall have to establish that there was the existence of duty to take care and there was a failure to adopt the standard of care prescribed by law, thus committing a breach of duty to take care and the damage suffered by the plaintiff which must again be connected with the breach of duty to take care. But it is again also very clear that to determine whether an act is negligent or not it is relevant to determine whether any reasonable person would foresee that the act would cause damage. Therefore while examining this case also we would be required to consider the important question as to whether by adopting any standard of care respondent No.4 could have foreseen the damage, which was ultimately caused to the victim. We have stated that negligence occurs when there is an omission to do something which a man of ordinary prudence would reasonably do. It also occurs when something is done which a prudent and reasonable man would not do. This proposition has been placed in almost simple language while defining negligence in Alderson B's classic words:

"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."

We have noticed that the link of causation in such cases shall have to be established. But again the question would be as to whether there was a reasonable foreseeability. This principle regarding the reasonable foreseeability has been made explicit by Charlesworth in above said work at paras 317,318 ad 319 on pages 207,208 and 209 by making a reference to three cases, namely, Re Polemis, the Wagopn Mound (No.1) It is not necessary for us to go into details of the above said case law. It is made clear that the defendants would ordinarily not be made liable unless there was a reasonable foreseeability. According to us, the case-law would also to show that the defendant would be liable if the plaintiffs were able to establish reasonable foreseeability. The absence of foreseeability would be a good defense on the part of the defendant in such cases. We lay stresses on this principle of reasonable foreseeability because at this juncture we feel that the very question would crop up at a later junction with a view to ascertain as to whether the defendant corporation can be said to be negligent in discharge of its duties cast upon it by the relevant statute.

23. What baffles us is it error of judgment? Was respondent No.4 acting with due care and caution or was the act actuated with motives? Even if we go for hair-splitting it is apparent that respondent No.4 has not acted with a spirit of dedication which a person belonging to the noble medical profession was expected to do in the circumstances. Explanations offered by him are to shallow to be accepted as convincing. We express our displeasure over the manner in which respondent No.4 has acted. Even if for the sake of argument, it is accepted that there was error of judgment and not willful negligence, there can be doubt that he has acted in an irresponsible manner, for which he deserves to be reprimanded. It shall be open to the departmental authorities to take such actions as are warranted and called for departmentally against him in view of our observations made and conclusions arrived at above.

24. In view of what we have said above, we feel that not further directions are necessary in the matter and we dispose of the writ petition with the aforesaid observations.