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) (ii) (I) dvertent Negligence Inadvertent Negligence 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.

(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 is known 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.

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,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 #

.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 is reasonable 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#

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.

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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

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.