theories of negligence

8/13/2019 Theories of Negligence

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Theories Of Negligence

Q what is negligence ? What are its different theories ? Discuss in detail. (2003)

(2003/) (2002) (200!) (200"/#) (200$/#)

Q What are su%&ecti'e and o%&ecti'e theories of negligence? (!$) (!3)

!. ntroduction*

Negligence in the breath of duty to take care. It is carelessness in a matter in which

carefulness is made obligatory by law. It essentially consists in the mental attitude of

under indifference with respect to one s conduct and its consequences whenever a

person is under a duty to take care, he is bound to take that amount of care which is

considered reasonable under the circumstances.

2. Definition Of Negligence*

(I) ccording !o "almond#

$Negligence is the state of mind of under indifference towards one s conduct and

its consequences.%

(II) ccording !o &iles#

$Negligence is the absence of such care as it was the duty of the defendant to

use.%

(III) ccording !o ustin#

$Negligence is the breach by omission of a positive duty.

(I') ccording !o lark#

$Negligence is the omission to take such care under the circumstances it is the

legal duty of a person to take it is in a no sense a positive idea and has nothing

to do with a state of mind.%

3. +inds of Negligence*

Negligence is of two kinds#

(i) dvertent Negligence

(ii) Inadvertent Negligence

(I) dvertent#

It is commonly called willful negligence or recklessness. In this case, the harm

done is foreseen as probable but in not willed. . g . rash driving on a road.


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(II) Inadvertent Negligence#

Inadvertent negligence can be called simple negligence. In this case, the harm

done is neither foreseen nor willed e. g. a drunkard is walking along the road

and he breaks a shop window as he knocks against the same.

(i) Negligence and Inadvertence#

ccording to some *urists, all negligence consists in inadvertence. n act is done

negligently when the done did not know that the act was wrong but could have

found out if he had tried to do so.

riticism by "almond#

"aimond raises two ob*ections against this view.

a. ll Negligence is Not Inadvertent#

ccording to slmound, all negligence is not inadvertent. ven if a thing isknown to be wrong, I may do the same with he hope that it will not result in e. g

. driving a fast car though a crowded street.

b. ll Inadvertence is Not Negligence#

ccording to "almond, all inadvertence in not Negligence. I can not negligent if

I take full care which can reasonably be e+pected under the circumstances.

". ,ul-a%le Negligence*

arelessness become culpable when law imposes a duty of being careful. &hile

measuring a degree of carelssness two things are taken into consideration and those

are the degree of the seriousness of the consequences possible and the e+tent to which

those consequences were probable.

(I) uty -f are#

It was thought at one time that there was not such thing in civil law as a legal

duty to take care and therefore as such legal duty to the plaintiff by the

defendant.

"almond s 'iew#

In general , we may say that whenever an act would be a civil wrong if done

intentionally it is also a civil wrong if done negligently. &hen there is a legal duty

not do a thing on purpose, there is commonly a legal duty to take care not to do it

accidentally. No general principle can be *aid down as to the e+istence of this

duty for it is a by brid compounded of an element of law and an element of fact.

onoghue vs "tevenson #


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acts#

manufacture of ginger beer sold to a retailer ginger been in bottle which

contained the decomposed remains of a dead snail that fact was not known to

the manufacture.

/eld#

It was held that the manufacture owed a duty to take care that bottle did not

contain any no+ious matter and he was liable if the duty was broken.

(II) "tandard -f are#

ccording to "almond ,nglish law recogni0es only one standard of care and

only one degree of negligence . when ever a person is under a duty to take care

at all, he is bound to take that amount of it which is considered reasonable under

the circumstances and the absence of which is culpable negligence.

(i) "tandard of are &hich 1ay 2ossibly dopt#

It is possible to adopt either of the two standards of care, want of which

amounts to negligence.

a. /ighest degree of care of which human nature is capable.

b. mount of care which would be reasonable in the circumstances of

the particular case

!he first standard is re*ected and the second standard is accepted in

actual practice. 3aw requires not what is possible but what isreasonable under the circumstances. !heoretically negligence is the

omitting of that which a reasonable man would do or the doing of that

which a reasonable man would not do.

(ii) actors etermining "tandard of are#

!he standard of care cannot be predetermined. It is a variable thing which

varies form case to case and time while determining the amount of care

necessary in any particular case, two factors must be taken into

consideration.

a. 1agnitude of risk to which other are e+isted by the act, and

b. !he amount of benefit to be derived form the act.

Illustration#


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If the driver of a car drives it at the speed of 45 miles an hour in the

city, he considered to be guilty of negligence as the danger of

accident in much greater than the benefit derived by the car driver.

6ut if a train is run at the speed of 75 miles an hour, it is not

considered to be negligence as the benefit en*oyed by the public on

account of high speed are much greater than the risk of accident.

$. Theories Of Negligence*

ollowing are the theories of negligence,

(I) ustin " !heory#

Negligence consist essentially in inadvertence. It consists in a failure to be alert

or vigilant. negligent wrongdoer is one who dose not know that his act is wrong

but who would have if had not been mentally indolent.

riticism#

"almond points out that there may be advertent or willful negligence as where a

person sees the conseques of his act and in spite of that recklessly dose it

without intending those consequence.

(II) /olnad s !heory#

ccording to /oland, negligence is of two kinds, gross negligence and simple

negligence.

riticism#

!hese distinctions are based on roman law and are not recogni0ed by nglish

law.

(III) "ub*ective !heory#

"ir *ohn salmond has propounded the sub*ective theory of negligence. ccording

to him, negligence is purely sub*ective. It relates to the state of mind. It is a

mental condition. Negligence consists in the mental attitude of under

indifference with respect to one s conduct and its consequences. !he essence

of negligence is not inadvertence which may or may not be due carelessness but

carelessness which may or may not result in inadvertence.

(I') -b*ective !heory#

ccording to this view, negligence is not a state of mind but a particular type of

conduct. It is a breach of the duty of taking care against the harmful results of

one s actions, and to refrain form unreasonably dangerous kinds of conduct.

!his theory finds the support form the fact that in the law of !orts, negligence


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consists in failure to take such care, which ordinarily prudent man would take in

circumstance.

ccording to lark and lindsell #

$ Negligence consists in and omission to take such care as under the

circumstances is it legal duty of a person to take.%

riticism#

"almond points out that negligent conduct differs form negligence negligent

conduct is a course of action which is the result of negligence. It is an ob*ective

fact which results form a state of mind.

(') 8econciliation -f !heories#

Neither the ob*ective nor the sub*ective theory is correct. Negligence is both

sub*ective. !hey mphasi0e different aspects of negligence. n contrasted with

wrongful intention the negligence is sub*ective. s contrasted with inevitable

accident, negligence is ob*ective.

9. ,onclusion*

!o conclude, I can say, that negligence is nothing short of e+treme carelessness.

arelessness e+cludes wrongful intention. thing which is intended cannot be attribute

to carelessness. Negligence does not necessarily consist in thoughtlessness or

inadvertence. It is true that it is the commonest form of negligence but is not the only

form.

theories of negligence

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