LEGAL DISCOURSE ON THE THEORIES OF NEGLIGENCE
By Vaibahv Kartikeya Agrawal, Advocate, Bar Council of India. Email: vaibhavkartikeya@gmail.com.
https://doi.org/10.5281/zenodo.14076930

ABSTRACT

Negligence is a civil wrong and is actionable in torts. There are two theories of negligence, subjective and objective. This paper endeavours to explain the concept of subjective and objective theories of negligence in reference to the examples devised by the author himself. The paper derives the crude concept of theories from the works of authors and their books stated in some of the citations, however, does not follow the strict citation method to cite them. The paper affirms that the objective theory is derivative of the principles of natural justice. This paper provides an insight into the principles that govern the assessment of liability in the tort of negligence and thus would add to the legal jurisprudence.

Keywords- Negligence, Torts, Limitation Act, 1963, Subjective Theory etc

I. INTRODUCTION

Negligence is a Tort to person and property both. Tort is a civil wrong.  

According to Section 2(m) of the Limitation Act 1963, ‘Torts means a civil wrong which is not exclusively a breach of contract or a breach of trust’.

Ø Tort results in a right in rem conferred by law. Right in rem means duty is towards community or World at large.

Ø The person committing the tort is called tort –feasor.

Ø In order to constitute a tort, there must be

· some act or omission on the part of the defendant resulting in infringement of some right of the plaintiff.

· The act or omission should result in a legal damage.

II. CLASSIFICATION OF LAW OF TORTS

1. Torts to person – It includes Assault, battery, false imprisonment, etc.

2. Torts to property – It includes trespass, to both movable and immovable property.

3. Torts to person and property both – It consists of following three acts:

· Negligence

· Nuisance

· Fraud

Fraud: Fraud is the commission of any act with intent to deceive another party thereto or his agent or to induce him to enter into a contract.

Nuisance: Nuisance is unlawful interference with person’s use or enjoyment of land or of some right over, or in connection with it.

Negligence: Salmond states: Negligence is the state of mind of undue indifference towards one’s conduct and its consequences.

Carelessness is considered when carefulness is obligatory under law. Carelessness excludes wrongful intention.

There are two theories of negligence:

(A) Subjective Theory

(B) Objective Theory

SUBJECTIVE THEORY

The exponents of subjective theory admit that negligence is the state of mind of undue indifference towards one’s act and its consequences. According to Austin, want of advertence which one's duty would naturally suggest is the fundamental idea in the conception of negligence. He says that a negligent wrongdoer does not know that his act is wrongful due to indolence (inactiveness) and inadvertence. He may know the consequences of his act when his state of mind is normal.

Austin distinguished Negligence from Heedlessness, Rashness and Recklessness. There is very fine distinction between these terms. It is explained as under:

According to Austin, Negligence is the state of mind of a person who inadvertently omits an act and breaks a positive duty.

Example: To drive vehicle in the road when driving is restricted by red signal.

In Heedlessness, the person does not think of probable mischief and does not bother to avert the possible consequences.

Example: A pedestrian crosses the road of open traffic without using the zebra crossing.

In Rashness, the person foresees the consequences but foolishly thinks that they would not follow as a result of his act.

Example: During examination time, students study even ten minutes before the commencement of the exam without caring the consequences.
Recklessness, the doer of the act foresees the consequences but does not bother whether they result from his act or not.

Example: In India, before independence, the Freedom Fighters aided the Civil Disobedience Movement in spite of the harsh punishments given by the Britishers.

Therefore, Salmond concludes that the essence of negligence is not inadvertence but carelessness which may or may not result in inadvertence.

OBJECTIVE THEORY

This theory is supported by Sir Frederick Pollock. According to him, Negligence is the breach of a duty to take care which a reasonable man under those circumstances would take.

Law considers the objective theory. It does not support subjective theory. A valid reason for the consideration of Objective theory by Law is definitely for the reason that the Subjective theory considers the state of mind of the person, however, it is difficult and often impossible to find the state of mind of a when he committed the offence. Objective theory confers ways to determine liability of the wrong-doer on the act committed. Law is not applicable for persons of insane mind, delirious or drunken persons, or persons of indolence state of mind. Therefore, Subjective theory explains the cause of negligence exactly. However, law cannot ponder over contingence of the elements of crime or of the state of mind of the alleged tortfeasor. Our judicial system is based on the principles of natural justice which emphasizes on the crude concepts of equity, justice and good conscience rather than subjective assessment of pro-science intuitions of a person. So, the principles of natural justice favour the objective theory of negligence in practice.

The three essential ingredients of negligence as a tort are:

1. Legal duty to take care –

Duty of care is conferred according to amount of risk involved in work of the person.

Example - A person does not owe a duty of care to feed a starving poor child but he does owe a duty of care to pedestrians & other road users while driving a vehicle.

Case - Donoghue v. Stevenson ([1932] AC 562):

Facts - In this case, a man bought from a retailer a bottle of ginger-beer and conferred it to a lady who drank it. In a subsequent glass, she discovered a snail floating in the drink. It caused horror to her and she sued the retailer.

Judgment – Court held that the manufacturer owes a duty of care while conferring food items to customers. This is prima facie negligence and manufacturer was held liable. Retailer was not liable because he was insured by the government to sell the goods delivered by the defendant.

Case - Bourhill v. Young ((1943) A.C. 92)

Facts – A collision occurred between a bike and a car on account of negligence of driver of car. X witnessed the accident and suffered a nervous shock.

Judgment - Held he could not recover damages because defendant do not owes any duty of care to X.

Conclusion of the above case – The person doing an act of negligence owes a duty of care only on the person vis-à-vis to him on whom that act was done and not on victims companions or relatives. Thus, the duty is towards persons who are in contemplation of the wrong-doer and closely and directly affected by the negligent act.

2. Breach of legal duty – This point is explained by following two cases:

Case- Mata Prasad v. Union of India (AIR (1978) All. 303)

Facts- The plaintiff, a carrier, was crossing the railway level crossing at 6.15 p.m. when the gates were open. He was hit by a railway engine which had no head-lights and which gave no whistle.

Judgment – The railway administration was liable on the maxim of res ipsa loquitor. The fact that the gate was open is prima facie evidence of negligence on the part of the Railway Administration.

Case – Mc Gowan v. Scott ((1930) 143 L.T. 217)

Facts – The defendants motor car mounted the pavement and knocked down the plaintiff, a pedestrian from behind.

Judgment – The defendant was liable and the rule in res ipsa loquitor applied.

The maxim res ipsa loquitor is ratified in these cases.

3. Consequential Damages – The plaintiff must also prove that as a result of the breach of duty owed by the defendant to him, he suffered some damage. Some of the principles devised by the precedents in order to determine liability in a case of consequential damages are:

(i) Principle of directness of damage- A defendant is liable for the damage which is direct consequence of his act whether such damage could be foreseen by a reasonable man or not.

Case – Polemis v. Furness, Withy and Co., Re ((1921) 3 K.B. 560)

Facts – The defendants chartered a ship carrying drums of petrol. Due to leakage in the drums, some petrol collected in the hold of the ship. A worker negligently dropped a plank into the hold which caused a spark. This resulted in a fire in the ship which completely destroyed the ship.

Judgment – The loss of the ship was the direct consequence of the negligent act as such the charterers of the ship were liable for the loss of the ship.

(ii) Principle of reasonable foresight – The principle of reasonable foresight states that the defendant is liable only if the consequences of a wrongful act could have been foreseen by a reasonable man. Thus forseeability is the principle for liability of the defendant for the damage.

Case – The Wagon Mound Case ((1961)A.C. 388)

Facts – The Wagon Mound, an oil ship, was chartered by the appellants. Owing to negligence of appellant’s servants, fuel oil split from the ship into Sydney harbor. The oil was spread over and carried by the tide to the respondent’s wharf where their employees were welding. The sparks from welding ignited the oil and set fire to the wharf and damaged the ship which the respondents were refitting.

Judgment - The appellants were not liable as they could not have reasonably foreseen that the floating oil would catch fire; and as such they were not liable even though the damage caused was the direct result of their servants’ negligence.

Polemis and Wagon Mound, in both these cases, the defendant servant of the ship negligently performed the duty owed to them, but Polemis servants became liable while those in the Wagon Mound were held not liable. If the principle of directness of damages is applied in Wagon Mounds case, the fact would explicate that the fire and the loss to ship was a direct result of the ignition carried out by the workers in the ship. However, the close connection principle in conjunction with the foreseeability criterion justifies the respective lack of negligence on the part of workers in the Wagon Mound.

III. CONCLUSION

Objective theory of negligence states that state of mind is the cause of negligence and states the legal way of determining the negligence. Law does not consider the cause of breach of trust or breach of contract to be the cause of commission of a particular act.

Negligence as the word apparently suggests, takes place due to the state of mind of the person doing the wrong. But if law will consider the cause of commission of wrongful act for determining liability, i.e. state of mind in negligence, there cannot be any scientific proof as to what the state of mind of the person was during the commission of the offence. Therefore, Law considers the Objective theory of negligence.

REFERENCES

1. Bourhill v. Young ((1943) A.C. 92)

2. Donoghue v. Stevenson ([1932] AC 562)

3. Dr. N.V. Paranjape, Jurisprudence and Legal Theory 401 (6th edn. 2011, Reprint 2012, Central Law Agency, Allahabad).

4. Kapoor,N.D. and Abbi, Rajni, “General Laws And Procedures”, (Sultan Chand & Sons, New Delhi, 1994 edn.)

5. Mata Prasad v. Union of India (AIR (1978) All. 303)

6. Mc Gowan v. Scott ((1930) 143 L.T. 217)

7. Polemis v. Furness, Withy and Co., Re ((1921) 3 K.B. 560)

8. The Wagon Mound Case ((1961) A.C. 388)

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