What constitutes Negligence

Supreme Court of India
Sushil Ansal vs State Thr.Cbi on 5 March, 2014
Author: .....J.
Bench: T.S. Thakur, Gyan Sudha Misra
 REPORTABLE
 IN THE SUPREME COURT OF INDIA
 CRIMINAL APPELLATE JURISDICITION
 CRIMINAL APPEAL NO.597 OF 2010
Sushil Ansal Appellant
 Versus
State Through CBI Respondent
(With Crl. Appeals No.598/2010, 599/2010, 600-602/2010, 604/2010, 605-
616/2010 and 617-627/2010)
iii) What constitutes Negligence?:
50. The expression negligence has also not been defined in the Penal Code, but, that has not
deterred the Courts from giving what has been widely acknowledged as a reasonably acceptable
meaning to the term. We may before referring to the judicial pronouncements on the subject refer to
the dictionary meaning of the term negligence.
51. Blacks Law Dictionary defines negligence as under:
The failure to exercise the standard of care that a reasonably prudent person would
have exercised in a similar situation; any conduct that falls below the legal standard
established to protect others against unreasonable risk of harm, except for conduct
that is intentionally, wantonly, or willfully disregardful of others rights.
52. Charlesworth and Percy on Negligence (Twelfth Edition) gives three meanings to negligence in
forensic speech viz: (i) in referring to a state of mind, when it is distinguished in particular from
intention; (ii) in describing conduct of a careless type; and (iii) as the breach of a duty to take care
imposed by either common law or statute. The three meanings are then explained thus:
The first meaning: Negligence as a state of mind can be contrasted with intention.
An act is intentional when it is purposeful and done with the desire or object of
producing a particular result. In contrast, negligence in the present sense arises
where someone either fails to consider a risk of particular action, or having
considered it, fails to give the risk appropriate weight.
The second meaning: Negligence can also be used as a way to characterize conduct,
although such a use may lead to imprecision when considering negligence as a tort.
Careless conduct does not necessarily give rise to breach of a duty of care, the
defining characteristic of the tort of negligence. The extent of a duty of care and the
standard of care required in performance of that duty are both relevant in
considering whether, on any given facts conduct which can be characterized as
careless, is actionable in law.
The third meaning: The third meaning of negligence, and the one with which this
volume is principally concerned, is conduct which, objectively considered, amounts
to breach of a duty to take care.
Sushil Ansal vs State Thr.Cbi on 5 March, 2014
Indian Kanoon - http://indiankanoon.org/doc/9513811/ 29
53. Clerk & Lindsell on Torts (Eighteenth Edition) sets out the following four separate requirements
of the tort of negligence:
(1) the existence in law of a duty of care situation, i.e. one in which the law attaches
liability to carelessness. There has to be recognition by law that the careless infliction
of the kind of damages in suit on the class of person to which the claimant belongs by
the class of person to which the defendant belongs is actionable;
(2) breach of the duty of care by the defendant, i.e., that it failed to measure up to the
standard set by law;
(3) a casual connection between the defendant's careless conduct and the damage;
(4) that the particular kind of damage to the particular claimant is not so
unforeseeable as to be too remote.
54. Law of Torts by Rattanlal & Dhirajlal, explains negligence in the following words:
Negligence is the breach of a duty caused by the omission to do something which a
reasonable man, guided by those considerations which ordinarily regulate the
conduct of human affairs would do, or doing something which a prudent and
reasonable man would not do. 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. According to Winfield, negligence as a tort is the breach of a
legal duty to take care which results in damage, undesired by the defendant to the
plaintiff. The definition involves three constituents of negligence: (1) A legal duty to
exercise due care on the part of the party complained of towards the party
complaining the formers conduct within the scope of the duty; (2) Breach of the said
duty; and (3) consequential damage. Cause of action for negligence arises only when
damage occurs for damage is a necessary ingredient of this tort. But as damage may
occur before it is discovered; it is the occurrence of damage which is the starting
point of the cause of action.
55. The above was approved by this Court in Jacob Mathew v. State of Punjab and Another (2005) 6
SCC 1.
56. The duty to care in cases whether civil or criminal including injury arising out of use of buildings
is examined by courts, vis--vis occupiers of such bindings. In Palsgraf v. Long Island Railroad, 248
NY 339, Justice Cardozo explained the orbit of the duty of care of an occupier as under:
If no hazard was apparent to the eye of ordinary vigilance, an act innocent and
harmless, at least to outward seeming with reference to her, did not take to itself the
quality of a tort because it happened to be a wrong, though apparently not one
Sushil Ansal vs State Thr.Cbi on 5 March, 2014
Indian Kanoon - http://indiankanoon.org/doc/9513811/ 30
involving the risk of bodily insecurity, with reference to someone else...Even then, the
orbit of the danger as disclosed to the eye of reasonable vigilance would be the orbit
of the duty.
57. To the same effect is the decision in Hartwell v. Grayson Rollo and Clover Docks Limited and
Others (1947) KB 901 where the duty of an occupier who invites people to a premises, to take
reasonable care that the place does not contain any danger or to inform those coming to the
premises of the hidden dangers, if any, was explained thus:
In my opinion the true view is that when a person invites another to a place where
they both have business, the invitation creates a duty on the part of the invitor to take
reasonable care that the place does not contain or to give warning of hidden dangers,
no matter whether the place belongs to the invitor or is in his exclusive occupation.
58. The duty of a theatre owner to his patrons was outlined as follows in Rosston v. Sullivan, 278
Mass 31 (1932):
The general duty to use ordinary care and diligence to put and keep this theatre in a
reasonably safe condition, having regard to the construction of the place, character of
the entertainment given and the customary conduct of persons attending.
59. The above case was cited with approval in Helen Upham v. Chateau De Ville Theatre Inc 380
Mass 350 (1980).
60. The Supreme Court of Wyoming in Mostert v. CBL & Associates, et. Al., 741 P.2d 1090 (Wyo.
1987) held that the owner of a theatre, AMC owed an affirmative duty to patrons as business visitor
invitees to inform them of off-premises dangers (in that case a flash flood) which were reasonably
foreseeable:
We conclude that appellee AMC owed the Mostert family an affirmative duty to
exercise reasonable or ordinary care for their safety which includes an obligation to
advise them of off- premises danger that might reasonably be foreseeable. We are not
suggesting by our determination that AMC had a duty to restrain its patrons or even a
duty to advise them what to do. The duty as we see it is only to reveal what AMC
knew to its customers.
61. In Brown v. B & F Theatres Ltd., (1947) S.C.R. 486, the Supreme Court of Canada held the
liability of a theatre owner to be 90% and the contributory negligence of the appellant to be 10% in a
case with the following facts:
The appellant, Margaret Brown, was injured by falling down a stairway in a theatre
in Toronto. After passing through a brightly lighted lobby, she entered the foyer,
intending to go to the ladies room. This was on the left of the entrance and was
indicated by a short electric sign 7 high facing her as she turned. In the foyer, a
Sushil Ansal vs State Thr.Cbi on 5 March, 2014
Indian Kanoon - http://indiankanoon.org/doc/9513811/ 31
narrow corridor, the lights were dimmed; and, proceeding along the wall at her left,
she opened what she took to be the door to the waiting room. A fire extinguisher 2
long and 4 from the floor hung on the wall next to the left side of the door; and at the
right side was a post or panel 7 wide, projecting about 4 out from the wall; the door,
31 wide, swinging toward the left, on which the word Private was printed in faint
letters, was between three and four feet in front of the sign and led to a stairway into
the basement. The platform or landing was about 24 deep and the door must have
swung somewhat before the edge would be brought into view. Immediately inside on
the wall at the right and on a level with her eyes, was a light which, on her story,
momentarily blinded her. The entrance to the ladies room was separated from this
door by the post or panel.
62. Holding that the theatre owner had breached the duty owed by a proprietor of premises to his
invitee, the Court held as follows:
Here, Mrs. Brown paid a consideration for the privileges of the theatre, including
that of making use of the ladies room. There was a contractual relation between her
and the theatre management that exercising prudence herself she might enjoy those
privileges without risk of danger so far as reasonable care could make the premises
safe. (emphasis supplied)
63. In Dabwali Fire Tragedy Victims Association v. Union of India and Ors., (2001) 1 ILR Punjab &
Haryana 368 to which one of us (Thakur J.) was a party, the High Court of Punjab & Haryana held
that both the school, as well as the owners of a premises on which the school function was held, were
liable as occupiers for the tragic death of 406 persons, most of them children, caused by a fire which
broke out on the premises during the function. In dealing with the question whether the owners of
the premises, Rajiv Marriage Palace, being agents of the school could be held accountable, the High
Court held as follows:
..The School ought to have known that in a function which is open to general public,
a Pandal with a capacity of 500 to 600 persons spread over no more than an area
measuring 100 x 70, a gathering of 1200 to 1500 persons could result in a stampede
and expose to harm everyone participating in the function especially the children
who were otherwise incapable of taking care of their safety. The school ought to have
known that the availability of only one exit gate from the Marriage Palace and one
from the Pandal would prove insufficient in the event ofany untoward incident taking
place in the course of function. The School ought to have taken care to restrict the
number of invitees to what could be reasonably accommodated instead of allowing all
and sundry to attend and in the process increase the chances of a stampede. The
School ought to have seen that sufficient circulation space in and around the seating
area was provided so that the people could quickly move out of the place in case the
need so arose. Suffice it to say that a reasonably prudent School Management
organizing an annual function could and indeed was duty bound to take care and
ensure that no harm came to anyone who attended the function whether as an invitee
Sushil Ansal vs State Thr.Cbi on 5 March, 2014
Indian Kanoon - http://indiankanoon.org/doc/9513811/ 32
or otherwise, by taking appropriate steps to provide for safety measures like fire
fighting arrangements, exit points, space for circulation, crowd control and the like.
And that obligation remained unmitigated regardless whether the function was held
within the School premises or at another place chosen by the Management of the
School, because the children continued to be under the care of the School and so did
the obligation of the School to prevent any harm coming to them. The principle of
proximity creating an obligation for the School qua its students and invitees to the
function would make the School liable for any negligence in either the choice of the
venue of the function or the degree of care that ought to have been taken to prevent
any harm coming to those who had come to watch and/or participate in the event.
Even the test of foreseeability of the harm must be held to have been satisfied from
the point of view of an ordinary and reasonably prudent person. That is because a
reasonably prudent person could foresee danger to those attending a function in a
place big enough to accommodate only 500 to 600 people but stretched beyond its
capacity to accommodate double that number. It could also be foreseen that there
was hardly any space for circulation within the Pandal. In the event of any mishap, a
stampede was inevitable in which women and children who were attending in large
number would be worst sufferers as indeed they turned out to be. Loose electric
connections, crude lighting arrangements and an electric load heavier than what the
entire system was geared to take was a recipe for a human tragedy to occur. Absence
of any fire extinguishing arrangements within the Pandal and a single exit from the
Pandal hardly enough for the people to run out in the event of fire could have put any
prudent person handling such an event to serious thought about the safety of those
attending the functioning especially the small children who had been brought to the
venue in large numbers
64. Referring to the English decisions in Wheat v. E. Lacon & Co. (1966) 1 All ER 582, Hartwell v.
Grayson Rollo (supra), Thomson v. Cremin (1953) 2 All ER 1185 and H & N Emanuel Ltd. v. Greater
London Council & Anr. (1971) 2 All ER 835, the High Court went on to hold as follows:
93. In the instant case while the School had the absolute right to restrict the entry to
the venue of the function being organized by it and everything that would make the
function go as per its requirements, the owners had not completely given up their
control over the premises, and were indeed present at the time the incident occurred.
The facts and circumstances brought on record in the course of the enquiry establish
that the School and the Marriage Palace owners were both occupying the premises
and were, therefore, under an obligation to take care for the safety of not only the
students, but everyone who entered the premises on their invitation or with their
permission specific or implied. As to the obligation of an occupier to take care qua his
invitees a long line of English decisions have settled the legal position...
xx xx xx
Sushil Ansal vs State Thr.Cbi on 5 March, 2014
Indian Kanoon - http://indiankanoon.org/doc/9513811/ 33
97. In the light of the above, we have no hesitation in holding that the One Man
Commission of Inquiry was perfectly justified in holding the School and the Marriage
Palace liable for the act of tort arising out of their negligence and duty to take care
about the safety of all those invited to the function at Dabwali. Question No. 2 is
answered accordingly.
65. In R. v. Gurphal Singh [1999] CrimLR 582, the Court of Appeal in England dealt with a case
where a person staying at a lodging house occupied and managed by the Singh family died in his
sleep due to carbon monoxide poisoning. The cause of the carbon monoxide was the blocking of the
chimney in the room of the lodger, as well as in the neighbouring room due to which the smoke from
a fire in the room could not escape. While determining whether the Singh family had breached their
duty of care, the Court held as follows:
...In substance this is a case where those living in the room in which Mr. Foster died
in a lodging house managed by Singh family. They were led to believe that the
appellant and his father would take care that they were not poisoned by equipments
provided by the family. The appellant was possessed of sufficient information to
make him aware of a danger of death from gas. He may not have had sufficient skill
to be able to discover how that danger arose but he was responsible for taking
reasonable steps to deal with that danger if need by calling in expert help. In those
circumstances the judge was right to hold that there was a sufficient proximity
between the lodgers on the one side and the father and son on the other side to place
a duty of care on the latter.
66. To sum up, negligence signifies the breach of a duty to do something which a reasonably prudent
man would under the circumstances have done or doing something which when judged from
reasonably prudent standards should not have been done. The essence of negligence whether arising
from an act of commission or omission lies in neglect of care towards a person to whom the
defendant or the accused as the case may be owes a duty of care to prevent damage or injury to the
property or the person of the victim. The existence of a duty to care is thus the first and most
fundamental of ingredients in any civil or criminal action brought on the basis of negligence, breach
of such duty and consequences flowing from the same being the other two. It follows that in any
forensic exercise aimed at finding out whether there was any negligence on the part of the
defendant/accused, the Courts will have to address the above three aspects to find a correct answer
to the charge.
(iv) Difference between negligence in civil actions and in criminal cases:
67. Conceptually the basis for negligence in civil law is different from that in criminal law, only in
the degree of negligence required to be proved in a criminal action than what is required to be
proved by the plaintiff in a civil action for recovery of damages. For an act of negligence to be
culpable in criminal law, the degree of such negligence must be higher than what is sufficient to
prove a case of negligence in a civil action. Judicial pronouncements have repeatedly declared that
in order to constitute an offence, negligence must be gross in nature. That proposition was argued
Sushil Ansal vs State Thr.Cbi on 5 March, 2014
Indian Kanoon - http://indiankanoon.org/doc/9513811/ 34
by Mr. Ram Jethmalani at great length relying upon English decisions apart from those from this
Court and the High Courts in the country. In fairness to Mr. Salve, counsel appearing for the CBI
and Mr. Tulsi appearing for the Association of Victims, we must mention that the legal proposition
propounded by Mr. Jethmalani was not disputed and in our opinion rightly so. That negligence can
constitute an offence punishable under Section 304A of the IPC only if the same is proved to be
gross, no matter the word gross has not been used by the Parliament in that provision is the
settled legal position. It is, therefore, unnecessary for us to trace the development of law on the
subject, except making a brief reference to a few notable decisions which were referred to at the bar.
68. One of the earliest decisions which examined the question of criminal negligence in England was
R. v. Bateman (1925) 94 L.J.K.B. 791 where a doctor was prosecuted for negligence resulting in the
death of his patient. Lord Hewart L.C.J. summed up the test to be applied in such cases in the
following words:
A doctor is not criminally responsible for a patient's death unless his negligence or
incompetence passed beyond a mere matter of compensation and showed such
disregard for life and safety as to amount to a crime against the State.
69. Nearly two decades later the Privy Council in John Oni Akerele v. The King AIR 1943 PC 72
found itself confronted by a similar question arising out of the alleged medical negligence by a
doctor who was treating patients for an endemic disease known as Yaws which attacks both adults
and children causing lesions on the body of the patient. Following the treatment, 10 children whom
the accused had treated died allegedly because the injection given to the patients was too strong
resulting in an exceptional reaction among the victims. The allegation against the doctor was that he
had negligently prepared too strong a mixture and thereby was guilty of manslaughter on account of
criminal negligence. Relying upon Lord Hewarts L.C.J. observations extracted above, the Privy
Council held:
11. Both statements are true and perhaps cannot safely be made more definite, but it
must be remembered that the degree of negligence required is that it should be gross,
and that neither a jury nor a Court can transform negligence of a lesser degree into
gross negligence merely by giving it that appellation. The further words spoken by the
Lord Chief Justice in the same case are, in their Lordships' opinion, at least as
important as those which have been set out:
It is desirable that, as far as possible, the explanation of criminal negligence to a jury
should not be a mere question of epithets. It is, in a sense, a question of degree, and it
is for the jury to draw the line, but there is a difference in kind between the
negligence which gives a right to compensation and the negligence which is a crime.
70. What is important is that the Privy Council clearly recognized the difficulty besetting any
attempt to define culpable or criminal negligence and held that it was not possible to make the
distinction between actionable and criminal negligence intelligible, except by means of illustrations
drawn from actual judicial opinions. On the facts of that case the Privy Council accepted the view
Sushil Ansal vs State Thr.Cbi on 5 March, 2014
Indian Kanoon - http://indiankanoon.org/doc/9513811/ 35
that merely because a number of persons had taken gravely ill after receiving an injection from the
accused, a criminal degree of negligence was not proved.
71. In Jacob Mathews case (supra) a three-Judge Bench of this Court was examining a case of
criminal medical negligence by a doctor under Section 304A IPC. This Court reviewed the decisions
on the subject including the decision of the Privy Council in John Oni Akereles case (supra) to sum
up its conclusions in para 48. For the case at hand conclusions 5 and 6 bear relevance which may,
therefore, be extracted:
48. We sum up our conclusions as under:
xxx xxx xxx (5) The jurisprudential concept of negligence differs in civil and criminal
law. What may be negligence in civil law may not necessarily be negligence in
criminal law. For negligence to amount to an offence, the element of mens rea must
be shown to exist. 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. 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.
(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. The expression rash or negligent act as occurring in Section 304-A
IPC has to be read as qualified by the word grossly.
72. The legal position in England remains the same as stated in R. v. Bateman (supra). That is
evident from a much later decision of the House of Lords in R. v. Adomako (1994) 3 All ER 79 where
the legal principle of negligence in cases involving manslaughter by criminal negligence were
summed up in the following words:
...In my opinion the law as stated in these two authorities is satisfactory as providing
a proper basis for describing the crime of involuntary manslaughter. Since the
decision in Andrews v. DPP (1937) 2 All ER 552, was a decision of your Lordships'
House, it remains the most authoritative statement of the present law which I have
been able to find and although its relationship to R. v. Seymour (1983) 2 ALL ER
1058 is a matter to which I shall have to return, it is a decision which has not been
departed from. On this basis in my opinion the ordinary principles of the law of
negligence apply to ascertain whether or not the defendant has been in breach of a
duty of care towards the victim who has died. If such breach of duty is established the
next question is whether that breach of duty caused the death of the victim. If so, the
jury must go on to consider whether that breach of duty should be characterised as
gross negligence and therefore as a crime. This will depend on the seriousness of the
breach of duty committed by the defendant in all the circumstances in which the
defendant was placed when it occurred. The jury will have to consider whether the
extent to which the defendant's conduct departed from the proper standard of care
Sushil Ansal vs State Thr.Cbi on 5 March, 2014
Indian Kanoon - http://indiankanoon.org/doc/9513811/ 36
incumbent upon him, involving as it must have done a risk of death to the patient,
was such that it should be judged criminal.
It is true that to a certain extent this involves an element of circularity, but in this
branch of the law I do not believe that is fatal to its being correct as a test of how far
conduct must depart from accepted standards to be characterised as criminal. This is
necessarily a question of degree and an attempt to specify that degree more closely is
I think likely to achieve only a spurious precision. The essence of the matter, which is
supremely a jury question, is whether, having regard to the risk of death involved, the
conduct of the defendant was so bad in all the circumstances as to amount in their
judgment to a criminal act or omission...
73. There is no gainsaying that negligence in order to provide a cause of action to the affected party
to sue for damages is different from negligence which the prosecution would be required to prove in
order to establish a charge of involuntary manslaughter in England, analogous to what is
punishable under Section 304A, IPC in India. In the latter case it is imperative for the prosecution to
establish that the negligence with which the accused is charged is gross in nature no matter Section
304A, IPC does not use that expression. What is gross would depend upon the fact situation in each
case and cannot, therefore, be defined with certitude. Decided cases alone can illustrate what has
been considered to be gross negligence in a given situation.
74. We propose to revert to the subject at an appropriate stage and refer to some of the decided
cases in which this Court had an occasion to examine whether the negligence alleged against the
accused was gross, so as to constitute an offence under Section 304A of the IPC.