• Negligence is the breach of a duty caused by the omission which a

reasonable man guided by those considerations which ordinarily

regulate the conduct of human affairs would do or doing
something which is a prudent and reasonable man would not do.
According to Pollock, it consists of the objective standard of
conduct of a reasonable man.
Prof Winfield -
According to professor Winfield Negligence is the breach of a legal
duty to take care, which results in damage, undesired by the
defendant to the plaintiff.
Baron Alderson-
Negligence is the omission to do something, which a reasonable
man guided upon those considerations, which ordinarily regulate
human affairs, would do or doing something, which a prudent or
reasonable man would not do.
• There are two theories of negligence as follow
1) Subjective theory
2) Objective theory
• THEORY OF STRICT LIABILITY
• Sir John Salmond is the chief exponent of the subjective
theory of negligence. this theory is also supported by
professor Winfield. The subjective theory is based on 'mens-
rea' (mental element) in the tortious liability. It is a state of
mind or inadvertence as to conduct and consequence.
2) Objective theory -
The objective theory is based upon the view that the
negligence is an independent tort. The main supporter of
the objective theory is Sir Frederick Pollock. According to
this theory, negligence is not a state of mind but a conduct
which falls below the standard prescribed by law for
protection of others against unreasonable risk of harm
• The definition involves three constituents of the negligence
• (1) A legal duty to exercise due care on the part of the party
complained of towards the party complaining the former's
conduct within the scope of Duty.
• (2) Breach of the said duty;
• (3) Consequential damage.
• Essential Elements
• The Plaintiff in an action for Negligence has to prove the
following :
• (1) That the defendant was under a legal duty of care to him.
• (2) There was breach of duty on the part of the Defendant
• (3) That the breach of that duty was the legal cause of the
damage complain of i.e. the breach of duty must be the direct
and proximate cause of damage.
• (4) Actual damage must result as negligence is not actionable
per se
• Relevant Cases :
• i) Donoghue Vs. Stevenson (1932) A.C. 532
• Negligence is defined as the absence of such care as it was
the duty of the defendant to use.
• It is a form of Mens rea.
• It is a culpable carelessness.
• Intention is not a necessary requirement for all torts. i.e
Few forms of torts does not require that intention be
proved / established. However, Crime requires that
intention be proved.
• Not all forms are negligence are punitive. Courts generally
bring only treat those acts of “gross negligence” or
“recklessness” as criminal acts.
• There are two types of Negligence
• Advertent Negligence
• Inadvertent Negligence
• Advertent Negligence
• Also called willful negligence or recklessness.
• Harm done is foreseen as possible or probable, but it is not willed.
• Example: Person who drives furiously in a crowded street causes
injury to persons is said to have committed Advertent Negligence.
• Inadvertent Negligence
• Negligence as a result of ignorance, thoughtlessness or
forgetfulness
• Harm is neither foreseen nor willful.
• Example: Doctor who treats a patient with negligence
• The Term "Obligation" means to do or not to do an act, or to
perform some work or an act. There are two kinds of
obligation which are Sole Obligation and Solidary Obligation.
Solidary Obligations is of Three Kinds. (See... Meaning
Definition and Kinds of Solidary Obligation.)
• Definitions of Obligation -
• According to According to Sir John Salmond" An
obligation, therefore, may be defined as a proprietary right in
personam or a duty which corresponds to such a right."
Obligations are all in one class of duties, namely those which
are co-relatives of rights in personam.
• According to Holland, An obligation as its entomology
denotes is a tie by one person is bound to perform some
act for the benefit of another. In some cases, the two
parties agree thus to be bound together; in other cases
as they are bound without their consent.

• According to Savigny an obligation is the control over

another person, yet not over his person in all respects (in
which case his personality would be destroyed), but over
single acts of his which must be conceived of subtracted
from his free will and subjected to our will
• Sources of Obligation -
• There are four sources of an obligation which are as follows -
• (1) Contractual obligation (obligations arising from contract) -
• Contractual obligations are those which are created by contracts
or agreements. These obligations create rights in personam between
the parties. The rights so created are generally proprietary rights.
Sometimes a contract creates rights which are not proprietary though
they are in personam.
• (2) Delictual Obligation (obligations arising from tort) -
• Delictual obligations arises from tortious liability. According to
Salmond, " A Tort may be defined as a civil wrong for which the remedy
is an action for damages and which is not solely a breach of contract or
the breach of Trust or other merely equitable obligations. Delictual
obligations are those in which a sum of money to be paid as
compensation for a tort
• (3) Quasi-contractual obligations (obligations arising from
quasi-contract) -
• The term "Quasi" is a Latin word which, which means "as
if" or "similarly". Quasi-contract is not a real contract entered
into by the parties intentionally. It resembles a contract, in
which law imposes an obligation on a person to perform an
obligation on the ground of equity. Quasi-contract is based on
the principle of equity that "A person shall not be allowed to
enrich himself unjustly at the expense of another“ .In other
words, A person should not receive or accept any benefit
unjustly. If so, he has an obligation it back to the right owner.
Such obligations is called Quasi-contractual obligation.
• Example - "X" leaves his Bag at Y's house by mistake. "Y" has
Quasi-contract obligation to return it to "X"
• (4) Innominate obligation -
• Innominate obligations- Innomited obligations are all
the obligations which are other than those falling under the
heads of contractual obligation, delictual obligations and
Quasi-contractual obligation.

• Examples - Obligations of trustees towards their

beneficiaries
• Liability is the result of a violation of the law. Law lays
down is down the right and duties on the individual. The
law awards legal rights to one individual and imposes the
duty upon another person. A person should not infringe is
the legal right of others. If anybody violates the legal right
of another, he is said to have committed a wrong. If there
is a wrong there is a liability.
• Definition of Liability -
• It is difficult to define the term 'liability' Some Eminent
Jurists made attempt to define the term 'liability'.
• Salmond -
• According to Sir John Salmond, "liability or responsibility is the bond of
necessity that exists between the wrongdoer and the remedy of the wrong."
• Markby -
• According to Markby, the word 'liability' is used to describe the condition of a
person who has a duty to perform whether that duty is primary one or secondary or
sanctioning one.
• Austin -
• Austin prefers to use the term 'imputability' to 'liability'. According to him, Those
certain forbearances, Commissions or acts, together with such of their
consequences, as it was the purpose of the duties to avert, are imputable to the
persons who have forborne omitted or acted.
• Different Kinds / Types of Liability -
• Different Kinds of Liability are as follows -
• 1) Civil liability -
• Civil liability is the enforcement of the right of the
plaintiff against the dependent in civil proceedings. Civil
liability gives rise to Civil Procedure whose purpose is to the
enforcement of certain rights claimed by the plaintiff against
the defendant. Examples of civil proceedings are an action
for recovery of the Debt, Restoration of property, the
specific performance of a contract, recovery of damages,
the issuing of an injunction against the threatened injury
etc.
• 2) Criminal Liability -
• Criminal liability is the liability to be punished in a
criminal proceeding. in criminal liability, punishment is
awarded to a wrongdoer. If the person is guilty of
committing the offense with criminal intension then he is
liable for punishment. Criminal liability is based on the
Maxim "actus non facit reum nisi mens sit rea" it means
the offender is guilty only when it is done with the guilty
mind.
• 3) Penal liability -

• The theory of penal liability is concerned with the punishment

of wrong. There are different kinds of punishment, Deterrent,
preventive, retributive, reformative etc. A penal liability can arise
either from a criminal or a civil wrong. There are three aspects of
penal liability those are the conditions, incidence, and measure
of a liability. As regards the conditions of penal liability, it is
expressed in the maxim "actus non facit reum nisi mens sit rea"
This means that the Act does not constitute guilt unless it is done
with guilty intention. Two things are required to be considered in
this connection and those are the act and the mens rea requires
the consideration of imitation and negligence. The act is called
the material condition of penal liability and the mens rea is
called the formal condition of penal liability.
• 4) Remedial Liability -
• Remedial liability is based on the Maxim "Ubi jus ibi
remedium" it means when there is right there must be
some remedy. The force of law can be used to compel a
person to do what he ought to do under the law of the
country. if an injury is caused by the violation of a right,
the same can be remedied by compelling the person
bound to comply with it. The first exception is an
imperfect obligation or duty, Second exception
unenforceable duties and the third exception is the
impossibility of performance by law.
• 5) Vicarious liability -
• Vicarious liability means a liability which is incurred for
or instead of another.
• Generally, a person becomes liable for a tort committed by
him. But there are certain circumstances in which one person
becomes liable for the tort committed by another. Such
liability is called vicarious liability. There are three exceptions
to the general rule that man must be forced to do by the
force of law what he is bound to do by a rule of law.
• Example-
• Master and servant
• Firm and partners
• Employer and independent contractor
• 6) Absolute or strict liability

• Both in Civil and criminal law, mens rea or guilty mind

is considered necessary to hold a person responsible/liable.
However, there are some exceptions to the general rule. In
those cases, a person is held responsible irrespective of the
existence of either wrongful intent or negligence. Such cases
are known as the wrongs of absolute liability/ strict liability.