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Medical Negligence - Mayannk U. Sharma



In many of the branches of the law of torts like assault, battery, deceit, and malicious prosecution, ‘the state of mind’ of a person is relevant to ascertain his liability. It must be observed whether the wrongful act committed was done with malicious intent or not. The conduct of the defendant must be adjudged as per the standards of a reasonable and prudent man and the defendant must only be punished if his conduct falls below the expected standard of a reasonable man. When the circumstances demand care and a person fails to perform the duty to take care, he is liable for the tort of negligence. A mental element becomes one of the most crucial elements while ascertaining liability.

As the law evolved, so did the understanding of the mind and brought into limelight the various psychological idiosyncrasies etched in the subconscious mind of man. The understanding of these is imperative as well as its effects on law and how its dynamics are affected while dealing with these oddities is what this blog aims to achieve, especially in a pandemic struck era that tends to take a toll on the mind.


Up until the 15th century, no law in medieval England would mitigate the responsibility of a tortfeasor towards payment of compensation while acting under lunacy. It was in 1787, that Sir Matthew Hale (an influential English barrister and judge) explained that lunacy did not excuse a man from liability to pay damages incurred by committing a tort “Because such a recompense is not by way of penalty, but a satisfaction for damage done to the party.”Throughout history, the mentally deficient have been held liable for a tort being committed by them intentionally, but would the court hold them equally liable for a tort committed by them intentionally? For how such a distinction can be created as intention forms one of the bases for dispensing liability.

Bacon, while explaining his interpretation of maxim XII (receditur a placitis juris, potius quaminjuriae et elicta maneant impunita) says that “a lunatic can have neither will nor malice.”[1] As per this statement, it would appear that there was, under Common law, a principle by which the responsibility of the tortfeasor under an act of insanity can be mitigated.

The principle cited by judges while dealing with cases of proved mental incapacity being tried under a civil wrong state “Unless the actor is a child, his insanity or other mental deficiency does not relieve the actor from liability for conduct which does not conform to the standard of a reasonable man under like circumstances”[2]. However, my question is that how can a person with proven mental incapacity be tried as per the standards of a reasonable and prudent man – what the law calls an ‘ObjectiveStandard’ in the first place? A difficulty to ascertain mental incapacity while dealing with the law of torts questions the ken of the court as the same distinction between mental incapacity and prudence is followed during criminal trials or even while adjudicating cases on guardianships, will, and family law. An illustration of this dichotomy between civil and criminal justice systems can be seen in Polmatier v Russ[3], wherein all the facts remaining the same, the defendant was exonerated under the criminal justice system due to a plea of insanity instead, he was held liable for damages under tort law as the judge refused to entertain a plea of insanity. For example, a blind person may be unable to avoid trespassing into the property that a sighted person could easily navigate and hence would not be held liable for compensation. Again, however, a person with an acute mental illness is excluded from such consideration.

One of the prominent defences put forth by legal experts for excluding mental incapacity as a defence in torts is that of ‘deinstitutionalization.’ The severely mentally ill that reside in the community need to be reintegrated back into society. The courts ruled that holding the mentally all liable for intentional and negligent torts would be the best way to reintegrate them as the neighbors would be comfortable around the mentally ill knowing that anyone injured by acts of such persons could sue for compensation.

If, however, the courts want to adopt an incentive-based approach to look after the mentally ill, then instead of imposing the onus on the mentally incapable, the neighbors/caretakers should be held responsible for the acts of those vulnerable to committing such torts i.e., the mentally incapable. This would allow further integration of the mentally incapable into society as fear of liability would compel the caretakers to go the extra mile to avoid paying compensation.

During the Covid-19 pandemic, the reform of such archaic 17th-century laws becomes even more pertinent as the prolonged lockdown induced severe mental and emotional distress, especially among working adults and students. During an online survey, 1871 responses were collected from individuals, and 90.05% were analyzed. Of those analyzed, about two-fifth (38.2%) had anxiety and 10.5% of the participants had depression. Overall, 40.5% of the participants had either anxiety or depression.


The law’s intransigence towards the reform of medieval laws does more harm than good to the mentally incapable and furthers the deep-seated prejudices against them. Insanity not as a defence in torts can be traced back to Weaver v Ward which espoused the doctrine of “No liability without fault” by stating that “no man shall be excused of a trespass except that it be judged utterly without his fault.” However, the fallacy of this case lies in acknowledging that it is almost impossible to imagine someone who could be more “utterly without fault” than a mentally incapable person who is unable to understand the ramifications of his actions. I feel that nothing but a total reform in these medieval laws could do justice to the mentally incapable in the 21st century as the late Justice Holmes said-

“There is no doubt that in many cases a man may be insane and yet perfectly capable of taking the precautions and of being influenced by the motives which the circumstances demand. But if the insanity of a pronounced type exists, manifestly incapacitating the sufferer from complying with the rule which he has broken, good sense would require it to be admitted as an excuse.”[4]

Author(s) Name: Mayannk U. Sharma (O.P. Jindal Global University, Sonipat)



  1. Bacon, Maxims Of Law XII 55 (James Spedding Et. Al. 1630).
  2. Restatement (Second) Of Torts 283B Cambridge, Mass, American Law Institute (1965).
  3. Polmatier v. Russ, 537 A.2d 468 (1988).
  4. Oliver Wendell Holmes, Jr. The Common Law109 (Paulo J.S. Pereira Et. Al. Ed. 1881).