Vicarious liability — Breach of contract — Damages for non-performances of contract — Contract Act.

 The plaintiff No. 1 is the husband of the original plaintiff No. 2 who suffered from cancer and was consequently admitted to the hospital of defendants being the Trustees of Bombay Hospital Trust. The defendant No. 1 was an Honorary Surgeon attached to Bombay Hospital (BH). The plaintiffs’ case is that the original plaintiff No. 2 suffered from cancer since July 1977. She was admitted to BH. The husband i.e., plaintiff No. 1 desired the services of the defendant No. 1. He was informed that the defendant No. 1 would separately charge his fees. The plaintiffs accepted and agreed to those terms. It is the case of the plaintiffs that it was agreed between the defendant No. 1 and the plaintiffs that the defendant No. 1 will himself operate upon the plaintiff No. 2.

 It is the plaintiffs’ case that despite the contract between the plaintiffs and the defendant No. 1, the defendant No. 1 failed and neglected to operate upon the plaintiff No. 2 and accordingly committed a breach of the contract by non-performance. The surgery of the original plaintiff No. 2 was wholly unsuccessful. It was realised upon her abdomen being opened that nothing further could be done. Her abdomen was stitched up. She was given treatment in the hospital thereafter. The plaintiffs’ case in tort upon medical negligence is essentially that the advise of the defendant No. 1 itself was erroneous and was given without any care or caution despite having been shown the reports of the doctors from the USA who had earlier treated the plaintiff No. 2. Upon the complete non-performance by the defendant No. 1 of performing surgery or treating the plaintiff No. 2 the plaintiffs claim that BH itself through its trustees were vicariously liable in tort for the negligence of the defendant No. 1.

The Court observed that the contract between the parties was absolutely clear as to the contracting parties, as to the performance of the date of the contract as also the specific operation to be performed. It is admitted that the contract was not performed by the defendant No. 1 as to why it was not performed, calls for the consideration of the aspect on damages for its breach.

The Court observed that the attitude of the defendant doctor shows how the patients are treated by doctors of such standing and how much the patient can expect of the doctor. It shows the standard of care and the quality of the personal service given by the doctor and the extent of service accepted by the patient under extreme constraint and hopelessness. It however does not alter the legal obligations and rights of the parties. It would at best require the Court to see how the surgeon, who contracted with the patient, at least remained available near her and at her service. Availability cannot include a direction without a look at the patient. The damages can be claimed for breach of the contract as well as for negligence in tort. Since the contract was voluntarily entered into and was breached, the plaintiffs would be entitled to damages upon such breach of contract by nonperformance or misperformance even if there be no negligence in tort.

The extent of damages for the breach of the contract of professional services agreed and failed to be rendered and for the consequent mental agony, distress and anguish would be analogous to the damages which are grantable for similar effects upon a tort. The Court also observed that the breach of the contract of a personal nature more so by a professional involves violations of human rights and is the most acute and profound in case of doctors. Their breach by non-performance would result also in fatality. It would result in considerable mental distress and may lead to other mental problems including depression arising from such distress and agony. Such damages cannot be computed upon the precise monetary loss alone. The Court granted interest @ 16% p.a. for the entire period from the date of the surgery of the original plaintiff till the date of the judgment and thereafter @ 6% p.a. till payment/realisation.