Negligence and Rashness: Inadvertence, and Advertence Followed by Indifference

The distinction belongs to the criminal law, where the two words are yoked together in a series of offences, and it turns on a single question: did the accused think about the risk. A negligent man did not advert to the consequence at all; he failed to foresee what he ought to have foreseen. A rash man adverted to it, and went on in the hope or the expectation that it would not come about; his fault is not a failure of attention but a want of restraint. Rashness is therefore ordinarily the graver of the two, and it is the word that comes closest to what the common law calls recklessness.

1. The Comparison

2. The Two Described

• Rashness is acting with the consciousness that the mischievous and illegal consequence may follow, but with the hope that it will not, and often with the belief that the actor has taken sufficient precautions to prevent it. The imputability arises from acting despite the consciousness.
• Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury which, having regard to all the circumstances, it was the imperative duty of the accused person to have adopted. The imputability arises from the neglect of the civic duty of circumspection.
• Rashness is over hasty conduct; negligence is inattentive conduct. A driver who overtakes on a blind curve knowing that something may be coming is rash; a driver who does not look at all is negligent.
• The two shade into one another, and in practice the charge is laid in the alternative and the finding may be of either, the statutory provisions using the words disjunctively.

3. Where the Bharatiya Nyaya Sanhita, 2023 Uses Both Words

• Section 106(1) reduces the punishment for a registered medical practitioner acting in the course of a medical procedure, which is a legislative recognition of the concern expressed in Jacob Mathew v. State of Punjab about the prosecution of doctors for professional error.
• Section 106(2) is new in substance, attaching a much heavier punishment to the combination of rash and negligent driving with flight from the scene or a failure to report.
• Section 125 grades the offence by the consequence, the punishment rising as the harm rises from endangerment, to hurt, to grievous hurt.
• Section 281 punishes the endangerment itself, without any injury being caused, which is why it is charged together with section 125 or section 106 where injury or death follows.

4. The Threshold Between the Civil Wrong and the Offence

• The negligence which founds a civil action is not enough for a conviction. For criminal liability the negligence must be gross, of a very high degree, or the act must be done with such rashness as to import a disregard of the consequences.
• Jacob Mathew v. State of Punjab, (2005) 6 SCC 1 settles this for the professions: the accused must have done something, or failed to do something, which in the circumstances no professional in his ordinary senses and prudence would have done or failed to do, and the hazard taken must have been of such a degree that the injury was most likely imminent.
• Andrews v. Director of Public Prosecutions, [1937] AC 576 supplies the formula: a very high degree of negligence is required, and simple lack of care such as will constitute civil liability is not enough.
• The same facts may therefore found a decree in damages and no prosecution at all, and the acquittal of the accused is no bar to the civil suit, the standards of proof and of fault being different: TORT 101.
• A conviction is admissible in the civil proceeding but not conclusive, and the civil court forms its own view.

5. Rashness, Negligence and the Degrees Above Them

• The boundary that matters in practice is the one between rashness and knowledge. Sections 106, 125 and 281 apply only where the act is not culpable homicide, so the moment the accused is shown to have known that death was the likely result, the case moves out of this group of offences altogether.
• In driving cases this is the difference between a prosecution under section 106 and one for culpable homicide, and it turns on whether the manner of driving showed a mere disregard of risk or an awareness that death would probably follow.

6. Why the Distinction Is Kept Although the Provisions Use Both Words

• The statutory provisions are disjunctive, so a conviction may rest on either, and it might be thought that the distinction has no work to do.
• It matters to the charge and to the evidence. Rashness is proved by showing that the risk was obvious and was nevertheless run; negligence by showing what a prudent person would have done. The two require different material, and a charge framed on one footing and proved on the other invites an argument about prejudice.
• It matters to sentence. Rashness is ordinarily treated as the graver fault, and a finding of conscious risk taking will be reflected in the punishment within the same section.
• It matters to the civil claim that follows, since a finding of rashness supports a plea of gross negligence, which in turn bears on exemption clauses, on exemplary damages and on the construction of an insurance policy which excludes deliberate or reckless acts.
• And it matters to the boundary with culpable homicide, because the enquiry into what the accused adverted to is the same enquiry that decides whether he had the knowledge that takes the case out of these sections.

7. The Position Stated Shortly

1. Negligence is inadvertence: the accused did not think of the risk and failed to foresee what he ought to have foreseen.

2. Rashness is advertence followed by indifference: he foresaw the risk and ran it, hoping it would not materialise.

3. Rashness corresponds to what the common law calls recklessness, and is ordinarily the graver fault.

4. Section 106(1) of the Bharatiya Nyaya Sanhita, 2023 punishes causing death by a rash or negligent act with up to five years, and a registered medical practitioner with up to two years.

5. Section 106(2) punishes causing death by rash and negligent driving followed by flight from the scene or a failure to report, with up to ten years.

6. Section 125 grades the offence by the consequence, and section 281 punishes rash or negligent driving on a public way without any injury being required.

7. The negligence that founds a civil action is not enough for a conviction; it must be gross, of a very high degree, or accompanied by such rashness as imports a disregard of consequences.

8. Jacob Mathew v. State of Punjab and Andrews v. Director of Public Prosecutions state the threshold.

9. These offences apply only where the act does not amount to culpable homicide, so knowledge that death was likely takes the case out of them.

10. The distinction affects the charge, the evidence, the sentence, the civil claim that follows and the boundary with culpable homicide, although the provisions use the words disjunctively.