Theories of Negligence

There are two rival theories of the meaning of the term negligence. According to the one, negligence is a state of mind (subjective theory); according to the other, it is merely a type of conduct (objective theory).

(1)       Subjective theory – It is given by Salmond. His view is that negligence is culpable carelessness. Although negligence is not the same as thoughtlessness or inadvertence, it is nevertheless essentially an attitude of indifference. Negligence essentially consists of the mental attitude of undue indifference regarding one’s conduct and its consequences. A person is made liable on the ground of negligence because he does not sufficiently desire to avoid a particular consequence – harm. He is careless about the consequence and does the action notwithstanding the risk that may ensue. Winfield, an advocate of this theory, says that ‘as a mental element in tortious liability, negligence usually signifies total or partial inadvertence of the defendant to his conduct and for its consequences’.

(2)       Objective theory – It is given by Pollock. His view is that negligence is an objective fact. It is not a particular state of mind or form of the mens rea but a particular kind of conduct. Negligence is a ‘breach of duty to take care, and to care means to take precautions against the harmful results of one’s actions and to refrain from unreasonably dangerous kinds of conduct. To drive at night without lights is negligence because to carry lights is a precaution taken by all reasonable and prudent men for the avoidance of accidents. Pollock says that ‘negligence is the contrary of diligence, and no one describes diligence as a state of mind’. So it is never a mental state. This view obtains strong support from the law of tort, where it is clearly settled that negligence means a failure to achieve the objective standard of the reasonable man. If the defendant has failed to achieve this standard it is no defense for him to show that he was anxious to avoid harming and took the utmost care of which he was capable. The same seems to hold good in criminal law.

Reconciliation of the two views

Negligence is sometimes used in one sense (subjective) and sometimes it is used in the other sense (objective) and, therefore, its meaning depends upon the context in which it is used. When negligence is contrasted with intention, it is used in the subjective sense. As wrongful intention is a state of mind, negligence is also a state of mind. Cases of negligence, on examination of the defendant’s mind, turn out to be cases of wrongful intention. If a father neglects to provide food to his infant child and if the child dies, the father may be guilty of wilful murder rather than mere negligence. In these cases, one can’t distinguish between wrongful intention and negligence without looking into the mind of the wrongdoer and observing his mental or subjective attitude towards his act and its consequences. If one tries to judge them objectively, the two classes of offenses are indistinguishable.

The subjective theory then has the merit of making clear the distinction between intention and negligence. The wilful wrongdoer desires the harmful consequences and therefore does the act so that they may ensue. The negligent wrongdoer does not desire the harmful consequences, but in many cases is careless whether they ensue or not, and therefore, does the act notwithstanding the risk that may ensue. The wilful wrongdoer is liable because he desires to harm; the negligent wrongdoer may be liable because he does not sufficiently desire to avoid it.

But to identify negligence with any one state of mind is confusion and an oversimplification. When negligence is contrasted with an inevitable accident it means a particular kind of conduct. In cases where there is no question of wrongful intention but the point to be determined is as to whether the wrongdoer caused the harm without any fault on his part, or by his unintentional fault, it is decided on the basis as to whether his conduct conformed to the standard of a reasonable man. He is liable only when he has not taken the care which a reasonable man would have taken. In such cases the state of mind of the wrongdoer is irrelevant and everything is judged objectively.

Meaning and Definition of Negligence

As noted above, negligence has two meanings in law of torts:

(1) Negligence as a state of mind- Negligence is a mode of committing certain torts, e.g. negligently or carelessly committing trespass, nuisance or defamation. This is the subjective meaning of negligence advocated by Austin, Salmond, and Winfield. In the words of Salmond: Negligence essentially consists in mental attitude of undue indifference concerning one’s conduct and its consequences.

The negligence is defined as ‘the absence of such care as it was the duty of the defendant to use’ [Gill v General Iron Screw Colliery Co. (1886) LR 1 CP 612],

(2) Negligence as a type of conduct- Negligence is a conduct, not a state of mind- conduct, which involves the risk of causing damage. This is the objective meaning of negligence, which treats negligence as a separate or specific tort.

According to Dr. John G. Fleming, “Negligence is conduct that fails to conform to the standards required by law for safeguarding others (actionable negligence) or oneself (contributory negligence) against unreasonable risk of injury

Essentials of Negligence

Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care or skill, by which neglect the plaintiff has suffered injury, to his person or property [Heaven v Pender (1883) 11 Q.B.D. 503]. The tort of negligence is a tort which can be committed concerning both, person and property.

According to Winfield, “negligence as a tort is a breach of a legal duty to take care which results in damage, undesired by the defendant to the plaintiff’. In an action for negligence, the plaintiff has to prove the following essentials:

(1)       That the defendant owed duty of care to the plaintiff.

(2)       The defendant made a breach of the duty i.e. he failed to exercise due care and skill.

(3)       Plaintiff suffered damage as a consequence thereof.

(1) Duty of Care to the Plaintiff

An action for negligence proceeds upon the idea of an obligation or duty on the part of the defendant to use care, a breach whereof results in the plaintiff’s injury. It is not necessary that the duty neglected should have arisen out of a contract between the plaintiff and the defendant. However, the duty may arise by a statute or otherwise. Thus, the idea of negligence and duty are strictly correlative, and there is no such thing as negligence in the abstract; negligence is simply neglect of some care which one is bound by law to exercise towards another. Austin defines negligence thus: “In case of negligence, a party performs not an act to which he is obliged; he breaks a positive duty.”

For example, if a man is driving on a barren plain, and no other person is near him, he is at liberty to drive as fast and as recklessly as he pleases. But if he sees another carriage coming near to him, immediately a duty arises not to drive in such a way as is likely to cause an injury to that other carriage.

(i)        Legal Duty

‘Duty of care’ means a legal duty rather than mere moral, religious or social duty. In the absence of such legal duty, negligence in the popular sense has no legal consequences. It is not sufficient to show that the defendant was careless; the plaintiff has to establish that the defendant owed to the plaintiff a specific legal duty to take care. It depends on each case whether a duty exists.

The duty of care is crucial in understanding the nature and scope of tort of negligence. Negligence does not entail liability unless the law exacts a duty in the given circumstances to observe care. Duty is an obligation recognized by law to avoid conduct fraught with the unreasonable risk of damage to others. The question of whether a duty exists in a particular situation involves determination of law. How much of the damage to be compensated by the defendant should be attributed to his wilful conduct and how much to his wilful negligence or careless conduct or remissness in performance of duty, are all relevant facts to be considered in a given act or omission in adjudging ‘duty of care’ [Rajkot Municipal Corpn. v Manjulben Jayantilal Nakum (1997) 9 SCC 552].

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