Theories of negligence under law of torts

Theories of negligence under law of torts


The term negligence is derived from the Latin term “negligentia” which means “failing to do up to”. The term negligence means that when a reasonable man fails to do his duty up to the mark or what a reasonable man should not had done it. Negligence is caused when the defendant fails to do his part perfectly which have caused damage to the plaintiff. In the words of Winfield: – “the breach of a legal duty to take care which results in damage. undesired by the defendant to the plaintiff”. There are 2 theory of negligence: –

Objective theory

This theory is advocated by Sir Frederick Pollock. This theory states that the negligence is free of state of mind that is mens rea (mental element) of a person but the act happened because of lack of care that a reasonable man should take.
This theory is criticised on the ground that, failure to take care is not always because of the negligence and the mere conduct of a person is not sufficient to prove whether the accident was because of the negligence or intentional behaviour.

Subjective theory

The chief exponent of subjected theory of negligence is professor Salmond, professor Winfield was also a strong supporter of this theory. This theory states that every negligent act is done by a person with mens rea that is mental element or intention.

Essential of negligence: –

Duty of care– For a person to be proved guilty of negligent, at first is has to proven that the defendant had a duty towards the plaintiff as the law of tort is based on the concept of “right in rem” that means “the right is available against the whole world at large”. The duty of care is a legal obligation on every person to exercise a particular level of safeguard that a reasonable prudent man takes. As an example, the person who is driving on the crowded road have to follow all the rules that reasonable men should take to avoid injury to the others. There also exist a legal duty from my doctor side to offer the same level of care that a similarly trained medical practitioner would give.

When the circumstances of the act indicated that certain consequence might occur the reasonable person must be held to have foreseen the consequences. The definition of legal responsibility changes from time to time with the change in the social condition and standard. The categories of negligence and never closed.

Breach of Duty- The second element for a defendant to be proved guilty of negligence is that the duty by the defendant is breached which led to the damages to the plaintiff. The degree of care which a man is required to use in a particular situation in order to avoid the imputation of negligence varies with the obviousness of the risk. Let’s take an example as two person who are carrying different Mirrors one with pointed edges and other with curved edge. The degree of care that the person with pointed edge should take, is greater than that of other. If he doesn’t take such standard of care it led to the breach of duty.

Damage- After proving that the duty existed on the side of the defendant and duty is breached by him, there should be an actual damage for a person to be eligible for compensation. The damage sustained by the plaintiff should be the direct consequence of a negligent act. Here came into play the concept of remoteness of damage to understand the remoteness of damage, let’s take an example, a person named A who was coming on his bike and another person named B who was coming from opposite direction in a car because of the negligence of B the accident takes place, he will be liable for damages to A. But the accident was so brutal that the pregnant women who saw it from her window as result she fell unconscious and lost her child; the person B will not be held liable for the injuries to the woman because the damage sustained by that women were not been seen by a reasonable man.

The maxim “Res Ispa Loquitor” means things speak for itself. In the case of negligence, it is presumed that damage is caused because of the negligence of the other party as the exclusive control was with him. It is assumed that if that incident has happened, then there is negligence in first place, if there was no negligence, the accident would not have happened.

Defences for negligence

Vis Major or act of god– when there is an injury to a person because of the occurrence of an event which is not controlled by the humans and is guided by the natural forces, like earthquake and tsunamis is termed as act of god. In the case of Nichol vs Marshland, the defendant has created an artificial lake on his land due to the very intense rainfall the boundary of the lake broke and caused damage to the plaintiff, the court held it as an act of god because the rainfall was very intense as compared to the other time at that place.

Inevitable accident- It is termed as when a situation was under humans’ control but due to some reason it is out of control of a human, like when the breaks of the car fails. The damage should not be guided by natural forces. As an example, shooting a bird sitting on a tree the bullet rebounded and injured the plaintiff then it will be termed as inevitable accident

Contributory negligence- This is a good defence in the case of negligence but it is not a complete defence, the term contributory negligence is used when the plaintiff himself fail to take reasonable care to safeguard himself. As an example, two persons are driving from opposite direction on a one-way road whose speed limit is 50Km/Hr. Person A is moving in opposite direction with the greater speed prescribed and second person B is coming from opposite direction within speed limit. If the accident take place then it will be termed as contributory negligence because both the party were at fault.

Author: Devanshu Jain,
SLS Nagpur

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