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IMPERTIA CULPAE ADNUMERATUR: TRAVERSING THE LAW ON PROFESSIONAL NEGLIGENCE (By-Anupam Singh Sengar & Manik Tindwani)
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IMPERTIA CULPAE
ADNUMERATUR: TRAVERSING THE LAW ON PROFESSIONAL NEGLIGENCE
Abstract
In the twenty-first century,
the world has become more intricate than ever. Nowadays personal and
professional relations are not of smaller amplitude but are tangled up in much
larger ones. Mostly every kind of human interaction has taken the form of
service. Today most of the facilities provided have taken a commercial form.
Their magnitude, risk involved, promises undertaken are all on a large scale.
Every minute service relates back to much serious concern. Notwithstanding the
nature of a service, the service provided is to be scrutinized and modeled in
such a way that it is safe and sound. This in turn increases the liability of
the service provider towards his or her clients. Thus indirectly points towards
a common ground that their always exists a duty of a professional towards their
clients. The very maxim impertia culpae adnumeratur signifies the same goal.
The goal extends to the ideology that when one person signifies to be a
professional in providing any service, he should be sincere enough and his
conduct should justify his professionalism and he should be made liable to the
extent of non-rendering of his professional care and professional services. The
civil law of torts governs most of the civil interactions and any such duties.
The tort has termed such duty of protection to be “duty of care” and its breach
as negligence. But this notion of ethical care towards a service undertaker was
much earlier felt for and discussed about in historical civilization as of the
Roman Empire. This paper tends to discuss on the rise of this maxim, its scope
and the ideology behind it and how gradually it was shaped in the law of torts.
Introduction
The word negligence is an
everyday used term. Its origin can be traced back to the Latin word “negligentia”
which means “failing to pick up”. Generally, it stands for any act of
carelessness more particularly in legal sense it stands for any act or omission
without reasonable standard of care to be exercised by a person in a situation.
In Blyth v. Birmingham Water Works Co[3] Alderson
defined negligence as,
“the omission to do
something which a reasonable man would do, or doing something which a prudent
or reasonable man would not do”.[4]
In Lochgelly Iron &
Coal Co. v. Mc Mullan[5], Lord
Wright said,
“negligence means more
than headless or careless conduct, whether in commission or omission; it
properly connotes the complex concept of duty, breach and damage thereby
suffered by the person to whom the duty was owing”.[6]
Only in the 18th century did
negligence become a separate cause of action in English law. But the concept of
negligence can also be traced back to the city of Greece under the great Roman
Empire. They coined the term culpae which directly and indirectly
relates to the term negligence in the modern tort law. The concept of impertia
culpae adnumeratur also relates to negligence. Reinhard Zimmermann’s book
the Law of Obligations, Roman Foundations of the Civilian Tradition[7] defines
this maxim as one of the most important aspect of labor law during the Roman
Empire. Today in law of tort the most prominent elements for the commission of
act of negligence are the duty of care of the person performing an act, the
duty must be towards plaintiff, breech of the said duty, damage resulting from
such breech. The maxim imperitia culpae adnumeratur deals with one of
the most essential elements of negligence that is the duty of care towards the
plaintiff. It defines that every professional while rendering his or her
services should be very careful and should take every possible action that they
can take while delivering their
services. They are expected
to provide such reasonable services as a person with par to their skills would
have provided and any fault in such services is considered to be clear cut negligence.
Thomas Glyn Watkin’s book “The Legal History of Whales” states that the maxim “imperitia
culpae adnumeratur” means that skills increase blameworthiness, i.e.,
higher standard of services are required of professionals[8].
Imperitia Culpae
Adnumeratur
Imperitia culpae annumeratur is a maxim of Roman Law,
developed by the roman jurists during the early second century when bonded as
well as professional labor was one of the prominent part of the Roman Empire.
Roman jurisprudence was strict towards the individuals providing professional
services, it followed the principal that a person should be accountable for the
level of service he or she is offering thus to attract the liability of
professionals who were regularly acquitted even for their negligence, they
created this maxim.
In Latin language imperitia
means inexperience, ignorance or lack of skill. This term was devised to
capture the liability of those professionals who destroys or damage the
property of their client while rendering services. This term was used in a
broad range of situations making the professionals accountable for their
conduct. The jurists analyzed this crucial term for use in legal conflicts
involving a wide spectrum of people engaged in the empire’s labour. For
instance, you may ask a jeweller to set a diamond for you, during the process,
it breaks; or surgery performed by a doctor who was hired does the patient more
damage; or you hand up a cup for carving to an artist and the cup breaks. All
these examples elucidate similar circumstances. Furthermore, culpae
means guilt or fault and more deeply in roman and civil law it relates to
actionable negligence or fault especially, failing to exercise the care and
standard of precaution required under the parties’ special relationship with
each other. Furthermore, Paul says that ‘Culpa is not to foresee what a
reasonable man would have foreseen’. Thus, the maxim clearly demonstrates
the principle that every lack or skill or ignorance by a professional is to be
considered negligence in the eyes of law. The maxim has been defined as
ignorance, or want of skill, is considered a negligence, for which one who
professes skill is responsible.
The Romans made a distinction
between “dolus”, which referred to intention, and “culpa”, which
referred to both negligence and incompetence. Although culpa and casus
are often classified as unintended conduct, dolus comes within the
category of purposeful action. The idea of culpa included the classification of
both careless and inept misconduct. According to the imperitia culpae
adnumeratur maxim, ignorance or incompetence, for instance on the part of a
medical practitioner, amounted to negligence[9]. Carstens and
Pearmain accept that in Roman law the onus of proof rested with the plaintiff to
prove that the loss he or she suffered was due to the conduct of the defendant,
but that the maxim imperitia culpae adnumeratur was used to alleviate
the plaintiff’s evidentiary burden. Carstens adds that since it is not stated
in the extant source material, proving medical negligence in Roman law was
difficult. However, he argues that it may be agreed that in situations of
medical negligence, the burden of evidence was with the plaintiff, who had to
show that the physician’s purported conduct resulted in personal damage.
These domains of law overlap
significantly, and Roman jurists battled with the nuances of how to apply these
concepts. This regulation was implemented when a doctor conducted an operation
in an incompetent way and when a doctor gave a patient the incorrect medicine.
Inexperience is numbered as a fault, “inexperience is counted as a fault, as
if a physician would kill your servant because he had badly cut him or given
him a medicine wrongly”[10].
Proculus says that if the doctor cuts a servant expertly, Aquilia’s action will
be either out of place or outlawly: It is the same law if he used the drug
wrongly[11].
When the carelessness or
ignorance of a doctor was evaluated, the imperitia culpae adnumeratur
norm of Roman law also found application in Roman-Dutch law. De Groot commented
as follows:
“That death is through
negligence, including omission or ignorance of a physician, midwife, omission
or ignorance of a waghanaer or skipper, or of his own weakness in the
management of a ship or mates”[12].
Carstens adds that in the
context of legal culpability, the Dutch terms of onwetenheid, onverstand,
and zwackheid were equated to the idea
of blame, which suggests a recurrence of the situation in Roman law. Van
Leeuwen claims that it is debatable whether or not a doctor would be held
accountable for providing a patient medication that either caused injury or
resulted in his death due to the doctor’s carelessness and ignorance.[13] A
physician would have likely been penalized at the court’s discretion due to the
many changes made to the statute.
Voet made the following
comment on the enforcement of harsh punishments on doctors in situations when
people died as a result of medical malpractice:[14]
“While no one has the right
to act when he knows or should know that his incompetence or infirmity may
endanger another person, it follows that the following individuals will be held
accountable under this rule: doctors, pharmacists, midwives, those who perform
surgery without experience, those who mistakenly administer poisonous
medication, and those who administer poison instead of medication.”
Furthermore, the Romans
stipulated that in order to be held accountable, a person had to have engaged
in either dolus (willful behaviour) or culpa (negligent
behaviour). In an Aquilian action, culpa, according to Paul[15], is ‘not
to foresee what a reasonable man would have foreseen’. In addition, lack of
professional skill, lack of capacity, lack of knowledge and general incompetence
relative to the standards that were expected of a person giving a service were
incorporated in the rule imperitia culpae adnumeratur[16]. This
approach accords with the stance in modern times that the ignorance or
incompetence of a professional person who presents himself as having a certain
level of expertise will be regarded as negligent conduct[17].
Essentials Of
Imperitia Culpae Adnumeratur
A fortiori this maxim relates to three
essential features which can be termed as the reason of negligence in service
of any professional:-
1.
Ignorance of Skill
The first and the most
important reason is the ignorance or mistake in a skill, required to be
followed by the professional such ignorance are considered to be negligent
behavior and is equated to negligence. According to Carstens & Pearmain, it
is implied that failing to exercise due care and diligence in circumstances
where a certain level of expertise is required would be inappropriate, and if a
person is further expected to anticipate that failing to do so may hurt a
patient then he will be negligent. De Groot outlined the Roman-Dutch legal
stance that the doctor is responsible for any guilt that results from simple
ignorance, a lack of comprehension, or infirmity. A duty of care arises if the
doctor agrees to treat the patient, according to Carstens and Pearmain’s
analysis of the imperitia rule.
2.
Want of Skill
A medical practitioner is an
expert in the area of medicine, and if he is shown to be incapable of doing his
job, he will be held legally responsible for his obligation to the patient. A
person would unquestionably be deemed negligent in his deed, for instance, if
he flew an aircraft without any prior experience or instruction and without
considering the implications.
3.
Skill in Par with Professional Level
The standard of care expected
of a professional man is to display the level of care and skill held by a man
of average competence operating a specific calling; the standard may range from
calling to calling based on the degree of knowledge and perfection obtained in
that calling. The basic prerequisite, on the other hand, is the same for all
professions, trades, and callings. Professional men are expected and obligated
to exhibit the same level of care and expertise as the average practitioner in
that profession demonstrates. As a result, a reasonable and fair quality of
care and competence is necessary. The law regards the practitioner who
possesses average ability and competence in the practice of his trade as the
standard-setting entity. “If a person puts himself up as possessing unique
ability and expertise, and he is consulted by or on behalf of a patient, he
bears a duty to the patient to take proper caution in performing the treatment,”
remarked Lord Hewart C.J. in R.
vs. Bateman[18]. If he
accepts responsibility for the therapy and the patient consents to his guidance
and treatment, he bears a duty to the patient to administer the treatment with
attention, care, knowledge, skill, and prudence.
Comparision With Duty
Of Care
When the safe execution of an
act depends on the professional knowledge and competence of the actor, it is
well established in English law that he must possess such knowledge and skill.
He must have a reasonable level of competence and ability that a member of his
profession, trade, or vocation would be expected to demonstrate under the
circumstances of the case. The ideology comes from a long and illustrious
lineage. Its origins may be traced back to the Roman era, when it was initially
created. It made its way into the Digest and the Institutes with the
systematization of Roman law, in the form of a maxim-Imperitia culpae
adnumeratur[19]. As a
result, inexperience was associated with carelessness. Despite the fact that
the Digest names medical practitioners, midwives, artificers, assessors,
building inspectors, and drivers as professionals who must behave with
professional competence, it states in broad terms that lack of skill by someone
who claims to have professional ability is negligence. In these circumstances,
Roman law defined negligence as any breach of duty. The Roman theory of degrees
of carelessness, however, has not been adopted by English law. The English law
has introduced a new notion relating to the previous one that is the notion of
“duty of care[20]“ and
its failure constitutes negligence. It is true that in English law there
appear no degrees of carelessness, but the actor must adhere to a
suitable, higher or lower level of care depending on the facts of the case. it
is factual that English law takes a different
method but does not change the essential premise that inexperience or
a lack of expertise constitutes carelessness. In fact, originally the doctrine
was never rejected and the doctrine’s validity has never been questioned, and
it is well-established in the law. In English law, also anybody who
engages in the performance of an act that should only be safely performed by an
experienced or talented man must have that expertise or competence. This idea
applies to all transactions and activities that can be imagined. It is expanded
upon in the case of professional men who practice occupations that were
practiced in the Roman era, with the required addition of all other professions,
trades, and callings that are practiced now.
As a result, the law paid special attention to
the level of care demonstrated by medical practitioners, dentists, nurses,
barbers and hairdressers, attorneys, accountants, valuers, bankers, and others
in the course of their trade. The objective standard of care is that of a
hypothetical reasonable man.” And whether the actor exercised or did not exert
the level of care that a reasonable man would have done in the given
circumstances is a matter of fact in every case.” The allusion relates to
artisans’ responsibility to properly exercise their trades “It encapsulates the
law as it existed at the time. Given the public’s high regard for medical
practitioners’ care and attention to patients, it’s no surprise that the level
of competence expected of medical professionals is well established. Tindal
C.J. stated in Lanphler v. Phipos[21]:
“Everyone who enters a learned profession promises to apply a fair amount of
attention and competence to their work. If he is an attorney, he does not
guarantee that you will win your case; a surgeon does not guarantee that he
will cure you; and a surgeon does not guarantee that he will employ the most
advanced technology available. There may be people with more schooling and advantages
than he does, but he promises to deliver a level of expertise that is fair,
reasonable, and competent.” Everettv
Griffzths[22]
“Scrutton L.J. concluded that a medical practitioner assumes that he possesses
the average ability and knowledge required to execute his obligation to
individuals who come to him in that capacity. The responsibility imposed on
medical men in English law is to provide a fair and reasonable level of care
and competence to the practise of their profession. The quality of care expected
of American doctors and nurses is the same.
Erie C.J . said in Rich v. Pierpont[23] “A medical
man is not liable simply because another practitioner may have demonstrated
better skill and knowledge; rather, he is required to possess that degree of
talent which cannot be defined, but which, in the jury’s judgement, is a
competent degree of ability and knowledge.” It is insufficient to hold the
defendant accountable because some medical men with considerably more
experience or ability may have used a higher level of competence, or even if he
himself might have used a higher level of care. The question is whether there
was a lack of competent care and ability to the point where the undesirable
outcome resulted. In Sinz v. Owens[24],33 Edmonds
J. of the California Supreme Court found that the standard of care needed of a
physician was not the best skill known
to medical science, but
rather the degree of skill, knowledge, and care commonly possessed. Bingham
L.J. in Eckersley v. Binnie[25],
summarised the Bolam test in the following words:
As a result of these broad
assertions, a professional should be able to command the corpus of information
that is part of the professional equipment of the average member of his
profession. In terms of understanding of new breakthroughs, discoveries, and
developments in his area, he should not trail behind other ordinary assiduous
and intellectual members of his profession. He should be conscious of his
knowledge gaps and skill limits in the same way that an ordinary competent
practitioner would be. He should be aware of the hazards and risks in every
professional work he does to the same degree that other qualified members of
the profession are. He must provide no less competence, skill, or care to
whatever professional activity he does than other typically competent members
of his trade, but he does not need to bring any more. The fair average serves
as the benchmark. The law does not demand that a professional man be a paragon
who possesses both polymath and prophetic traits.
Medical Negligence
And Imperitia Culpae Adnumeratur
In a doctor-patient
relationship, the doctor owes the patient a legal obligation, and any refusal
to act in conformity with accepted medical standards - as stipulated by the
legal duty - is unjust. A medical practitioner is a specialist in the field of
medicine, and if he lacks competency, he will be held accountable for breaching
his legal duty to the patient. The maxim imperitia culpae adnumeratur was also
used in Roman-Dutch law when the courts were considering the carelessness of,
say, a medical practitioner[26]. Today, the maxim means, among other things,
that a medical practitioner is negligent if he or she makes a false
representation to a patient by attesting to his or her abilities and knowledge,
and thus competence, to conduct a specific medical procedure while knowing that
this is not the case[27]. Dutch
settlers introduced Roman-Dutch law to South Africa in the seventeenth century,
citing Roman law in Dutch legal writings[28]. When
patrimonial damage resulted from an injuria, the plaintiff had two options
under Roman and
Roman-Dutch law: either bring
an action based on the actio iniuriarum to recover damages for the insult
received, or bring an action based on the Aquilian action to recover damages
for the loss of patrimonial property. The complainant must demonstrate that the
alleged conduct resulted in him suffering damnum, or patrimonial loss.[29] This
should not be confused with a painful or uncomfortable activity. De Groot
established the view that simple stupidity, incomprehension, and infirmity are
akin to guilt, for which the doctor is accountable, in Roman-Dutch law. A duty
of care occurs if the doctor consents to treat the patient, which is another
aspect of the imperitia rule.
Foundational Principles of
South African Medical Law[30],
According to these authors, ignorance or incompetence is considered negligence,
i.e. the lack of professional expertise and experience that the medical
profession requires and regulates. Wrongfulness is merely one of the elements
required to establish delictual liability in South Africa. Another component is
culpa, which in a larger sense denotes fault, but in a more specific sense
denotes negligence (culpa). A medical professional will be judged not only on
the component of culpa, but also on the yardstick of imperitia culpae
adnumeratur, which translates to “lack of skill.” It indicates that a
reasonable medical practitioner should be aware that a patient may be damaged
if they are treated by a medical professional who is inexperienced and
untrained. When one has demonstrated that the defendant’s conduct (to foresee
harm and guard against it) was unreasonable, the element of negligence (culpa)
as part of delict is established. If it fell short of the standard of conduct
of a hypothetical reasonable doctor in the same situation, it would be
unreasonable. Acceptable worldwide medical principles that have been published
and peer-reviewed serve as the standard for this hypothetical reasonable
doctor. A medical practitioner is an expert in the field of medicine, and if he
lacks competency, he will be found in breach of his legal responsibility to the
patient and will be held accountable. In S v Mkwetshane[31]The
accused was a community service intern at a hospital. The deceased, who
was effectively the defendant in this case, was an asthmatic patient. A nurse
at the hospital noted that the defendant was having trouble breathing one
morning, and the accused, who was the only doctor present at the time, was
summoned to help. The defendant was in a dreadful state and foaming at the lips
when the accused arrived at her bedside. The accused gave the defendant 20cc of
amiophylline to help him breathe,
but the defendant’s
respiration did not improve. He then decided to give the defendant 20cc of the
medication paraldehyde since he thought he was witnessing an epileptic episode.
Furthermore, the accused administered another dose of the original medicine to
the defendant. The defendant’s condition improved, and the accused abandoned
her, but she died later. The cause of death was determined to be a deadly
overdose of the first substance administered by the accused. The defendant was
found guilty of culpable homicide and drug administration incompetence. The
case was appealed, with the defence arguing that, despite his lack of
expertise, the accused was responding to an emergency situation and making the
best decisions he could under the circumstances. The defence was rejected by
the court because the accused might have sought aid from a nurse or someone
else if he had known he lacked the essential knowledge and expertise, but failed
to do so. The appeal was therefore dismissed. In McDonald v Wroe[32]The
plaintiff’s wisdom teeth were causing her trouble. She went to the defendant’s
dentist, who advised her to have three of her teeth extracted. The procedure
was carried out under a general anaesthesia. The plaintiff suffered numbness
and a sense of needles pricking her face after waking up from surgery, and it
was later revealed that this was due to nerve damage caused by the surgery. The
harm was permanent, according to the expert witnesses who testified in the
case. The plaintiff filed a lawsuit against the defendant, alleging that he
failed to send her to a specialist despite knowing he lacked the necessary
expertise and skill to do the treatment. The court found the defendant doctor negligent
under the imperitia culpae adnumeratur maxim.
Imperitia culpae adnumeratur
– incompetence is counted as a flaw! If a practitioner conducts a procedure
knowing that he lacks the essential ability, knowledge, or experience, he is
always negligent. In Dale v Hamilton[33]The plaintiff
suffered terrible burns when a physician used an X-ray device to detect a
problem. The Coolidge tube had been put too close to the patient, resulting in
the burns. The defect would have been detected by a qualified radiologist. The
radiologist was required to determine the appliance’s operational safety and
was not entitled to depend on the expert’s installation, according to the
court. The locality rule was set in Van Wyk v Lewis, viz. that the same degree
of care and skill practiced in a large city hospital could not be expected from
a practitioner working in a rural area. Van der Merwe and Olivier and Strauss
state that in view of modern developments no justification exists for retention
of the locality rule. Neethling et al.
submit that the nature of the
community where the practitioner works should be considered as should
opportunities to keep abreast with new developments. An error of clinical
judgment: the law does not require the doctor to be infallible in his conduct,
and an error of clinical judgment will not constitute negligence where the
proper standard of care has been followed.
The location rule was
established in the case of Van Wyk v. Lewis[34], which said
that a practitioner practicing in a rural region could not be expected to
exercise the same level of care and expertise as those employed in a big
metropolitan hospital. According to Van der Merwe, Olivier, and Strauss[35], there
is no longer any reason for retaining the location rule in light of
contemporary changes. Neethling et al. contend that the practitioner’s work
environment and opportunity to stay current on new advancements should both be
taken into account. A mistake of clinical judgement will not establish
negligence when the appropriate standard of care has been adhered to since the
law does not require the doctor to be impenetrable in his behavior.[36]
In Pringle v.
Administrator of Transvaal[37], it
was established that a standard of care that blurs the line between surgical
error and medical malpractice should not be used when applying a test for
medical negligence. A practitioner would often have a strong defense against
accusations of irresponsible behavior if he follows usual practice that is
widely acknowledged and accepted by the profession.
According to Claassen and
Verschoor1, innovation and experimentation bring about two competing interests:
those of the patient, who should not be subjected to abuse, and those of the
practitioner and society, whose interests are served by increased knowledge. According
to Neethling et al. 4, the level of care necessary is not that of the “average”
doctor, but rather that of the “reasonable” doctor. In legal proceedings,
proving carelessness depends on the balance of probability. The burden of proof
in civil lawsuits is on the plaintiff, who must show both carelessness and the
harm caused by the negligence. The burden of evidence in criminal prosecutions
is with the state, and proof must be established beyond a reasonable doubt. To
help the court determine the reasonable man standard, expert testimony is often
required.
Conclusion
The maxim “impertia culpae
adnumeratur” clearly brings into light the liability of the professionals
while rendering services. This maxim has been long in existence. Roman jurists
created this maxim to tackle the growing problems in professional services. It
was recognized as one of the most important parts of the labor law in the Roman
Empire because it binds the professionals for the services they were providing.
The Roman Empire controlled a large force of workers in addition to that there
were private professionals also. They were mostly acquitted for their mistakes
because of non-recognition of their liability towards their customers. This led
to the formation of imperitia culpae adnumeratur. Which means ignorance or lack
of skill is to be counted as negligence. The major feature about this maxim is
that it not only bounds the professional for a reasonable care towards the
plaintiff but also it enforces that this care and application of skill by the
professional is up to the level of what he has proclaimed it to be. Meaning the
skills should be objectively assessed as per the professional level of the
service provider. So higher the level of person, he has to ensure higher skills
and more care towards his clients. This maxim travelled from the Roman Empire
to the Dutch Empire and from there to even in whales (as its description can be
found in the legal history of whales) and right now it is one of the commonly
accepted doctrines for medical negligence in South African law. It can also be
assessed that thia maxim somewhat had a role to play in the formation of
concept of ‘duty of care’ in the common law of United Kingdoms. Both the
concepts prime facie appears to be intermingled.
Both ensure that professionals must take care of their clients and there
should be no ignorance or lack of skill towards them. But the detailed study
above has elaborated that the basic difference between both is that while the
maxim imperitia culpae adnumeratur ensures that the level of care and skill is
to be in par with the level of professionalism proclaimed by the service
provider. The concept of duty of care enumerates that the car and skills used
would be assessed on a reasonable standard. Meaning the standards should be
reasonable and commonly accepted in the general practitioners of that
profession. Thus, the standard of care does not fluctuate but assessed with the
current norms in the society. India almost follows the similar law of torts as
of United Kingdom thus the applicability of this maxim in India is also very
narrow. Furthermore, in the recent years this maxim has strongly developed
around the concept of medical negligence. There are numerous cases where
applicability of this maxim is visible. South Africa in particular has included
this maxim within their legal system.
Article Information
IMPERTIA CULPAE ADNUMERATUR: TRAVERSING THE LAW ON PROFESSIONAL NEGLIGENCE (By-Anupam Singh Sengar & Manik Tindwani)
Authors: Anupam Singh Sengar, Manik Tindwani
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/07/29
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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