Jurisprudence
Negligence: Subjective and Objective Theories
At a Glance ▪ Negligence appears in law in two roles: as a form of mens rea (Salmond's second form, beside intention) and as an independent tort made up of duty, breach and damage. ▪ The subjective theory (Salmond, Austin) treats negligence as a state of mind: carelessness, inadvertence or indifference to the consequences of one's conduct. ▪ The objective theory (Pollock, Clerk and Lindsell, Winfield) treats negligence as conduct falling below the standard of the reasonable man, whatever the defendant was thinking. Modern tort law follows it. ▪ Classic landmarks: Blyth v Birmingham Waterworks (1856), Donoghue v Stevenson (1932) and the neighbour principle, Bolam (1957) for professionals, and in India Jacob Mathew (2005): criminal medical negligence must be gross. ▪ Criminal negligence causing death is now Section 106 BNS (formerly Section 304A IPC). Res ipsa loquitur lets negligence be inferred from the accident itself (MCD v Subhagwanti, 1966). |
Picture two driving examiners watching a candidate clip a parked car while reversing. The first asks what was going through his mind: was he attentive, did he care? If he honestly tried his best, she is inclined to excuse him. The second ignores his mind and uses a checklist of what a competent driver does: mirror, signal, look over the shoulder, reverse slowly. Fall short and you fail, however hard you tried. The first applies the subjective theory of negligence, the second the objective theory. Which examiner the law should be, as this note shows, differs between tort and crime.
1. Meaning of Negligence
The word comes from the Latin negligere, to disregard. In law it has three meanings. It is a mental element of liability, less culpable than intention: for Salmond mens rea takes two forms, intention and negligence (Note 34). It is a mode of committing many wrongs, such as a negligent trespass or homicide. And since Donoghue v Stevenson (1932) it is an independent tort of duty, breach and damage. The theories divide over the first meaning: is negligence a state of mind, or a failure of conduct measured against an external yardstick?
Classic Definitions ▪ Alderson B (Blyth v Birmingham Waterworks, 1856): negligence is the omission to do something which a reasonable man, guided by the considerations that ordinarily regulate human affairs, would do, or the doing of something which a prudent and reasonable man would not do (paraphrase). ▪ Salmond (Jurisprudence): negligence is culpable carelessness; it consists in a mental attitude of undue indifference towards one's conduct and its consequences (paraphrase). ▪ Winfield: 'Negligence as a tort is the breach of a legal duty to take care which results in damage, undesired by the defendant, to the plaintiff.' ▪ Pollock (Law of Torts): negligence is the contrary of diligence, and diligence is not a state of mind; negligence is a failure to act as a reasonable and prudent person would act in the circumstances (paraphrase). ▪ Lord Atkin (Donoghue v Stevenson, 1932): 'You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.' |
2. The Subjective Theory: Negligence as a State of Mind
The subjective theory is associated with Salmond and Austin. Negligence is a state of mind, which is why it can be a form of mens rea. The negligent person does not desire the harm; he does not care enough about it. Salmond called negligence culpable carelessness, an attitude of undue indifference towards the consequences of one's conduct. Liability gives the careless a reason to think in future.
Austin drew a finer set of distinctions within the careless mind. Negligence, in his narrow sense, is the omission of an act that ought to be done, because the party does not advert to his duty. Heedlessness is doing an act that ought not to be done, without adverting to its probable consequences. Rashness is adverting to the probable mischief but wrongly assuming that it will not follow (paraphrase). What unites the three is a defective state of the mind in relation to duty and consequences: in negligence and heedlessness, a failure to advert; in rashness, a wrong judgement after adverting. Austin's rashness is the ancestor of the Indian distinction between rash and negligent acts discussed below.
The theory explains why negligence deserves blame at all, fits the intuition that fault is personal, and grades culpability: intention is worse than rashness, rashness worse than inadvertence. But inadvertence is nearly impossible to prove; the defendant who says 'I simply did not think of it' cannot be contradicted. An anxious learner trying very hard may still drive badly, and an indifferent driver may take every precaution out of habit. What the law actually responds to, say the objectivists, is the conduct.
3. The Objective Theory: The Reasonable Man
The objective theory is associated with Sir Frederick Pollock and adopted by the leading tort texts, Clerk and Lindsell and Winfield. Negligence is a mode of conduct: failure to take the care a reasonable person would take in the circumstances. Pollock's argument: negligence is the opposite of diligence, and no one calls diligence a state of mind. What passed through the defendant's head is beside the point.
The standard is the reasonable man, an imaginary figure of ordinary prudence, sometimes called the man on the Clapham omnibus (Greer LJ in Hall v Brooklands Auto-Racing Club, 1933). In Glasgow Corporation v Muir (House of Lords, 1943) Lord Macmillan said the standard eliminates the personal equation and is independent of the idiosyncrasies of the particular person (paraphrase). In Nettleship v Weston (Court of Appeal, 1971) a learner driver doing her incompetent best was held to the standard of a reasonably competent driver.
Blyth v Birmingham Waterworks Co. Court of Exchequer, 1856 The company had laid a water main with a fireplug built to a design that had worked well for many years. In the extraordinarily severe frost of 1855 the plug froze, water escaped and flooded the plaintiff's house. The court held that the company was not negligent: it had taken the precautions a reasonable person would take against frosts of ordinary severity, and was not bound to guard against an exceptional one. Alderson B's definition of negligence, framed in terms of what the reasonable and prudent man would or would not do, became the classic statement of the objective theory. The test asks what a reasonable man would have done, not what the defendant thought. |
Four factors guide the court. The probability of harm: a cricket club was not negligent when a ball left the ground on a very rare occasion (Bolton v Stone, 1951). The gravity of harm: a workman already blind in one eye was owed goggles (Paris v Stepney Borough Council, 1951). The cost of precautions: an employer need not close a flooded factory (Latimer v AEC, 1953). The utility of the activity: a fire service taking a risk to save life was not negligent (Watt v Hertfordshire County Council, 1954). Learned Hand expressed the balance as a formula (Note 85).
Point | Subjective theory | Objective theory |
|---|---|---|
Main exponents | Salmond, Austin | Pollock, Clerk and Lindsell, Winfield |
Negligence is | A state of mind: carelessness, inadvertence, indifference | Conduct falling below the standard of the reasonable man |
Key question | Did the defendant care about the consequences? | Did he do what a reasonable person would have done? |
Standard | Personal to the defendant | Impersonal and external (Glasgow Corporation v Muir) |
Relation to mens rea | A form of mens rea beside intention | Not a mental element but a failure of conduct |
Proof | Hard: inner states are hidden | Easier: conduct is observed and compared |
Honest but incompetent defendant | May escape liability | Liable (Nettleship v Weston) |
Where it dominates | Criminal law's focus on advertence and gross fault | The law of torts |
4. The Composite View
Most modern writers treat the dispute as a false choice. Negligence shows itself in conduct below a standard, which is why it is measured objectively; it is blameworthy because the conduct reflects a failure to attend or foresee that the person could have avoided. H.L.A. Hart argued that negligence is a proper ground of criminal liability where the defendant had the capacity and a fair opportunity to take the precautions he omitted (paraphrase), linking negligence to capacity responsibility (Note 89).
The theories thus serve different parts of the law. In tort, which compensates, the objective theory prevails: the victim should not go uncompensated because the defendant was honestly incompetent. In criminal law, which blames and punishes, the law requires a gross degree of negligence, and for rashness a conscious running of risk. The standard is objective, but the degree of fault required rises with the stakes for the defendant.
5. Negligence as an Independent Tort: Duty, Breach and Damage
Donoghue v Stevenson House of Lords, 1932 (3:2) Mrs Donoghue drank ginger beer, bought for her by a friend at a cafe in Paisley, from an opaque bottle that allegedly contained the remains of a decomposed snail. Having no contract with the manufacturer, she could sue only in tort. The majority held that a manufacturer who sells products in a form showing that he intends them to reach the ultimate consumer without reasonable possibility of intermediate examination owes that consumer a duty of reasonable care. Lord Atkin's neighbour principle: you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour, and your neighbours are persons so closely and directly affected by your act that you ought reasonably to have them in contemplation. Negligence became an independent tort. |
The tort has three ingredients. Duty: in Caparo Industries v Dickman (House of Lords, 1990) this requires foreseeability of damage, proximity, and that a duty be fair, just and reasonable. Breach: conduct below the objective standard. Damage: caused by the breach and not too remote, remoteness being judged by reasonable foreseeability (The Wagon Mound, 1961; Note 34). Unlike trespass, negligence is not actionable without damage.
6. The Standard of Care for Professionals
Bolam v Friern Hospital Management Committee Queen's Bench Division, 1957 A patient suffered fractures during electroconvulsive therapy given without relaxant drugs or restraint. McNair J told the jury that a doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even if other doctors would have acted differently. The jury found no negligence. The Bolam test became the standard for all professionals. In Bolitho v City and Hackney Health Authority (House of Lords, 1997) it was qualified: the professional opinion relied on must be capable of withstanding logical analysis. |
Indian courts adopted Bolam. In Indian Medical Association v V.P. Shantha (Supreme Court, 1995) medical services rendered for payment were brought within the Consumer Protection Act. The harder question was when a doctor's negligence becomes a crime.
Jacob Mathew v State of Punjab Supreme Court of India, 2005 (3 judges) A patient in a hospital had difficulty breathing; no oxygen cylinder was available in working order, and he died. The doctors were prosecuted for causing death by negligence (formerly Section 304A IPC). The Court quashed the prosecution. It held that negligence in civil law and in criminal law are different. For criminal liability the negligence must be gross or of a very high degree; a mere error of judgement, or a lack of care that would suffice for damages, is not enough. The Court applied Bolam to the standard of care and laid down safeguards: a private complaint against a doctor should be supported by credible medical opinion, and the doctor should not be arrested as a matter of routine. |
7. Criminal Negligence in Indian Law
The central provision is Section 106 BNS (formerly Section 304A IPC): causing death by a rash or negligent act not amounting to culpable homicide. The BNS raised the maximum under the first sub-section from two years to five, with a lower maximum for a registered medical practitioner in the course of a medical procedure. It covers deaths neither intended nor knowingly caused in the sense required for culpable homicide (Section 100 BNS, formerly Section 299 IPC).
Empress v Idu Beg Allahabad High Court, 1881 Straight J distinguished the two limbs of the provision in terms still quoted by the Supreme Court. Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so and that it may cause injury, but without the intention of causing injury or the knowledge that it will probably be caused. Criminal negligence is the gross and culpable neglect or failure to exercise the reasonable and proper care and precaution that it was the duty of the accused to adopt (paraphrase). Rashness is therefore advertent: the accused sees the risk and runs it. Negligence is inadvertent: he fails to see a risk he ought to have seen. Austin's distinction between rashness and negligence reappears here in judicial form. |
English law agrees. In Andrews v DPP (House of Lords, 1937) Lord Atkin held that the simple lack of care that gives civil liability is not enough for manslaughter. In R v Adomako (House of Lords, 1994) an anaesthetist who failed for minutes to notice a disconnected oxygen tube was guilty of gross negligence manslaughter. Jacob Mathew drew on these cases.
8. Contributory Negligence
Contributory negligence is the plaintiff's own failure to take reasonable care for his safety, contributing to his harm. At common law it was a complete defence (Butterfield v Forrester, 1809: a rider galloping carelessly into a pole left across the road recovered nothing), softened by the last opportunity rule of Davies v Mann (1842), the case of the fettered donkey run down by a wagon. England moved to apportionment in the Law Reform (Contributory Negligence) Act 1945, reducing damages according to the plaintiff's share of responsibility. India has no general statute, but courts apportion as a matter of justice, equity and good conscience, notably in motor accident claims. The plaintiff too is judged objectively.
9. Res Ipsa Loquitur
Res ipsa loquitur, the thing speaks for itself, eases the plaintiff's burden of proof. In Byrne v Boadle (1863) a barrel of flour fell from a warehouse onto a passer-by; in Scott v London and St Katharine Docks Co. (1865) bags of sugar fell on a customs officer. Erle CJ stated the conditions: the thing must be under the defendant's management, and the accident must be one that does not ordinarily happen if proper care is used; the accident then affords evidence of negligence in the absence of explanation (paraphrase).
Municipal Corporation of Delhi v Subhagwanti Supreme Court of India, 1966 The Clock Tower in Chandni Chowk, owned by and under the control of the Corporation, collapsed and killed several people. The Court applied res ipsa loquitur: a well-built structure does not ordinarily collapse if properly maintained, so the fall itself raised a presumption of negligence which the Corporation had failed to rebut. The owner of a structure abutting a highway is bound to maintain it and to have it periodically inspected. The case is the classic Indian application of the maxim. |
The maxim is a rule of evidence that shifts the evidential burden to the defendant. In criminal trials it is applied with great caution, as the Supreme Court said in Syad Akbar v State of Karnataka (1979), a case of rash driving.
10. Evaluation
The history of negligence is a movement from the subjective to the objective. The objective standard is easier to apply and protects victims from the honest incompetent, but it means a person may be legally at fault without moral blame, so that fault liability shades into strict liability (Note 85). The criminal law keeps a subjective check: gross negligence, the line between rashness and negligence, and protection for professionals' errors of judgement. The best examination answer is the composite one.
Memory Aid ▪ Analogy: two driving examiners. The first asks what the candidate was thinking (subjective: Salmond, Austin); the second ticks a checklist of what a competent driver does (objective: Pollock). ▪ 'S and A think; P watches.' Salmond and Austin look at the mind; Pollock (with Clerk and Lindsell and Winfield) watches the conduct. ▪ Tort of negligence: 'DBD'. Duty, Breach, Damage. Caparo's duty test: Foreseeability, Proximity, Fair just and reasonable: 'Fair Play First'. ▪ Breach factors: 'Probably Grave Costs Useful'. Probability (Bolton v Stone), Gravity (Paris v Stepney), Cost of precautions (Latimer), Utility (Watt). ▪ Rash versus negligent: the rash man sees the risk and runs it; the negligent man fails to see it (Idu Beg, 1881). |
Exam Corner: Likely Questions ▪ Is negligence a state of mind or a type of conduct? Critically examine the subjective and objective theories of negligence. ▪ Explain the reasonable man test with the help of Blyth v Birmingham Waterworks, Glasgow Corporation v Muir and Nettleship v Weston. ▪ Distinguish civil and criminal negligence with reference to Section 106 BNS and Jacob Mathew v State of Punjab. ▪ Write short notes on: (a) res ipsa loquitur; (b) contributory negligence; (c) the Bolam test. |
Exam Corner: MCQ Traps ▪ Subjective theory: Salmond and Austin. Objective theory: Pollock (followed by Clerk and Lindsell, Winfield). ▪ The classic reasonable man definition of negligence is Alderson B in Blyth v Birmingham Waterworks (1856); the neighbour principle is Lord Atkin in Donoghue v Stevenson (1932). ▪ Causing death by negligence: Section 106 BNS, formerly Section 304A IPC; not Section 304 IPC. ▪ Jacob Mathew (2005): criminal medical negligence must be gross. V.P. Shantha (1995): medical services fall within consumer law. ▪ Clock Tower collapse and res ipsa loquitur: MCD v Subhagwanti (1966). |
11. Frequently Asked Questions
Q. What is the difference between the subjective and objective theories of negligence?
A. The subjective theory of Salmond and Austin treats negligence as a state of mind, a careless or indifferent attitude to consequences, and so a form of mens rea. The objective theory of Pollock treats it as conduct falling below the standard of the reasonable man, regardless of the defendant's state of mind. Tort law follows the objective theory.
Q. Who is the reasonable man?
A. An imaginary person of ordinary prudence, against whose conduct the defendant's conduct is measured. The standard is impersonal and does not adjust to the defendant's personal weaknesses (Glasgow Corporation v Muir), though professionals are judged by the standard of an ordinary skilled member of their profession (Bolam).
Q. How does criminal negligence differ from civil negligence?
A. Civil negligence is any failure to meet the standard of reasonable care that causes damage. Criminal negligence requires a gross or very high degree of negligence (Andrews v DPP; Jacob Mathew). Under Section 106 BNS, formerly Section 304A IPC, causing death by a rash or negligent act is punishable.
See also: Note 34 (liability, mens rea and remoteness), Note 85 (fault versus strict liability), Note 87 (motive versus intention), Note 89 (liability versus responsibility), Note 119 (legal acts), Note 121 (vicarious liability), Note 49 (economic analysis of law).
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