408 Invention anp NeGurcEnce, (§ 189 § 140. Negligence. We have considered the first of the threc classes into which injuries are divisible, namely those which are intentional or wilful, and we have now to deal with the sccond, namely wrongs of negligonce, The term negligence has two uses, for it signifies some- times particular slate of mind, and at other times conduct resulting thorefrom. In the former or subjective sense, negli- gence is opposed fo wrongful intention, these being the two forms assumed by that mena rea which is a condition of penal responsibility, In tho latter or objective sense, it is opposed not to wrongful intention, but to intentional wrongdoing. A similar doublo signification is observable in other words, Cruelty, for example, means subjectively a certain disposition and objectively conduct resulting from it. The ambiguity can, scarcely lead to any confusion, for the two forms of nogligenc are necessarily coincident. Objectivo negligence is morely sub- jective negligence realised in conduct; and subjective negligence is of no account in the law, until and unless it is manifosted in act. We shall commonly use the term in tho subjective sonse, and shall speak objectively not of negligence, but of negligont conduct or negligent wrongdoing (y). Negligence is culpable carelessness, ‘“‘It is,” says Willes, J. (2), ‘‘ the absence of such care as it was the duty of the defendant to use.’’ Wht then is meant by careless- (a) Beg. v, Dudley, 14 Q. B. D, 278. The law as to compulsion and necessity if discussed in Stephen's History of the Criminal Law, vol. ii. ch. 18, and in an Article on Homicide by Necossity, in b, Q. B. I. 61, Sca algo the German Criminal Code, sect. 64, in which the jus necessitatis receives express resognition. {y) In Roman Jaw negligence is signified by the terms culpa and neglt- gentia, as contrasted with dolue or wrongful intention. Care, or the absence ot negtgentia, ig diligentia, The usc of the word dihgenes in this sense is obolete in’ modern English, thongh it is etill retained a8 on atchaism of Jegal diction. In ordinary ‘usage, diligence ie opposed to idleness, not ‘to carclosans jenoral Iron Sorew Colliery Coy., L, R. 10. P, at p. 612. (2) Gril§ 140) Intention anv NegricEnce. 409 noxs? It is cloar, in the first place, that it excludes wrongful intention. These ave two contrasted and mutually inconsistent montal attitudes of a person towards his acts and their conse- quences. No result which is duc to carelessness can have been also intended. Nothing which was intended can have been due to carelessness (a). It is to be observed, in the second place, that carclessness or negligence does not necessarily consist in thoughtlessness or inadvertence. This is doubtless the commonest form of it, but it is not the only form. If I do harm, not becuuse I intended it, but because 1 was thoughtless and did not advert to the dangerous nature of my act, or foolishly belicved that there was no danger, I am certainly guilty of negligence. But there is anothor form of nogligenco, in which there is no thoughtlessness or inadvertence whatever. If I drive furiously down a crowded street, I may be fully conscious of the serious risk to which I expose other persons, I may not intend to injure any of them, but I knowingly and intention- ally expose them to the danger. Yet if a fatal necident happens, I am liable, at the most, not for wilful, but for negligent homicido, When I consciously expose another to the risk of wrongful harin, but without any wish to harm him, and harm actually ensucs, it is inflicted not wilfully, since it was not desired, nor inadvortently, sinco it was foreseen as possible or even probable, but nevortheloss negligently. If, then, negligonce or carelessness is not to be identified with thoughtlossness or inadvertence, what is its essential nature? The correct answer seems to be that a careless person is a person who does not care. Tho essence of negligence is not inadvertence but indifferenae. Indifference is exccedingly apt to produce thoughtlessness or inadvertence; but it is not the samo thing, and may exist without it, as we havo seen from the example already given. Tf I am careless, that is to say, indifforent, as to the results of my conduct, I shall very probably fail to acquire adequate foresight and consciousness of them; but I may, on the contrary, make a very accurate (a) Ketilewell v. Walson, 91 Ch, D. at p. 706: ‘* Fraud imports design and Raposo negligence imports that you oto acting carelessly and without 7 oF,410 Invention avo Neaiicrnce, [§ 140 estimate of them, and yet remain equally indifferent with rospect to them, and, therefore equally negligent. Negligence, therefore, essentially consists in the mental attitude of undue indifference with respect to ono’s conduct and its consequences (b). This being 80, the distinction between intention and negli- gence becomes clear, The wilful wrongdoer desires the harmful consequences, and therefore does the act in order that they may ensues. The negligent wrongdoer is careless (if not wholly, yet unduly) whether they ensue or not, and therefore does the act notwithstanding the risk that they may ensue. The wilful wrongdoer is liable because he desires to do the harm; the negligent wrongdoer is linble because he does not sufficiontly desire to avoid it. He who will excuse himself on the ground that he meant no evil is still open to the reply: Perhaps you did not, but at all events you might have avoided it, if you had sufficiently desired so to do; and you aro hold liablo not because you desired the mischief, but because you were careless and indifferent whether it ensued or not. Negligence, as so definod, is rightly treated as a form of mene rea, standing side by side with wrongful intontion as a formal ground of responsibility. For these are tho two mental abtitudes which alone justify the discipline of penel justice. The law may rightly punish wilful wrongdoing, because, since the wrongdoer desired the outcome of his act, punishment will supply him for the future with a good reason for desiring the opposite, So, also, the law may justly punish negligent wrong- doing, for since the wrongdoer is careless as to the interests of others, punishment will cure this defect by making those interests for the future coincident with his own. In no other case than these two can punishment bo effective, and therefore jin no other case is it justifiable. So far as abstract theory is (Aa excellent analysis of the conception of m ence is to be found in Merkel's Lehrbuch deutschen Strafrechts, gies 82 and 88, See eapecially 9 sect. $2 (1): '‘ Negligent wrongdoing is that which is not inten- ‘but results from culpable inadvortence (Unanfmerkeamkeit) or in- Saterencs ena tee ‘The mental -sttitude of tho wrongdoer consists nob in any desire to do harm, but in the, absence of a t desire to avoid-it. The law is not satisfled with the mere absence of any intention J infict injury, but demands a positive direction of the will towards the avoid Fr§ 140] Invention anp Neeuieence, 41 concerned, every man is exempt from penal responsibility who ean truly say: The harm which I have done is not the outcome of any desire of mine to do it; neither does it proceed from any carelessness or indifference as to my acta and the results of them; I did not mean it, neither could I have avoided it by care. ‘Tt follows from the foregoing analysis thet negligence is of two kinds, according as it is or is not accompanied by inad- vertence. Advertent negligence is commonly termed wilful negligence or recklessness. Inadvertent negligence may be distinguished as simple. In the former the harm done is fore- seen as possible or probable, but it is not willed. In the labier it is neither foreseen nor willed. In each case carelessness, that is to say, indifference as to consequences, is present; but in the former case this indifference does not, while in the latter it does prevent these consequences from being foreseen. The physicion who treats a patient improperly through ignorance or forgetfulness is guilty of simple or inadvertent negligence; but if he does the same in order to save himself wwouble, or by way of a scientific experiment, with full recogni- tion of the dangors so incurred, his negligence is wilful (c). This distinction is of little practical importance, but demands recognition here, partly because of the false opinion thet all negligence is inadvertent, and partly because of the puzzling nature of the expression wilful negligence. In view of the fundamental opposition between intention and negli- genes, this expression locks at first sight self-contradictory, but it is not so. He who does a dangerous act, well knowing that he is exposing others to a serious risk of injury, and thereby causes a fatal accident, is guilty of negligent, not of wilful homicide. But the negligence is wilful, though the homicide is not. He is not merely negligent, but consciously, wilfully, and intentionally negligent; for he knows at the time the true nature of the act which he is doing. It is intentional with respect to the fact that his mental attitude towards the consequences is one of culpable indifference. (0) ‘The distinction between these two forms of negligence is well explained by Merkel, Strafrecht, eect. 88 (8). 7412 Invention axp Nu@iicEnce, [$141 § 444. Objection Considered. By way of objection to ihe foregoing analysis it, may be said: ‘It is not true that in all cases negligenco amounts to carelessness in the sense of indifference. A drunken man is liable for negligence if he stumbles as he walks along tho street, and breaks a shop window, but he may have been exceedingly anxious to walk in o straight line and to avoid any such accident. He may havo heen conscientiously using his best cndeavours, but they will not serve to justify him on a charge of negligence. §o an unskilled physician may devote 4o tho 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 negligenco.”” ‘The answer to this objection is that in theso and all similar cases carelessness in the sense of indifferonce is really present though it is romote instead of immediate, Tho drunken man may be anxious and careful now not to break other porsons’ windows, but if he had boen sufficiently anxious and careful on the point some time ago, he would have remained sobo, and the accident would not havo happencd. So with tho unskilful physician. Jt is a settled principle of law that want] of skill or of professional competence amounts to scgligeoao 4 Imperitia culpae adnumeratur (d). He who will excrciso any trade or profession must bring to the exorcise of ib such a measure of skill and Imowledgo us will suffice for reasonable efficiency, and he who has less than this practises at his own visk. The ignorant physician who kills his pationt, or the unskilful blacksmith who lames the horse shod by him, is legally responsible, not because he is ignorant or unskilful— for skil] and knowledge may be beyond his reach—but because, being unskilful or ignorant, he ventures 1o undertake 9 business which calls for qualities which he doos 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 atlorneys until and unless they are good and capable as such. (d) Inst, Tust, 4. 8, 7.§ 141] Intention ann NequicEnce. 413 The unskilful physician, thorefore, is liable not because he is now careless of the health of his patient, bub because he waa formerly carcloss in undertaking work calling for greater skill than he posscased. If he then knew that he had not the requisile 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 Jaw 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-dey for the carelessness with which he fomned an opinion years ago. § 452. The Standard of Care. Carclessness is not culpable, or a growmd of legal liability, save in those cases in which ihe law has imposed a duty of earcfulness, Jn all other cuses complete indifference as to tho interests of others is allowable. No general principle can be laid down, however, with regard to the existence of this duty, for this is a matter pertaining to the details of the concrete legal system, and not 1o abstract theory. Carelessness is Jawful or walawful, as the law sees fit to provide. In the criminal law liabihty for negligence is quite exceptional; Speaking genovally, crimes gte.wiliul wrongs, the alternative form of mene rea being deemed an insufficient ground for the rigour of criminal justice. This, however, ia not invariably the case, nogligent homicide, for example, being a criminal offence. In the ciyil law, on the other hand, no auch dis- tinction is commonly drawn between the two forms of mens rea. 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. When there is a legal duty not to do a thing on purpose, there is commonly a legal duty to take care not ta do it accidentally. To this rule, however, there nre certain oxceptions—instancss in which wrongful intent is the necessary basis even of civil liability. In these cases a personi 414 Intention avp NaGlicEncn, [§ 142 is civilly responsible for doing harm wilfully, but is not bound to take any care not to do it, He must not, for oxample, deceive another by any wilful falschood, but unless thero is some special ground of obligation in the case, he is nob answer. able for false statements which he honestly belioves to bo true, however negligent he may be in making them (4). Other instances of the same sors are based upon the express or implied agreement or understanding of the persons concerned. Thus the gratuitous lender of a chattel is bound to disclose any dangerous defects which he actually knows of, but is not bound 0 take any care whatever to see that it is safe, or to discover and disclose defaulis of which he is ignorant. For he who borrows a thing gratuitously agrees impliedly to take it as it is, and to run all risks. But he who hires a thing for moncy is entitled to the exercise of due care for his safety on the part of the owner (f). Oarelessness may exist in any degree, and in this respect it differs from the other form of inens rea. Intention either exists or it does not; there can be no question of the degree in which it is present. The degreo of carelossnoss varies directly ‘with the risk to which other persons are exposed by the act in question. He is careless, who, without intending evil, nevertheless exposes others to the danger of it, and the groater the danger the greater the carclossness. Tho risk depends, in its turn, on two things: first, the magnitude of the threatened evil, and second, the probability of it. The greater the evil is, and the nearer it is, the greater is the indifference or care- lessness of him who creates the danger. Tnasmuch, therefore, as carelessness varies in dogres, it is necessary to know what degree of it is requisite to constitute culpable negligence What mensure of care does the law demand? What amount of anxious consideration for the interests of others is a legal duty, and within whet limits is indifference lawful? We have first to notice a possible standard of care which (0) Derry v. Peek, 14 A. C. 887; Le Lievre v. Gould, (1808)1Q. B. 491. ) Macatthy v. Young,’ HE. & Ne 0y Coughin ¢! Gilson, Bad) tL Q. B. 145, Similarly op atbitrator 1g liable for freud, but not for negligence or want of skill, Tharsis Sulphur ond Copper Co. v. Loftus, 1. B. 8.6. P. 1.§ 142] Incention anp NecuGencn, 415 the law might havo adopted but has not. It does not demand the highest degree of care of which human nature is capable Tam not Hable for harm ignorantly done by me, merely because by somo conceivable exercise of prudential foresight I might have anticipated the evont and so avoided it. Nor am I liable because, knowing the possibility of harm, I fail to take every possible precaution against it. ‘The law demands not that which is possible, but that which is reasonable in view of the magnitude of the risk Were men to act on any other principle than this, excess of caution would paralyse the business of the world. The law, therefore, allows overy man to expose his fellows to a cortain measure of risk, and to do so even with full knowledge If an explosion occurs in my powder mill, I am not liable for negligence, even though I established and carried on the industry with full knowledge of its dangerous character. This is a degree of indifference to the safety of other men’s livos and proporty which the law deems permis- sible because not excessive Inasmuch as the carrying of fire- arms and the driving of horses are known to be the occasions of frequent harm, extreme care and the most scrupulous anxiety as to the interests of others would prompt a man to abstain from ‘those dangerous forms of activity Yet it is expedient in the public interest that those activities should go on, and therefore that mon should be exposed to the incidental risks of them. Consequently the law does not insist on any standard of care which would include them within the limits of culpable negligence It is for the law to draw the line as best it can, so that while prohibiting unreasonable careless- ness, it does not at the same time demand unreasonable care. On the other hand it is not sufficient that I have acted in good faith to the best of my judgment and belief, and have used as much care as I myself believed to be required of mo in the circumstances of the case The question in every case is not whethor I honestly thought my conduct sufficiently careful, but whether in fact it attained the standard of due care established by law. What standard then does the law actually adopt? It demands the amount of care which is reasonable in the circum-416 Intention anp Nuqiiarncn, [§ 142 stances of the particular case (g). This obligation to uso reasonable care is very commonly oxpressed by reference to the conduct of a ‘reasonable inun”’ or of an ‘* ordinarily prudent man,” meaning thereby a reasonably prudent man. “ Nogligence,” it has been said (h), ‘is the omitting to do something that a reasonable man would do, or the doing some- thing which a reasonable man would not do.” ‘‘ We ought,”” it has been said (i), “to adhere to the rule which requires in all cases a regard to caution such as a man of ordinary prudence would observe. . . . The care taken by a prudent mean has always been the rule Jaid down.” What amounts 1o reasonable care deponds entirely on the circumstances of the particular case as Imown to the person whose conduct is the subject of inquiry. Whether in those circumstances, as so known to him, he used due care—whether he acted as a reasonably prudent man—is in genoral » more question of fact as fo which no logal rules can be laid down. Ib would secm clear, however, that for the proper dotormina- tion of this question of fact there are two chief imatiers for consideration. The first is the magnitude of the risk 40 which cther persons ue exposed, while the second is the importance of the object to be attained by the dangerous form of activity. The reasonableness of any conduct will depend upon the pro- portion between these two elements, To expose others 10 danger for a disproportionate object is unreasonable, whereas an equal risk for a better cause may lawfully be run without negligence. By driving trains at the rate of fifty miles an hour, railway companies have caused many fatal accidents which could quite easily have been avoided by reducing the speed to ten miles, but this additional safcly would be attained at too great a cost of public convenience, and therefore in noglecting this precaution the companies do not fall below the standard of reasonable cure and are not guilty of negligence (I). (g) Ford v. L, & 8, W. Railway Co., (1862) 2B, & F. 780. (h) Blyth ¥ Birmingham Water Works Co., (1868) 95 L. J. Bx. p. 918. {) Vaughan %. Menlove, (1881) 8 Bing. N. 0. p. 476. i) Ford ¥. L. & 8. W. Railway Co., (B63) 21%, & B. 700,§ 143] Invention and NEGLIGENCE. 417 § 148. Degrees of Negligence, Wo have said that English Inw recognises only one standard of cere and therefore only one degree of negligence. When- ever a person is under a duty to take any care at all, he is bound to take that amount of it which is deemed reasonable under the circumstances; and the absence of this care’ is culpable negligence. Although this is probably a correct state- ment of English law, attempts have been made to establish two or even three distinct standards of care and degrees of negligence. Some authorities, for example, distinguish between gross negligence (culpa lata) and slight negligence (culpa levie), holding that a person is sometimes liable for the former only, and at other times even for the latter. In some cases we find even o threefold distinction maintained, negligence being either gross, ordinary, or slight (1). These distinctions are based partly upon Romen law, and partly upon a mis- understanding of it, and notwithstanding some judicial dicta to the contrary we may say with some confidence that no such doctrine is nown to the law of England (m). The distinctions so drawn are hopolessly indetcrminate and impracticable On what principle are we to draw tho line between gross negligence and slight? How can we thus elevate a distinction of degree into onc of kind? Even were it possible to establish two or more standards, there seems no reason of justice or ® So, for exe example, Smith's Leading Cases, I. 298, 10th ed. (Notes to 3 ¥. oeteey ice ‘Tigtah v. Dibdin, 9 Q. B. at p. O61, per Denmon, OT. "Tt may well be doubted whether between, gross negligence and PS Sees ible distinction exists." Wilson v. Brott, 11M, EW. at per Rolfe, + ‘I said I could sec no difference between jligence gence, i thet at -wes tho same thing with the addition of » vitu- forebive epither ‘¥v. General Iron Sorew Colliery Co., L. BR. 1.0. P, at p. 612, per Wiles +°No information hea been given us os to the meaning fo be atlached to gross ogligence in tus cps, and I quite agree Tithe dlotuta of Lord Orenworth in Win v. Brett thet gross negligence is ordinary negligence with a vituperative epithet, a view held by the Exchequer Chamber in Beal-v. South Devon By, 00,” Doorman ¥ Tonleing, 2 Ad. & Bl. at p. 985, per Denman, tis Fought and ab think it) impossible for iadge fo tako upon "inact fo any wether gence is Pollock's Torts, p, 482, th of. Biret’s Founda. fons of Gegel Lin Linbity, Tp a8. Bes, however, for @ full discussion of the matter, and an expression ofthe conttary opinion, Reven on Negligence, Book I, 8.3 27418 Intention ann NuqureEncs. [$ 148 expediency for doing 80. The single standard of English law is sufficient for all cases, Why should any man be required to show more care than is reasonable under the circumstances, or excused if he shows less? In connection with this alleged distinction between gross and slight negligence it is necessary to consider the celebrated doctrine of Roman law to the effect that the former (culpa lata) is equivalent to wrongful intention (dolus)—a principle which recaives occasional expression and recognition in English lew also. Magna oulpa dolus est (n), said the Romans. In its literal interpretation, indeed, this is untrue, for we have already seen that the two forms of mena rea are wholly incon- sistent with each other, and that no degree of carelessness can amount to design or purpose. Yet the proposition, though “inscourately expressed, has a true signification. Although geal negligence, however gross, cannot amount to intention, alleged negligence may. Alleged negligence which, if real, would be exceedingly gross, is probably not negligence at all, but wrongful purpose. Its grossness raises a presumption against its reality. For we have seen that carelessness is measured by the magnitude and imminence of the threatened mischief. Now the greater and more imminent the mischief, the more probable is it that it is intended. Gonuine indiffer- ence and carelessness is very unusual and unlikely in extreme eases. Men are often enough indifferent os to remote or unimportant dangers to which they expose others, but serious risks ave commonly avoided by care unless the mischief is desired and intended. The probability of @ result tends to| prove intention and therefore to disprove negligence. If a new-born child is left to die from want of medical attention or nursing, is may be that its death is due to negligence only, but ib is more probable that it is due to wrongful purpose and malice aforethought. He who strikes another on the head with an iron bar may have meant only to wound or stun, and not to kill him, but the probabilities are the other way (0). (o) Ta Le ‘Licore ', Gowk, 1Q. B, at p. 600, it said Janice Bowen si Pe ae TS a§ 143) Invention anp Neericence. 419 In certain cases, as has already been indicated in dealing with the nature of intention, the presumption of fact that a person intends the probable consequences of his aclions has hardened into a presumption of law and become itrebuttable. In those cases that which is negligence in fach is deemed wrongful intent in law. It is constructive, though not actual intent. The law of homicide supplies us with on illustration. Murder is wilful homicide, and mansleughter is negligent homicide, but the boundary line as drawn by the law is not fully coincident with that which exists in fact. Much that is merely negligent in fact is treated os wilful homicide in law. An intent to cause grievous bodily harm is imputed as an intent to kill, if death ensues, and an act done with! knowledge that it will probably cause death is in law an act done with intent to cause it. The justification of such con- clusive presumptions of intent is twofold. In the first place, as already indicated, very gross negligence is probably in truth not negligence at all, but wrongful purpose; and in the second place, even if it is truly negligence, yet by reason of its gross- ness it is as bad as intent, in point of moral deserts, and therefore may justly be ‘treated and punished as if ib were intent, The law, accordingly, will sometimes say to & defendant: ‘‘ Perhaps, as you allege, you were merely neg- ligent and had no actual wrongful purpose; nevertheless you will be dealt with just as if you had, and it will be conclusively presumed against you that your act was wilful. For your deserts are no better than if you had in truth intended the mischief which you have so recklessly caused. Moreover it is exceedingly probable, notwithstanding your disclaimer, that you did indeed intend it; therefore no endeavour will be made on your behalf to discover whether you did or not."” haye pointed out to them that gross negligence might amount to evidence of fraud, if i were so gross as to be incompatible with the idea of honesty, but that even gross nojligenco, in the absence of dishonesty, did not of itself amount to fraud.” Titeraily read, this implies that, jh gross negligence cannat be fraud, it may be evidence of it, but this of course ix impossible. If two thi ara inconsistent with each other, one of them cannot be evidence of the other. ‘The tma meaning is thet alleged or admitted negligence may be so gross as to be a 1d for the inference that it is in reality frand and not negligence at see also Kettlowell v. Watson, 21 Ch. D. at p. 706, per Fry, J.420 Invention anp NEGLIGENCE. [§ 144 § 144. Other Theories of Negligence. The analysis of the concoption of negligence is a mattor of some considerable difficulty, and it is advisable to take account of certain theories which differ more or less seriously from that which has hore been accepted by us. It is held by some, that negligence consists essentially in inadvertence. It consists, that is to say, in failure to be alert, circumspoct, or vigilant, whereby the true nature, cir- cumstances, and consequences of a man’s acts are prevented from being present in his consciousness. The wilful wrong- doer is he who knows that his act is wrong: the negligent wrongdoer is he who does not know it, but would have known it, were it not for his mental indolence (p). This explanation contains an important element of the truth, but it is inadequate. For in the first place, as has been already pointed out, all negligence is not inadvertent. There is such a thing as wilful or advertent negligonce, in which the wrongdoer knows perfectly well the irue nature, circtnstances, and probable consequences of his act. He foresees those con- sequences, and yet does not intend them, and thoreforo cannot be charged with wilful wrongdoing in respect of them. His mental attitude with regard to them is nob intention, but a genuine form of nogligence, of which the thoory of inadvertence ean give no explanation. In the second place, all inadvertence is not negligence. A failure to appreciate the nature of one’s act, and 1o forosee its consequences, is not in itself culpable. It is no ground of responsibility, unless it is due to carelessness in the sense of undue indifference. He who is ignorant or forgetful, notwith- standing a genuine desire to attain knowledge or remembrance, is not nogligent. The signalman who sleeps at his post is negligent, not because he falls asleep, bub because he is not sufficiently anxious io remain awake. If his sleep is the unavoidable result of illness or excessive labour, he is free from blame. The essence of negligence, therefore, is not ) Austin, Totus 5 Bukmeyer, 8 sect, 17; - (p) al Liability, a eyer, Strafrecht, Clerk, Analysis§ 144] Invention arp Nagiieence. 421 inadvertenco—which may or may not be due to carelessness ——but carclessness—which may or may not result in inadvertence, Tt may be suggested in defence of the theory of inadvertence that there are in reality three forms of the mens rea, and not two only: namely, (1) intention, when tho consequences are foreseen and intended, (2) recklessness, when they are foreseen but not intended, and (8) negligence, when they are neither foreseen nor intended. The law, however, rightly classes the second and third of these together under the head of negli- genco, for they are identical in their essential nature, each of them being blameworthy only so far as it is the outcome of earelossness. We have now to consider another explanation which may be termed the objective thoory of negligence. It is held by some that negligence is not a subjective, but an objective fact. It is not a particular state of mind or form of the mens rea at all, but o particular kind of conduct. It is a breach of the duty of taking care, and 10 take care means to take precau- tions against the harmful rosulis of one’s actions, and to refrain from unroasonably dangerous kinds of conduct (g). To drive at night without lights is negligonce, because to carry lights is a precaution taken by all reasonable and prudont men for the avoidance of accidents. To take care, therefore, is }n0 more © mental attitude or state of mind than to take cold is. This, howevor, is not a correct analysis. Carelessness may result in a failure to take necessary precautions, or to refrain from dangerous activities, but it is not the same thing, just as it may result in inadvertence but is not the same thing. The neglect of needful precautions or the doing of unreasonably dangerous acts is not necessarily wrongful at all, for is may be due to inevitable mistake or accident. And on the other hand, even when it is wrongful, it may be wilful instead of negligent. A trap door mey be left unbolted, in order that one’s enemy may fall through it and so die. (q) Clerk sma Tandsell, ‘Torts, p. 498, 6th od.: Nogligence is the omussion to take Cea care a6 under be eamtanc x 18 aes a person to take, in no sange postive ides, and has nothing to Sha state of mind.” Gj. Pollock, Touts, pp. 454463, 10H422 Intention ann NuGuteEncr. [§ 144 Poison may be left unlabelled, with intont that some ono may drink it by mistake A ship captain may wilfully cast away his ship by the neglect of the ordinary rules of good sesmanship. A father who neglecis to provide medicino for his sick child may be guilty of wilful murder, rathor than of mere nogligence. In none of these cases, nor indeed in any others, can we distinguish between intentional and negligent wrongdoing, save 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. Negligence is tho opposite of wrongful intention, and since the latter is a subjective fact the former must be such also.