List of top Legal Studies Questions on Law of Torts asked in CLAT PG

It is well recognized that actionable negligence in context of medical profession involves three constituents (i) duty to exercise due care; (ii) breach of duty and (iii) consequential damage. However, a simple lack of care, an error of judgment or an accident is not sufficient proof of negligence on part of the medical professional so long as the doctor follows the acceptable practice of the medical profession in discharge of his duties. He cannot be held liable for negligence merely because a better alternative treatment or course of treatment was available or that more skilled doctors were there who could have administered better treatment.
A medical professional may be held liable for negligence only when he is not pos sessed with the requisite qualification or skill or when he fails to exercise reasonable skill which he possesses in giving the treatment. None of the above two essential conditions for establishing negligence stand satisfied in the case at hand as no ev idence was brought on record to prove that Dr. Neeraj Sud had not exercised due diligence, care or skill which he possessed in operating the patient and giving treatment to him. When reasonable care, expected of the medical professional, is extended or rendered to the patient unless contrary is proved, it would not be a case for actionable negligence.
tracted with edits and revisions from Neeraj Sud v Jaswinder Singh 2024 INSC 825

The elements of tort of negligence consist in – (a) duty of care; (b) duty is owed to the plaintiff; (c) the duty has been carelessly breached. Negligence does not entail liability unless the exacts a duty in the given circumstances to observe care. Duty is an obligation recognised by law to avoid conduct fraught with unreasonable risk of damage to others. The question whether duty exists in a particular situation involves determination of law. Hence, three ingredients are necessary for the existence of a duty of care: (i) foreseeability of the damage, (ii) proximity of relationship between the parties; and (iii) whether it is “just, fair and reasonable” that the law should impose a duty of care. In Caparo Industries Plc. v. Dickman, 1990 2AC 605, the court held that breach of duty is concerned with the standard of care that ought to have been adopted in the circumstances and whether the defendant’s conduct fell below that standard i.e., whether he was careless.
The court while quoting Rajkot Municipal Corporation v. Manjulben Jayantilal Nakum, 1997 stated that as a tort, negligence consists of legal duty to take care and breach of that duty. Duty determines whether the type of loss suffered by the plaintiff in the particular way in which to occurred can ever be actionable. The division of negligence into duty, breach and consequent damage is convenient for the purpose of exposition but it can be confusing because the issues will often overlap. The process of determining a breach of duty involves three steps: First, it is necessary to ascertain the qualities of the reasonable person, given the qualities attributed to him, would have taken in the circumstances. The factors that are permissible to take into account in this regard are prescribed by law, but the amount of care that the reasonable person would have taken is a question of fact. Thirdly, it must be determined whether the defendant took less care than the reasonable person would have taken.
 (Extracts from Managing Director, Kerala Tourism Development Corporation Limited v. Deepti Singh and Ors., 2019 SC)

“As a matter of fact, when a patient is admitted to the highly commercial hospital … a thorough check up of the patient is done by the hospital authorities, it is the Institute which selects after the examination of the patient that he suffers from what malady and who is the best doctor who can attend, except when the patient or the family members desire to be treated by a particular doctor or the surgeon as the case may be. Normally, the private hospitals have a panel of doctors in various specialities and it is they who choose who is to be called. It is very difficult for the patient to give any detail that which doctor treated the patient and whether the doctor was negligent or the nursing staff was negligent. It is very difficult for such patient or his relatives to implead them as parties in the claim petition…We cannot place such a heavy burden on the patient or the family members/relatives to implead all those doctors who have treated the patient or the nursing staff to be impleaded as party. It will be a difficult task for the patient or his relatives to undertake this searching enquiry from the hospital and sometimes hospital may not co-operate. It may give such details and sometimes may not give the details...
The burden cannot be placed on the patient to implead all those treating doctors or the attending staff of the hospital as a party so as to substantiate his claim. Once a patient is admitted in a hospital it is the responsibility of the Hospital to provide the best service and if it is not, then hospital cannot take shelter under the technical ground that the concerned surgeon or the nursing staff, as the case may be, was not impleaded, therefore, the claim should be rejected on the basis of non-joinder of necessary parties
In fact, once a claim petition is filed and the claimant has successfully discharged the initial burden that the hospital was negligent, as a result of such negligence the patient died, then in that case the burden lies on the hospital and the concerned doctor who treated that patient that there was no negligence involved in the treatment. Since the burden is on the hospital, they can discharge the same by producing that doctor who treated the patient in defence to substantiate their allegation that there was no negligence. In fact, it is the hospital who engages the treating doctor thereafter it is their responsibility. The burden is greater on the Institution/ hospital than that of the claimant.”
[Extracted from Smt. Savita Garg v. The Director, National Heart Institute (2004) 8 SCC 56].

“In India, the government can be held liable for tortious acts of its servants and can be ordered to be paid compensation to the persons suffering as a result of the legal wrong. Article 294(b) of the Constitution declares that the liability of the Union Government or the State Government may arise “out of any contract or otherwise”. The word otherwise implies that the said liability may arise for tortious acts as well. Article 300 enables the institution of appropriate proceedings against the government for enforcing such liability. … Even prior to the commencement of the Constitution, the liability of the Government for tortious acts of its servants or agents were recognised vide Peninsular & Oriental Steam Navigation Co. v. Secy. of State, (1868-69) 5 Bom HCR APP 1. After the commencement of the Constitution, there have been several cases in which the Union of India and State Governments were held liable for tortious acts of their employees, servants and agents. All those cases were not necessarily by invoking the writ jurisdiction of the Supreme Court and the High Courts. Though, the Government is liable for tortious acts of its officers, servants or employees, normally, such liability cannot be enforced by a Writ Court. An aggrieved party has the right to approach the competent court or authority to seek damages or compensation in accordance with the law of the land.
... But if fundamental rights have been violated, and if the court is satisfied that the grievance of the petitioner is well founded, it may grant the relief by enforcing a person’s fundamental right. Such relief may be in the form of monetary compensation/damages”. 
[Extracted from: Kaushal Kishore v. State of Uttar Pradesh, Writ Petition (Criminal) No. 113 of 2016, decided on January 3, 2023.]

Volenti non fit injuria is a:

Following is not an essential of tort of negligence

What defense could be used when an injury is caused to a person due to unforeseen or unexpected events in spite of reasonable care taken by him?

In Rylands v. Fletcher, Justice Blackburn used the term(s):

Defamation is:

Contributory negligence is a:

Match the incorrect entries.

(A) Injuria sine damnum	Ashby v. White
(B) Damnum sine injuria	Gloucester‘s Case
(C) Remoteness of Damage	Rylands v. Fletcher
(D) Negligence	Donoghue v. Stevenson

Test of directness for determining remoteness of damage was laid down in:

Briefly explain and critically evaluate the concept of “victims' compensation” in India in the light of statutory provisions and judicial decisions.

The Supreme Court observed that the Ordinance making power has been used to such an extent that its use has become ‘fraud on the Constitution’. Critically examine this statement in the light of constitutional provisions, practices/conventions and judicial decisions.