Document Fragment View

Matching Fragments

(4) the test for determining medical negligence as laid down in Bolam case, WLR at p. 586 holds good in its applicability in India.

(8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law, specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence.

10. In view of the above observations, it is worthwhile to further reproduce the observations made in paras 19 and 20 of the same judgment (Jacob Mathew v. State of Punjab) which are as follows:

19. An oft-quoted passage defining negligence by professionals, generally and not necessarily confined to doctors, is to be found in the opinion of McNair, J in Bolam V. Friern Hospital Management Committee, WLR at p. 586 in the following words (All ER p 121 D-F) [W]here you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham Omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill... It is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. (Charlesworth and Percy, ibid., para 8.02)
20. The water of Bolam test has even since flown and passed under several bridges, having been cited and dealt with in several judicial pronouncements, one after the other, and has continued to be well received by every shore it has touched as neat, clean and a well-condensed one. After a review of various authorities Bingham, L.J. in his speech in Eckersley v. Binnie summarized the Bolam test in the following words: (Con LR p. 79) From these general statements if follows that a professional man should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession. He should not lag behind other ordinary assiduous and intelligent members of his profession in the knowledge of new advances, discoveries and developments in his field. He should have such an awareness as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitations on his skill. He should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert. He must bring to any professional task he undertakes no less expertise, skill and care than other ordinarily competent members of his profession would bring, but need bring no more. The standard is that of the reasonable average. The law does not require of a professional man that he be a paragon combining the qualities of polymath and prophet.(Charlesworth & Percy, ibid., para 8.04) (Emphasis supplied)

14. Applying Bolam test the standard under professional skill and care accepted by a doctor is that of a reasonable average professional. Tine law does not require of a professional man that he be a paragon combining the qualities of polymath and prophet. No negligence or deficiency in medical service could be attributed to Dr. Basheer Alam.

15. For the aforesaid reasons, we feel that there is no force in this appeal and it is dismissed accordingly without any order as to costs.