Theories of negligence under law of torts

Theories of negligence under the law of torts  

Negligence is defined as a civil tort that occurs when a person breaches his duty of care which he owed towards his neighbor (neighbor here means anyone who can get affected by his action) and due to which the other person suffers some legal injury. In simple language, negligence is a person’s carelessness which ultimately results in the injury or some harm to another. It is important to note that the injury must be a legal injury.  

There are two theories of negligence. These are 

  1. Subjective theory of negligence
  2. Objective theory of negligence

Subjective Theory of Negligence    

The subjective theory of negligence is given by Salmond and according to him, negligence is culpable carelessness. Although negligence is not the same as thoughtlessness or inadvertence, it is nevertheless essentially an attitude of indifference. The mental attitude of undue indifference in aspects of one’s conduct is essential for negligence. An individual may be liable for negligence if he simply doesn’t want to avoid a particular incident. Also, this view of Salmond was strongly supported by professor Winfield and he further added that negligence is merely a state of mind, inadvertence to some duty. 

Objective Theory of Negligence

The objective theory of negligence is given by Federick Pollock and according to him negligence is an objective fact and it is not based on the state of mind or mens rea as described by Salmond. But he insisted that negligence is a particular kind of conduct. It is the breach of duty to care and by saying to care means to take all possible precaution against those actions which can result in injury or any harm to other.  

Balancing the two different views  

Sometimes negligence can be used in both the sense subjective and objective, therefore it depends on which context its meaning is being conveyed. When a mental element or mens rea is involved it is used as subjective theory and when the wrongdoer fails to take the proper duty of care it is used as objective theory. For example, in subjective theory, if a mother neglects to provide food to her infant daughter and the child dies then in that case mental element may be considered instead of mere negligence. In such cases, it is difficult to determine the difference between wrongful intention and negligence without analyzing the mind of the wrongdoer. So, in such cases, the mental element plays an important role. Whereas in objective theory when there is no question of wrongful intention, it is decided on the basis of a reasonable man. Therefore, he is liable only when he has not taken care as much as a reasonable man would have taken. In

such cases mens rea of the wrongdoer is irrelevant and the entire case is judged objectively. 

Essentials of negligence 

According to Winfield “negligence as a tort is a breach of a legal duty to take care which results in damage, undesired by defendant to the plaintiff”. In order to prove negligence, the plaintiff has to prove the following essentials

  1. Duty of care to the plaintiff  
  2. Breach of that duty  
  3. Damage to the plaintiff  

Duty of care to the plaintiff 

Duty of care simply means a legal duty that one owes towards another, legal duty is completely different from moral, social, or religious duty. For example, if a man is driving on a busy road there, he is bound by law and it is his legal duty to drive in such a manner that he should not harm any other person present on the same road. Similarly, if he is driving on an empty road where there is no person near him then he has the liberty to drive at whatever speed he wants and there is no legal duty arising on him.  

Breach of that duty  

The law says that there must be a breach of duty that the defendant owes towards the plaintiff. In the same example given above let us say that the defendant while driving on the busy road knocks down a person named “X” in this case the defendant is liable for the tort of negligence because he has the duty and he breached that particular duty that he owed towards the plaintiff “X”. 

Damage to the plaintiff 

There must be some damage to the plaintiff by the breach of duty and damage must not be too remote. Thus, to prove negligence the plaintiff must show these necessary requirements. In the same example above when the defendant knocks down “X” while driving he owed the duty of care towards “X” and he breached that duty and as a result of such breach “X” broke his right legs which is the damage here. So here all the essentials of negligence are fulfilled and the court by looking at all the relevant facts will award damage to “X and the defendant will be held liable for the tort of negligence. 

Defenses to negligence 

  1. Vis major  
  2. Inevitable accident  
  3. Contributory negligence 
  4. Volenti non-fit injuria  

Vis major 

Vis major is act of God is a kind of defense to negligence which is sudden, violent, and direct cause of any natural force and which is beyond the control of any human being and cannot be prevented is vis major. Examples storm, tempest, lightning, high tide, etc. 

Inevitable accident 

Inevitable means something which is unavoidable, inescapable, uncertain, and which could not be foreseen or prevented in any circumstances even by exercising reasonable care.  

Contributory negligence 

Contributory negligence arises where the plaintiff has also contributed to the injury caused to him by the defendant. In certain circumstances, a person who has suffered an injury will not be able to get damages from another for the reason that his own negligence has contributed to his injury. 

Volent non-fit injuria  

Volenti non-fit injuria simply means there is no injury to a person who has consented to the injury caused to him. For example, if you go to a cricket stadium for a match and during the match one of the balls hit you on your head, here you cannot sue the organizers for the injury caused to you because in such cases you put yourself in such a position where you know the possibility of being hit by the ball. 

Author: Rohit Soni,
NMIMS Kirit P Mehta School of Law, First year student

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