§ 141 Objection Considered
By way of objection to the foregoing analysis it may be said: “It is not true that in all cases negligence amounts to carelessness in the sense of indifference. A drunken man is liable for negligence if he stumbles as he walks along the street, and breaks a shop window, but he may have been exceedingly anxious to walk in a straight line and to avoid any such accident. He may have been conscientiously using his best endeavours, but they will not serve to justify him on a charge of negligence. So an unskilful physician may devote to the treatment and cure of his patient an amount of anxious attention and strenuous endeavour, far in excess of that which one more skilful would consider necessary; yet if his treatment is wrong, he is guilty of negligence.”
The answer to this objection is that in these and all similar cases carelessness in the sense of indifference is really present, though it is remote instead of immediate. The drunken man may be anxious and careful now not to break other persons’ windows, but if he had been sufficiently anxious and careful on the point some time ago, he would have remained sober, and the accident would not have happened. So with the unskilful physician. It is a settled principle of law that want of skill or of professional competence amounts to negligence. Imperitia culpae adnumeratur.363 He who will exercise any trade or profession must bring to the exercise of it such a measure of skill and knowledge as will suffice for reasonable efficiency, and he who has less than this practises at his own risk. The ignorant physician who kills his patient, or the unskilful blacksmith who lames the horse shod by him, is legally responsible, not because he is ignorant or unskilful—for skill and knowledge may be beyond his reach—but because, being unskilful or ignorant, he ventures to undertake a business which calls for qualities which he does not possess. No man is bound in law to be a good surgeon or a capable attorney, but all men are bound not to act as surgeons or attorneys until and unless they are good and capable as such.
The unskilful physician, therefore, is liable not because he is now careless of the health of his patient, but because he was formerly careless in undertaking work calling for greater skill than he possessed. If he then knew that he had not the requisite skill, his carelessness is obvious. Possibly, however, he believed himself to be sufficiently qualified. In this case we must go one step further back in the search for that mental attitude of indifference which is the essential element in all cases of negligence. He was careless in forming his beliefs; he formed them without that anxious consideration which the law requires from those who form beliefs on which they act to the injury of others. A man may be called upon by the law to answer to-day for the carelessness with which he formed an opinion years ago.