The 6th of February, 1976, was a Friday; a bad day to break your leg. The operating room was disinfected every weekend. So one had to endure excruciating pain for three days, till the coming Monday. But there is always a silver lining. In sympathy, the nurses would spend their time regaling you with stories. One such story was a bit perplexing.
The staff joked that the surgeon had to be reminded that it was the left leg that needed his attention. It transpired that that particular doctor had once operated on the wrong knee, by mistake! The 1970s were not consumer-friendly times, as yet; so, obviously, the scalpel-wielder was still at large. However, to give the devil his due, this time, he did a marvellous job.
Unfortunately, history repeats itself. A woman had a problem with her ear. The malady required surgery. She agreed to go under the knife. The doctor did the invasive procedure, only to find that the ear was ‘okay’. He then decided to investigate the other ear and, sure enough, found the problem and rectified it. What is called ‘inner-ear’ sicknesses could lead to this situation; at least, that is what some doctors say.
Now, instead of being thankful, the ‘ungrateful’ woman sued the doctor. Not for negligence, but for ‘battery’.
At this point, we digress a bit, to inform readers about the nuances of these technical terms in relation to law. A threat, an intimidating action, words or acts causing a fear of hurt, are usually classified as an assault. ‘Assault and battery’ involves physical contact, either of the body-to-body type, or with a weapon, an instrument, an object. To illustrate, if I were to lift a vase and threaten to throw it at you, or even give you that impression, assault could be established. If I then hurled it at you, and whether I hit or missed you, it would include battery. To put a fine point on it, the miss would then be ‘attempted battery’.
You be the judge.
How would you decide the matter of the ears? To our mind, a plea of negligence would have greater sanctity. But is a decision taken on the spur of the moment, in the operation theatre, with the patient under sedation, a negligent act? Should the surgeon have sealed up the first ear, waited for the patient to wake up, be in her senses, explained to her the situation and, then, if she agreed, work on the other ear?
To explain a negligent act requires establishment of a lack of a duty of care. It may not include any mens rea (bad mind), meaning an intentional act to hurt, with knowledge of the outcome. But then, why ‘battery’? The word ‘battering’ has to do with harm, usually physical.
The lawyer was smart. From what is argued above, negligence may not have been possible to prove. The patient was cured, after all. So, the next best attack was a charge of battery.
Nature has given us an even number of external organs. It makes for symmetry and convenience. It helps when one member is affected or lost. The other one comes into play. Yet, it also leads to errors, either of the knee type or the instant aural one. The lady’s lawyer, obviously, banked on the fact that the operation was contracted on for ear-1, and not ear-2. ‘Attacking’ ear-2, with an instrument or instruments was an act of battery, according to the plaintiff.
You be the judge.
The court did hold for the patient, BUT, it passed an order for a ridiculously small amount of the equivalent of Rs2,400.
A couple of issues back, Moneylife had carried a story on the unhappy loss of a 10-year-old boy’s life. The parents did not sue but, instead, carried out a campaign to avoid similar incidences. Can one compare the ‘two-eared’ lady with the exemplary mother?
And, coming back to the dual organ theory, have you ever thanked God that lawyers are endowed with only one mouth? As, indeed, for the fact that everyone else is also so restricted?
Gifting. Getting. Buying. Selling. All in a day’s work. Or so we think. We need to think again.
There is a saying in law, ‘caveat emptor’. It means, ‘let the buyer beware’. The onus of a bad purchase is on the buyer, not the seller. True, the concept is changing these days and we need to be thankful for the turn of events. The shift is termed, ‘caveat venditor’. Theseller is liable too.
For now, we will not consider contracts. What about gifts? What happens when the gift hits back?
The personnel in charge of a prison in Lancaster County wanted help. Obviously, they had seen the killer dogs, on leashes, that some American police use to control crowds. They decided they wanted one too. The decision was to get a Rottweiler. Now Wikipedia paints a rather placid picture of the Rottweiler; with reservations. The rest of the world looks upon them as killer dogs.
That is the breed that the handlers wanted. Stocky, tough, alert, the Rottweiler would be the best. So they got one and named him Diesel. Why? Maybe, because both have German origins. Diesel was trained to keep the prisoners in check. And, since the prisoners are no spring chickens, Diesel had to be mighty efficient.
So Diesel attacked all and sundry, including five of the guards. Remember our previous title, “Who will guard the guards”? Diesel was more than up to that job. But since Diesel was prone to literally bite the hand that fed it, he had to go. He was gifted to a security agency, while glossing over the fact that Diesel brooked no nonsense. Diesel bit his new keepers. The keepers sued.
You be the judge.
Those who gifted lost in court. They had to pay 1.5 million dollars.
Next, we have a case involving our local tradition of distributing mid-day meals. The meal is a gift to the schoolchildren, no matter that the food also ensures attendance. Very often, we read that the children have fallen ill due to contaminated stuff being served. Usually the school is held responsible.
What if, at a wedding feast, a number of invitees fall ill? Or, maybe, be fatally sick? Who should be held responsible? The caterer or the host? Can anyone be sued?
We fall back to an old axiom of ours. If there is a malady, in this case literally, there has to be a remedy.
Now, you be the judge.
As for the schoolchildren, the institution must be put in the dock. It is they that served the food. The care has to be theirs. The authorities are usually being indicted and that is how it should be. However, in the matter of the wedding feast, is the host liable? To our mind, the answer is: ‘Yes’.
Why? When a person is invited and fed, he expects to be looked after, not poisoned. The host has a duty of care. He may, in turn, sue the caterer; but he cannot escape his obligation to his guests. Otherwise, all wedding feasts would be potential ‘Last Suppers’.
In the Rottweiler’s case, all that the donors had to do was warn the donees that Diesel was an attack dog and had been trained as such. The prison authorities concealed a fact that had the potential of harm. They had to pay. The argument may have been that it was a gift, not a purchase contract. No consideration (money) was involved. That would not have cut ice with the judge. He, obviously, saw it as the passing off of an unwanted and dangerous article onto another.
This was a case of caveat venditor, as are the other two. All without the basic ingredients of a contract. Yet, justice was served in one and must be so served in the others. So, the next time you offer a gift, think twice. Please.
The Law of Torts is still in nascent stage in India but only if the aam aadmi wakes up will it be successful
A Moneylife reader wrote to us recently, asking if this column carried true stories. The answer is an unequivocal yes. We do not need to make them up. Law is full of such stories and truth is stranger than fiction. What made us happy, when we got the question, wasthat readers are truly surprised by the strange cases we try to select and analyse.
Some cases that we write about are old. A few are from the time when I was 10 years old and are still valid, 60 years later! But we do try to bring in topical information. Like the one below and, in the next issue, where two similar instances are discussed.
What does one do when one is looking for a job? The easiest way is to get enrolled with a jobsite. It costs nothing; is very impersonal; and there are so many to choose from. Type out a résumé, save it, and post it on as many sites as possible.
Then comes the wait. The candidate thinks that he (or she) is the one most likely to get that fantastic job that he has been dreaming of. Wait. Wait. Wait.
To show its efficiency, the jobsite lines up an interview. The candidate is thrilled. Takes the day off, losing his leave or salary. Gets suited and booted and goes for the interview. It goes off really well. He feels sure that the job is his.
That is not what happens always.
A lawyer colleague went through it, not once but many times, until realisation dawned that he was being had. Taken for a ride. There were no jobs available but the agency wanted to show its reach and efficiency. The HR guy, supposedly looking for a candidate, was just filling in his time, most likely with the agency in the know.
Our friend was losing time and money, or at least his leave. Does he have recourse to any relief? Suppose he collected enough evidence to show it was all a sham, if not a scam, and sued the agency. Would he succeed?
You be the judge.
How would you decide the case? In our opinion, the lawyer is entitled to be compensated, if he can prove that the calls were a deception, a merry-go-round of useless trips. He needs to show a loss also—of time, of salary, of effort and of money. The law of torts is still in its nascent stage in our country but only if the aam aadmi wakes up will he be successful.
While writing this article, we found another source of trouble in the head-hunting business. Some unscrupulous firms, in the know of the job-seeker’s existing employment, convey, what is essentially confidential information, to the present employer! So, if the candidate has enough foresight to ensure a confidentiality clause, he will be successful in court. He can then sue for breach of contract, compromising confidentiality, loss of sanctity at the workplace, maybe even destruction of career. You be the judge.
The Flip Side
Usually, there is another side to every story; often, closer home. Many companies have a beef with candidates they find on online jobsites. Prospective employees confirm interview appointments… and just do not turn up; or take the appointment letter and do not join. Why? Because those who say they are interested, aren’t really. They are quite happy with what they have and respond to advertisements for a lark, or to check their market value.
There is a wider ramification. Statistics-wise. Government employment bureaux are where all and sundry apply. And forget to get off the list when they do get a job. This gives a skewed picture of unemployment figures. Who is to blame?
You be the judge.
Accidents happen all the time and are a combination of several factors. Yet, when it comes to fixing responsibility who is to blame?
This morning’s newspaper carried a story about a railway accident in which a woman lost her legs while trying to board a local train. Whenever Moneylifers read a story like this, they are reminded of Samir Zaveri, Mumbai’s hero. A man who stands the tallest of all… without legs!
Yet, an important, though unconfirmed, part of the story was that the woman was trying to board a running train. And herein lies the rub.
An accident is a combination of certain factors that, in isolation, would mean nothing and go unnoticed. But, when all the unpropitious stars are in alignment, or misalignment, tragedies occur. Who then is to blame? The moment something goes wrong, and if the person involved is dead, the usual PR responses are trotted out. Pilot’s mistake. Equipment malfunction. Human error. Sabotage.
This writer firmly believes in the adage that, if there is malady, there has to be a remedy. In the accident mentioned above, what would you decide if you were the judge?
Suppose the woman was about to board the train and it started. Would you try and call it her mistake? After all, there are no audible signals to indicate a start. All trains do not always halt for a specific period. Some platforms are so curved and the trains are so long that neither the guard nor the driver can see all the compartments. Travelling everyday and coming home safe is a gamble. Some win, some lose. It is a throw of the dice.
Unfortunately, people take their lives into their hands so many times a day. How would you decide cases like these? The courts, while sympathetic to cases of grave injury, do not pass orders without going into the merits of the case.
Let us, at this moment, digress a bit and consider the recent initiatives taken by the railways due to the efforts of activists and Moneylife. Ambulances have been kept ready at some stations. Most importantly, platforms have been raised. Yet a lot remains to be done.
Maybe the most important facet now facing us is the care that passengers themselves must take. There is no programme to teach them the basics. It does not take a rocket scientist to understand that trying to board a moving train or bus is dangerous. It requires less grey matter to understand not to travel on train rooftops or on the links between bogies. If an accident were to take place in these circumstances, what would you say?
You be the judge.
Cases of gross negligence, like rooftop travel, can bring no relief. In fact, if the perpetrators survive, they can, and should, and are being punished. Would you grant relief to persons, or kin of those persons, who are involved in accidents while crossing railway tracks in spite of foot over bridges? Would you allow compensation to those persons involved in accidents, often fatal, that occur when they are busy talking on their cell phones or listening to the radio?
You be the judge.
There is a recent new, deadly trend. Footboard travellers block half the door, what they call the ‘right side’, forcing passengers getting on and off to use only half the available space. That means the passengers get only half the time to board or alight. Accidents are, therefore, bound to happen. Who would you hold responsible?
To begin with, both, the authorities for not implementing the rule against travelling on the footboard, even when there is room to move inside, and the foot-boarders, for endangering life. And above all, all of us for lacking basic civic sense.
The fault lies with both, the pot and the kettle. Both need a good scrubbing.