Personal Injury & Law of Negligence in Pakistan
The fact that mishaps are fairly commonplace does not detract from the pain and confusion that can result when an accident or injury happens to you or a loved one. If you decide to take steps toward protecting your legal rights after an accident or injury, you may have a number of general questions about "personal injury" cases. Personal injury law refers to the legal remedies and defenses involved in civil lawsuits brought as a result of wrongful conduct. In fact, the word "tort" comes from a Latin term meaning twist, wrong, or harm. In contrast to criminal law, a tort action does not involve the government prosecuting the wrongdoer. Rather, these cases involve a private plaintiff seeking compensation (usually money) for the harm caused by the defendant's actions.
Most personal injury cases are based on the doctrine of negligence. In essence, negligence requires every member of society to act responsibly and avoid putting others at risk. That is not to say that negligence will result each time someone gets hurt. The doctrine recognizes that some accidents are unavoidable. To establish liability, the plaintiff must show that a reasonably prudent person in the defendant's position would have acted differently under the circumstances.
Common Intro and Historical Progress
The annual increase in the number of accidental injuries to life, limb and property as a result of the impact of modern civilisation, has become a major problem for exploration and study by lawyers, judges, politicians, economists and social workers all over the world. During World War II there were more casualties among human beings from accidents on the home front, than there were deaths and wounds inflicted on the battlefields. According to the estimates in USA alone, the number of infantry units killed was 313,000 but 386,082 civilians were killed in accidents during the same period. Although statistics on similar lines aren't available in our own country.
It'll be observed that death and personal injury involve economic loss through loss of wages, loss of support, and payment of funeral and medical expenses. If the injury is permanent or fatal the economic loss is very severe; it may fall not only on the injured person and his family, but on his hospital, physician, tradesman, landlords, friends and the community at large. As most persons are members of a family group, the economic shock of an accident falls on the family which carries the injured person along as best as it can. If the injured person is sole bread-earner, the entire family group may face a severe crisis.
Accidental Claims and Scarcity in Pakistan
Despite this high toll of accidents and the resulting loss to individuals and society, it isn't a matter for gratification to figure out that very few claims for compensation or damages are made and tried in our domestic courts. In our own law research, both official and non-official cases on Torts, more so on negligence, are few and far between. Negligence as a basis of liability for death or personal injuries has scarcely arisen for discussion before our Courts, except perhaps where negligence was alleged against Pakistan Railways in transportation of goods.
There are several reasons for lack of this class of litigation. In the first place, the public in Pakistan are generally unaware of their civil rights in the matters of making claims for compensation in respect of personal injuries, and victims of accidents through ignorance of their rights fail to prefer claims. It is true that potential claims are settled out of court for small sums, but even such instances are rare. Another deterrent factor is the heavy court-fees which a litigant has to pay on money claims in our courts. Yet another factor is the lack of liberal outlook on the part of our average mofussil Judge in awarding compensation in personal injury actions. The logical consequence of the inability or failure to get liberal compensation in such cases, is a great loss to the community. However, cases on medical malpractice are now on rise in Pakistan.
Foundation of Tortious Liability
There has been an age-long conflict of theories of tortious liability, centring round two basic, but opposing interests of individuals, viz., the interest of freedom of action. The first required that every person who causes injury to another must compensate that other regardless of his motives or intentions. That second required that the person causing injury should be called upon only if his action was intentionally wrongful, or was the result of an undue lack of consideration for the interests of others. The former is content with imposing liability for faultless causation, while the latter insists upon fault or culpability as a prerequisite for legal responsibility. But it'll not be surprising to see that between these theories, a midway, a compromise has been found. "For somewhere the line must be drawn unless full rein be given to the doctrine that a man always acts at his peril that 'coarse and impolitic idea'".
Historical Antecedents of Negligence
In the field of accidental injuries, the legal right to receive compensation or damages today is however generally said to depend on "negligence". Yet as an independent basis of tort liability, it is a very recent creation.
It isn't therefore surprising to find that, neither the first book on common law attributed to Glanvill, Chief Justice to Henry II, nor the second great book on the same subject by Bracton written about the middle of the thirteenth century, contains any reference to negligence as a basis of liability. There was not even the title of "Negligence" in the year-books or any digest of English Law before Comyns (1762-67).
Even Addison who wrote on the more modern Law of Torts in 1860, hardly devoted any space to the subject of Negligence, except where he treated it as a mental element in tortious liability. It was only in the second quarter of the twentieth century that the concept for negligence became crystallised.
What is Negligence?
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 won't do.
Negligence has been defined by Winfield as "the breach of a legal duty to take care which results in damage undesired by the defendant to the plaintiff". It contains three ingredients:
A legal duty to take care;
Breach of that duty; and
Consequential damage to the plaintiff.
Lord Atkin in Donoghue v. Stevenson, put it thus:
"You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then, in law, is my neighbour? The answer seems to be persons who're closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I'm directing my mind to the acts or omissions which are called in question."
Lord Reid said that Lord Atkin's dictum ought to apply unless there was some justification or valid explanation for its exclusion.
Foreseeability and Proximity
'Foreseeability' means whether a hypothetical 'reasonable person' would have foreseen damage in the circumstances.
'Proximity' is shorthand for Lord Atkin's neighbour principle. It means that there must be legal proximity, i.e. a legal relationship between the parties from which the law will attribute a duty of care.
Note that a duty of care may not be owed to a particular claimant, if the claimant was unforeseeable.
Negligence as a State of Mind or Unreasonable Conduct
Theorists have differed as to whether negligence is a mental attitude or conduct. According to the mental theory negligence is merely a state of mind involving indifference or inadvertence: "a form of mens rea standing side by side with wrongful intention as a formal ground of responsibility" for certain nominated torts. Those who maintain the former theory do not admit that negligence may itself be a specific tort. Those who propound the latter theory say that negligence is conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm and this is generally the accepted view. This conflict is referred to as one between objective and subjective negligence.
Tort of Negligence
The theory that negligence is conduct and not a state of mind has resulted in the development of the conception that negligence is a specific tort, and not a mere element in the commission of other torts. For a long time, the idea that negligence is itself a tort was never expressed in so many words, but there was a sub-conscious realisation of it. It took more than a century for English Law to arrive at the present stage of development. In Donoghue v. Stevenson, the House of Lords treats negligence as, "where there is a duty to take care, as a specific tort in itself, and not simply as an element in some complex relationship or in some specified breach of duty".
Negligence in Law and in Common Parlance
In law 'negligence' means failure in a duty to take care.
Lord Wright in Lochegelly Iron and Coal Co. v Mullan, put it as follows:
"In strict legal analysis 'negligence' means more than needles or careless conduct, whether in omission or commission; it properly connotes the complex concept of duty, breach, and damages thereby suffered by the person to whom the duty was owing."
The term "negligence" has been frequently defined by courts and text-writers in various terms, such as carelessness, want or absence of care, failure to exercise such care and skill as the circumstances require, want of diligence and care reasonably required under all the circumstances, failure to use ordinary precaution, failure of duty to take care, omission or disregard of a legal duty, and in many other cognate terms.
Benchmarks for Establishing Negligence
The standards for establishing negligence are:
The standard to determine whether a person has been guilty of negligence in the standard of care which in the given circumstances, a reasonable man could have foreseen;
The test is foreseeability, not probability;
The more serious the consequences if case isn't taken, the greater is the degree of care which must be exercised;
While the initial burden of proof of negligence is on the claimant, barring exceptional cases the principle of res ipsa loquitur comes into play;
Having regard to the local conditions prevailing in the country, when res ipsa loquitur is attracted, it should be given as wide an amplitude and as long a rope as possible in its application to the case of a motor accident;
The defendant can't escape liability by merely proffering hypothetical explanations, however plausible, of the accident.
Basic Problem in Negligence Law
Negligence is a matter of "risk". This involves the two questions "Risk of what?" and "Risk to whom?". In other words, the endeavour is to determine the nature of the risk and the scope of the risk. For this purpose, Courts in England have evolved a number of artificial technics like "duty of care" and "remoteness of damage" which are concerned with the basic problem of what harms are included within the scope of the unreasonable risk created by the defendant, and what interest the law deems worthy of protection against negligent interference in consonance with current notions of policy in that country.
Elements as to Cause of Action for Negligence
From the present state of law, the essential elements constituting actionable negligence may be summarised as follows:
A duty recognised by law requiring conformity to a certain standard of conduct for the protection of others against unreasonable risk of harm.
This is commonly known as the "duty issue".
Failure to conform to the required standard of care, or briefly, breach of that duty.
This element usually passes under the head of "negligence".
Actual loss or injury to the interests of the plaintiff.
This is otherwise stating that "damage is the gist of the action for negligence".
A reasonably proximate connection between the defendant's conduct and the resulting injury.
This is the question relating to the principle of "remoteness of damage" or "proximate cause"; and
The absence of any conduct by injured party disabling him from bringing an action for the loss he has sustained.
This involves consideration of two specific defences to the action, viz. (1) voluntary assumption of the risk and (2) contributory negligence, which are properly within the question of "remoteness of damage" or "proximate cause" and falling within the scope of the third element as mentioned above.
The law of negligence in Pakistan is based largely on English law, although there are areas in which the Pakistani courts have chosen to depart from the principles espoused by the UK courts. While the law referred here will, wherever possible, be that applied by the courts in Pakistan (and occasionally India), reference will also be made to the jurisprudence of other jurisdictions - notably the UK, Australia and USA - which have influenced, or are influencing, the development of the law of negligence in Pakistan.
Establishing the due standard of care: whether reasonable care has been taken to avoid reasonably foreseeable harm
The basic question in every case is whether reasonable care has been taken to avoid reasonably foreseeable harm. Factors which are relevant in this determination include:
the likelihood or probability of the risk eventuating;
the seriousness or gravity of the foreseeable risk;
the practicability of avoiding or minimising the risk;
the justifiability of taking the risk;
the time for assessing the risk;
the relevant characteristics of the foreseeable plaintiff
The test used is that of the reasonable person in the circumstances. It is an objective test, under which a defendant is judged not by his own characteristics and attributes but by the nature of the task he is performing and the circumstances in which he is performing it. For a clear illustration of the balancing of factors - including the magnitude of the risk inherent in an activity, the social utility of that activity, the seriousness of the harm should the risk eventuate, and the cost of taking precautions against the risk, see National Logistic Cell (NLC) vs Irfan Khan (2015 SCMR 1406 SC).
In his decision in Bolam McNair J. laid down a specific test for determining the standard of care applicable to the medical profession. Under this test, a doctor "is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art."
The Bolam test forms the basis for assessing medical negligence in Pakistan and in the UK, although in the latter its application is now confined to negligent treatment and diagnosis. Even though the question of whether or not a doctor has been negligent is ultimately for the court to decide (Bolitho v City and Hackney Health Authority  AC 232), the significance which the courts place on the opinions of fellow doctors when determining the issue of negligence tends - particularly in Pakistan - to make it more difficult for claimants to succeed in medical actions than might be the case in actions against other professions. See Dr Professor M.A. Cheema, Surgeon, PIC, Lahore vs Tariq Zia (2016 SCMR 119 SC).
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