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Negligence and its theories

20 March 2024 19:48

Negligence, another form of mens rea, entails culpable carelessness or indifference towards the
consequences of one's actions. It occurs when an individual fails to exercise the level of care that a
reasonable person would under similar circumstances. It is characterized by a lack of concern for the
potential harm caused by one's actions.
According to SALMOND negligence is “the state of mind of undue indifference towards one’s conduct
and its consequences”
The concept of negligence encompasses both subjective and objective aspects. Subjective negligence
pertains to the mental state of the individual, while objective negligence refers to the conduct resulting
from this mental state. In the eyes of the law, negligence may be treated as a form of mens rea,
alongside wrongful intention, as a basis for criminal responsibility.
Negligence is nothing short of extreme carelessness. Carelessness excludes wrongful intention. A thing
which is intended cannot be attributed as carelessness. Carelessness or negligence does not necessarily
consist in thoughtlessness or inadvertence.

Theories of Negligence

There are two theories of negligence. One theory was propounded by SALMOND. According to this
theory, negligence is a state of mind - mental attitude. This theory is called the subjective theory of
negligence. The other theory has been given by Sir FREDERICK POLLOCK. According to him negligence is
a type of conduct. This is called the objective theory of negligence.

1. Subjective theory–
a. Definition of Negligence: According to the subjective theory, negligence is perceived as a state of
mind characterized by culpable carelessness or undue indifference towards one's conduct and its
consequences.
b. Salmond's Perspective: Salmond, a proponent of the subjective theory, asserts that negligence
essentially involves a mental attitude of indifference. It is not synonymous with thoughtlessness or
inadvertence but rather signifies a lack of concern about the potential consequences of one's
actions.
c. Basis of Liability: Under the subjective theory, a person is held liable for negligence because they
fail to sufficiently desire to avoid a foreseeable harm. Despite being aware of the risks, the
individual acts carelessly, disregarding the potential consequences.
d. Winfield's View: Winfield supports the subjective theory and defines negligence as the total or
partial inadvertence of the defendant towards their conduct and its consequences. This aligns with
the notion that negligence stems from a lack of awareness or concern rather than intentional
wrongdoing.
e. Austin's Perspective: Austin elaborates on the subjective theory by emphasizing the role of want
of advertence, or lack of attention to one's duty, as the fundamental aspect of negligence. He
views negligence as a state of mind where the individual fails to recognize the wrongful nature of
their actions due to indolence and inadvertence.
f. Distinction from Heedlessness, Rashness, and Recklessness: Austin distinguishes negligence from
heedlessness, rashness, and recklessness. Negligence involves inadvertently omitting an act and
breaching a positive duty, while heedlessness entails a lack of consideration for potential mischief.
Rashness entails foreseeing consequences but erroneously believing they will not occur, while
recklessness involves foreseeing consequences but disregarding them entirely.
g. Salmond's Critique: Salmond objects to Austin's sub-classification of negligence, arguing that all
these categories fall under the common law definition of negligence. Salmond maintains that the
essence of negligence lies in carelessness, which may or may not result in inadvertence. He
contends that negligence can also be deliberate or willful, challenging Austin's perspective on the
nature of negligence.

Objective theory:

a. Definition of Negligence: According to the objective theory, negligence is not a condition of mind
but a specific type of conduct. It is defined as the breach of duty to take care, which a reasonable
person under similar circumstances would have exercised.
b. Support by Frederick Pollock: Frederick Pollock supports the objective theory of negligence,
emphasizing that negligence is contrary to diligence and is not described as a state of mind.
Instead, it is viewed as an objective fact and a breach of the duty to exercise reasonable care.
c. Objective Approach to Conduct: The tort of negligence adopts an objective approach to
evaluating conduct and its consequences. Negligence is assessed based on whether the individual
failed to meet the standard of care expected of a reasonable person in similar circumstances.
d. Contrast with Subjective Theory: Unlike the subjective theory, which focuses on the mental
attitude of the individual, the objective theory posits that negligence is determined by the
standard of conduct. It is not considered a form of mens rea but rather adherence to or breach of
a particular standard of behavior.
e. Breach of Duty to Take Care: Negligence involves the failure to take precautions against harmful
results and refraining from unreasonably dangerous actions. For example, driving at night without

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4/5/24, 10:07 AM OneNote
lights is negligent because it disregards the standard precaution adopted by prudent individuals.
f. Objective Standard of Conduct: In assessing negligence, the focus is on the standard of conduct
expected of a reasonable person in similar circumstances. Whether an individual is negligent is
determined objectively, without delving into their state of mind.
g. Application in Tort and Criminal Law: The objective theory of negligence is primarily applied in
tort law, where negligence is defined by the failure to meet the objective standard of a prudent
person. Similarly, in criminal law, actions are judged objectively based on how a reasonable person
would have acted in the given circumstances.

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