A PROJECT ON

CONCEPT OF NEGLIGENCE
SUBMITTED TO:
Ms. ANUKRITI MISHRA
(Faculty of Jurisprudence-II)
Submitted By:
NEERAJ EKKA
Roll No. 78
Semester- VI

Hidaytullah National Law University

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ACKNOLEDGEMENTS

I am highly elated to carry out my research on this topic Concept of Negligence I would
like to give my deepest regard to our course teacher Ms. Anukriti Mishra, who helped me
with her immense advice, direction and valuable assistance, which enabled me to march
ahead with this topic. I am thankful to her for providing such important and interesting topics
for project report which are not only helpful but also encouraging from future perspective.
I thank my parents, who gave me moral and mental support. I would like to thank my friends,
who gave me their precious time for guidance and helped me a lot in completing my project
by giving their helpful suggestion and assistance.

Neeraj Ekka

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Contents
INTRODUCTION......................................................................................................................4
THEORIES OF NEGLIGENCE................................................................................................5
SUBJECTIVE THEORY.......................................................................................................5
OBJECTIVE THEORY..........................................................................................................7
KINDS OF NEGLIGENCE.......................................................................................................7
ADVERTENT NEGLIGENCE..............................................................................................8
INADVERTENT NEGLIGENCE..........................................................................................8
ESSENTIALS OF NEGLIGENCE............................................................................................8
TYPES OF NEGLIGENCE.......................................................................................................9
DEGREES OF NEGLIGENCE...............................................................................................10

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INTRODUCTION

Jurists have defined negligence in different ways. Salmond observed that negligence is
culpable carelessness. To quote him; negligence is the state of mind of undue indifference
towards ones conduct and its consequences. It is carelessness in the matter in which
carefulness is obligatory under the law. Carelessness excludes wrongful intention.
Salmond opines that the wrong-doer's mental condition is also very much important in a
negligent dangerous criminal act. Where a person has no professional skilfulness, he should
not operate that profession until he acquires such required skill.
According to Holland negligence includes all those shades of inadvertence which results in
injury to others but there is a total absence of consciousness on the part of the doer.
Negligence essentially consists in the mental attitude of undue indifference with respect to
ones conduct and its consequences.
The term negligence has been defined by Baron Alderson as the omission to do something
which a reasonable man, guided upon those considerations which ordinary regulate the
conduct of human affairs,would do, or doing something which a prudent and reasonable man
would not do.
Thus negligence may exist in non-feasance or misfeasance.

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THEORIES OF NEGLIGENCE
SUBJECTIVE THEORY

The exponents of subjective theory maintain that negligence is a state of mind. According to
them, negligence consists in the mental attitude of undue indifference with respect to ones
conduct and its consequence. Salmond supports this theory.
According to Salmond, "Negligence is culpable carelessness. Negligence essentially consists
in the mental attitude of undue indifference with respect to one's conduct and its
consequences".
Salmond opines that the wrong-doer's mental condition is also very much important in a
negligent dangerous criminal act. Where a person has no professional skilfulness, he should
not operate that profession until he acquires such required skill.
For example, a layman is learning motor driving and he does not get the required skilfulness
in driving. He should not drive the vehicle until he acquires complete profesionaI skilfulhess.
If he drives a vehicle with over-enthusiasm, and causes accidents and kills, it is his severe
wrong. The law does not excuse him.
According to Austin, want of advertence which ones duty would naturally suggest is the
fundamental idea in the conception of negligence. In this opinion, a negligent wrongdoer is
one who does not know that his act is wrongful but would have known it had it not been
because of his indolence and inadvertence. Thoughtlessness is thus the essence of negligence
for Austin.
As per Austin, "In case of negligence, a party performs not an act which he is obliged; he
breaks a positive duty". According to him, negligence is a faulty mental condition which is
pehalised by the award of damages.
Austin goes a step further in elaborating the subjective theory and distinguishes negligence
from heedlessness, rashness and recklessness. For him negligence is the state of mind of
person who inadvertently omits an act and breaks a positive duty. He proceeded to distinguish
between different states of mind, viz., rashness, heedlessness and negligence.

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In heedlessness, he does not think of probable mischief and does not bother to avert the
possible consequences.1
In rashness, he does foresee the consequences but foolishly thinks that they would not follow
as a result of this a act.
Recklessness, on the other hand, is a condition of mind where the doer foresees the
consequences but does not take care whether they result from his act or not.
Thus the line of distinction between rashness and recklessness is very thin. In the former,
there is erroneous thinking that consequences would not follow while in the latter the person
does not bother about the consequences at all.
Salmond objects to the above sub-classification on negligence made by Austin and treats all
these categories under the common head, namely negligence. The reason being that in all of
them there is failure to exhibit the standard of care required of a reasonable man. In his
opinion, Austins view is fallacious because the negligence may also be deliberate or wilful.
He therefore concludes that the essence of negligence is not inadvertence but carelessness
which may or may not result in inadvertence.

OBJECTIVE THEORY
According to this theory, negligence is not a condition of mind but a particular kind of
conduct which is to be judged objectively. This theory is supported by Federick Pollock. He
defines negligence as the breach of duty to take care which a reasonable person under those
circumstances would take. The tort of negligence is based on the objective approach to the
conduct and its consequences. Dr Winfield defines negligence as the breach of legal duty to
take care which results in damage, undesired by the defendant to the plaintiff.
Salmond criticises objective theory of negligence on the ground that it loses sight of the
essential distinction between intention and negligence. For him, negligence is purely mental
inadvertence and nothing more than carelessness.
Glanville Williams, the editor of Salmonds jurisprudence has tried to reconcile the above two
conflicting theories of negligence stating that they are two aspects of the same problem. In his
1 Austin : jurisprudence

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view negligence is subjective when a particular consequence is to be distinguished from the

intended consequence. In this sense, the pertinent question is whether the wrongdoer intended
the consequences or he was just indifferent to them. On the other hand, the objective theory
would be applicable when it is to be ascertained whether the consequence is accidental or
negligent. In this sense, the relevant question would be whether the defendant exhibited the
standard of care expected of a reasonable man under those circumstances.
The approach of Dr Glanville Williams appears to be correct and more logical. It is for the
reason that negligence has been used in two senses in law of torts. It is used in the sense of
state of mind as one of the general principles of determining tortious liability while
negligence as a tort is based on the objective theory.

KINDS OF NEGLIGENCE
ADVERTENT NEGLIGENCE
INADVERTENT NEGLIGENCE

Advertent negligence is generally called as wilful negligence.in this kind of negligence, the
harm is neither foreseen as probable but it is not intended or willed. In advertent negligence,
the harm is neither foreseen nor willed. However, in both these cases, carelessness or
indifference as to consequences is present. The difference between advertent and inadvertent
negligence can be understood by an illustration.
An operating surgeon may be fully aware of the serious risk involved in carrying out the
surgical operation of his patient but if he still performs the operation as a result of which the
condition of his patient deteriorates, it will be a case of advertent negligence. If the surgeon
wrongly operates the patient due to ignorance or a mistake, his negligence would be
inadvertent.
The distinction between advertent negligence (also called as recklessness and inadvertent
negligence may be further explained by yet another illustration.

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E.g., When a person drives his car furiously in a crowded market, fully conscious of serious
risk he is thereby exposing to other persons, he does not intend to injure any of them but
knowingly and intentionally exposes them danger, his act of reckless driving amounts to
advertent negligence since it was probable or foreseen. But if he drives thoughtlessly and
without adverting to the dangerous consequences of his act, he is guilty of inadvertent
negligence.

ESSENTIALS OF NEGLIGENCE

That the defendant was under a legal duty to exercise due care and skill as there
cannot be any liability for negligence unless there is a breach of some legal duty.

That the duty was towards the plaintiff.

That there was breach of that duty on the part of the defendant i.e. the defendant
failed to perform the duty to exercise his due care and skill.

That there was consequential injury or damage thereby, that is, damage as the natural
and probable consequences and the direct cause of the breach of the duty complained
of.

TYPES OF NEGLIGENCE

Gross Negligence In these cases the negligence was so careless it showed a

complete lack of concern for the safety of others. Gross negligence is a much more
serious form of negligence that goes a step further than simple careless
action. Example: Hospital staff does not change a surgery patients bandages for
several days, resulting in a serious infection.

Comparative Negligence This is where the plaintiff is marginally responsible for

the injuries to himself. The plaintiff may be required to pay a percentage of the

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damages in a comparative negligence case. Example: You drive through a green light
but are struck by someone running a red light. You sustain serious injuries because
you were not wearing a seatbelt.

Because you were partially responsible for your

injuries, you must pay $3,000 of the $10,000 damages amount while the defendant
must only pay $7,000.

Contributory Negligence In contributory negligence cases, if the plaintiff caused

his own injury in any manner, he cannot collect damages at all. This type of
negligence is being abandoned in many areas. In the example for comparative
negligence above, if contributory negligence applied, you would not receive any
damages because you partially contributed to your own injury by not wearing a
seatbelt.

Mixed Contributory & Comparative Negligence This form of negligence is a

combination of contributory and comparative. Mixed Negligence is where if the
plaintiff is determined to be more than 50% responsible for his own injury, they may
receive only a percentage of damages, or none at all. Example: Using again the car
accident scenario, if the jury determined that not wearing your seatbelt was half or
more than half the reason you were injured, you would receive little to no damages.

Vicarious Liability This form of negligence is where the defendant is held

responsible of the actions of another person or animal. This form of liability is often
used in cases where young children or minors caused serious injury, or a dog attack.
The parent of the child and owner of the dog will be held responsible for the damages
because the child or animal cannot be responsible for it themselves. Children under
the age of seven are considered incapable of negligence. Vicarious Liability can also
be used when an employer fails to properly oversee their employees, and is thus held
responsible for their actions.

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DEGREES OF NEGLIGENCE

Roman law recognises different degrees of negligence depending on the nature of conduct in
question. The law expects three degrees of care corresponding to three degrees of negligence
as follows:Culpa lata - it means failure to show any reasonable care at all. It has been called as gross
negligence which no man of prudence would commit.
Culpa levis in abstracto - it means failure to take that care as a reasonable head of the family
(pater familis) would have taken when a contract was being concluded for the benefit of his
family.
Culpa levis in concreto it implies failure by a person to take that care which he in ordinary
course would have shown in dealing with his own affair. In simple words, it means failure to
exercise ordinary diligence as against extra-ordinary diligence.