Theories of Negligence

There is controversy as to whether negligence is a state of mind or a course of conduct.  Thus, there are two theories of negligence – Subjective and Objective.

Subjective Theory of Negligence

According to Austin, want of advertence, which one’s duty would naturally suggest is the fundamental or radical idea in the conception of negligence.  Thus negligence results from inadvertence or failure to apply one’s mind to the nature and consequences of one’s wrongful act.  In this sense, the negligent act is the opposite of an intentional act.

Austin’s view has been criticized that negligence may be inadvertent or wilful. One may  cause harm, not necessarily by intending it but because of thoughtlessness towards the  consequences of the dangerous act or because of a foolish assumption that the evil consequences will not follow.  This is inadvertent negligence.  This is what Austin meant and is the commonest form of negligence. But there is another form of negligence where there is no thoughtlessness or inadvertence.  If a person drives a car at a greater speed in a crowded street, he may be fully conscious of the risk involved and the danger to which others are exposed, but yet if harm results to somebody it cannot be said that he intended it, he may not be guilty of murder but only negligent homicide.

According to Salmond, negligence is the mental attitude of undue indifference with respect to one’s conduct and its consequences.  A careless person is one who does not care.  Though negligence is not the something as thoughtlessness or inadvertence, it is basically an attitude of indifference.  As Salmond points out the essence of negligence is not inadvertence which may or may not be due to carelessness, but carelessness which may or may not result in advertence.

Acts are sometimes classified into intentional and negligent acts.  An intentional act is one whose consequences are foreseen and desired by the doer.  Not doing something intentionally is called forbearance.  So, forbearance is intentional negative act.  Omission, on the other hand, is not doing something without applying the mind to it.  Hence, omission is unintentional negative act, while forbearance is also a product of intention, omission is the outcome of negligence.  If intention is a state of mind, the absence of intention or negligence is also a state of mind.

The merit contained in the subjective theory is that in certain situations any conclusion as to whether a man had been negligent will depend partly on his state of mind.  In criminal law a sharp distinction is drawn between intentionally causing harm and negligently causing harm, and in deciding whether the accused is guilty of either, one must have regard to his knowledge, aims, motives and so on.  Cases of apparent negligence may, upon examination of the party’s state of mind, turn out to be cases of wrongful intention.  A trap door may be left unbolted in order that one’s enemy may fall through it and so die.  Poison may be left unlabelled, with intent that some one may drink it by mistake.

A ship’s captain may wilfully cast away his ship by the neglect of the ordinary rules of good seamanship.  A father who neglects to provide medicine for his sick child may be guilty of wilful murder, rather than a mere negligence. In none of these cases, can we distinguish between intentional  and negligent wrongdoing, except by looking into the mind of the offender and observing his subjective attitude towards his act and its consequences.  Externally and objectively, the two classes of offences 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.  The negligent wrongdoer does not desire the harmful consequences.  The wilful wrongdoer is liable because he desires to do the harm, the negligent wrongdoer may be liable because he does not sufficiently desire to avoid it.

Objective Theory of Negligence:

According to some jurists, negligence is not a state of mind but a particular kind of conduct. In this view, negligence is due to failure to take reasonable precautions.

According to Clark and Lindsell, negligence consists in the omission to take such care as under the circumstances it is the legal duty of a person to take.

According Pollock, negligence is the opposite of deligence and no one describes deligence as a state of mind.

According to objective theory, negligence is not a subjective but an objective fact.  It is not a particular state of mind or form of mens rea at all, but a particular kind of conduct.  Negligence is a breach of the duty of taking care.  To take care means take precautions against harmful results of one’s actions.  Negligence consists in pursuing a course of conduct that an ordinary prudent man would not.  To drive at night without light is negligence because carrying light is an act of a prudent man. To take care, therefore, is no more a mental attitude or state of mind.

This view (objective theory) receives strong support from the law of torts where it is clearly settled that negligence means a failure to come up to the objective standard of the conduct of a reasonable man.

Salmond criticized the objective theory on the following grounds:

i) Total identification of negligence with failure to take care is the product of incomplete analysis.

ii) Failure to take care need not always be due to negligence. Failure to take precautions may be accidental or wilful.

iii) By merely looking at the conduct of a man, it is not possible to assert whether the lack of care is negligent, intentional or accidental.

iv) One can identify of the negligent act only by looking into the mental attitue of the man that produced the conduct in question.

Reconciliation of Theory of  Negligence :

Glanville Williams attempts to reconcile both the theories by saying that the term negligence has two meanings and each of the two theories represents one of them.  Negligence may be contrasted with intention on the one hand and inevitable accident on the other.  As contrasted with intention, negligence is subjective ( a state of mind).  Poison may be left unlabelled with an intention that some one may drink it and die.  It is difficult to distinguish in this case whether the act is intentional or negligent unless we peep into the offender’s mind.  Leaving the poison like that may be due to accident.

As contrasted with inevitable accident, negligence is a particular type of conduct.  If the question is whether the defendant caused the harm without any fault on his part or by his unintentional fault, it can be answered only by looking into whether his conduct came up to the standard of a reasonable man.

Hence, it may be said that the subjective and objective theories operate in different fact situations and would be erroneous to postulate any intrinsic conflict between them.