Q What do you understand by negligence? Elaborate the theories of negligence ?
Ans.
1. Introduction:
Negligence is the breach of duty to take care. It is carelessness in a matter in which carefulness is made obligatory by law. It essentially consists in the mental attitude of under indifference with respect is one, conduct and its consequences whenever a person is under a duty to take care, he is bound to take that amount of case which is considered reasonable under the circumstances.
2. Definition Of Negligence:
I. According To Salmond:
:Negligence is the state of mind of under indifference towards one, s conduct and its consequences.”
II. According To Wiles:
:Negligence is the absence of such care as it was the duty of the defendant to use.”
III. According To Austin:
“Negligence is the breach by omission of a positive duty.”
IV. According To Clark:
“Negligence is the omission to take such care under the circumstances it is the legal duty of a person to take, it is no sense a positive idea and has nothing to do with a state of mind.”
3. Kinds Of Negligence:
Negligence is of two kinds:
I. Advertent Negligence
II. Inadvertent Negligence
I. Advertent Negligence:
It is commonly called willful negligence or recklessness. In this case, the harm dose is foreseen as probable but is not willed e.g., rash driving on a road.
II. Inadvertent Negligence:
Inadvertent negligence can be called simple negligence. In this case, the harm done is neither foreseen nor willed e.g., a drunkard is walking along the road and he breaks a shop window as the knocks against the same.
(i) Negligence and Inadvertence:
According to some jurists, all negligence consists in inadvertence. An act is done negligently when the dose did not know that the act was wrong but could have found out if he had tried to do so.
Criticism by Salmond:
Salomnd raises two objection against this view:
(a) All negligence is not inadvertent:
According to salmond all negligence is not inadvertent. Even if a thing is known to be wrong, I may do the same with hope that it will not result in wrong e.g., driving a fact car through a crowded street.
(b) All inadvertence is not negligence:
According to salmond, all inadvertence is not negligence I cannot negligent if I take fall care which can reasonably be expected under the circumstances.
4. Culpable Negligence:
Carelessness becomes culpable when law imposes culpable while measuring a degree of carelessness two things are taken into consideration two are the degree of the seriousness of the consequences possible and the extent to which those consequences were probable.
I. Duty Of Care:
It was thought at one time that there was no such thing in civil law as a legal duty to take care and therefore no such legal duty to the plaintiff by the defendant.
Salmond ,s view:
In general, we may say that whenever an act would be a civil wrong if dose intentionally it is also a civil wrong if done negligently. When there is a legal duty not to do a thing on purpose, there is commonly a legal duty to take care not to do it accidentally. No general principle can be laid down as to the existence of this duty for it is a hybrid compounded of an element of law and an element of fact.
“Donoghue vs. Stevenson”:
Facts:
A manufacture of ginger beer to a retailer ginger been in bottle which contained the decomposed remains of dead snail fact was not know to the manufacturer.
Held:
It was held that the manufacturer owed a duty to take care that the bottle did not contain noxious matter and he was liable if the duty was broken.
II. Standard Of Care:
According to salmond, English recognizes only onestandard of care and only one degree of negligencewhenever a person is under a duty to take care to all, he is bound to take that amount of it which is consideredreasonable under the circumstances and the absence of which is culpable negligence.
(i) Standard of care which may possibly adopt:
It is possible to adopt either of the two standards of care, want of which amounts to negligence.
(a) Highest degree of care which human natural is capable.
(b) Amount of care which would be reasonable in the circumstances of the particular care.
The first standard is rejected and the second standard is accepted in actual practice. Law requires not what is possible but what is reasonable under the circumstances. Theoretically negligence is the omitting of that which areasonable men would do or the doing of that which areasonable men would not do.
(ii) Factors Determining Standard of care:
The standard of care cannot be predetermined. It is a variable thing which varies from care to case and time to time. While determining the amount of care necessary in any particular case, two factors must be taken into consideration.
(a) Magnitude of risk to which others are existed by the act; and
(b) The amount of benefit to be derived from the act
Illustration:
If the driver of a car drives it at the speed of 40 miles an hour in the city, he is considered to be guilty of negligenceas the danger of accident is much greater than the benefit derived by the car driver. But if a train is run at the speed of 50 miles an hour, it is not considered to be negligenceas the benefit enjoyed by the public on account of high speed are much greater than the risk of accident.
5. Theories Of Negligence:
Following are the theories of negligence.
I. Austin’s Theory:
Negligence consist essentially in inadvertence. It consists in a failure to be alert or vigilant. A negligence wrong-doer is one who dose not know that his act is wrong but who would have know if he had not been mentally indolent.
Criticism:
Salmond points out that there may be advertent or willfulnegligence as where a person sees the consequences of his act and inspite of that recklessly does it without intending those consequences.
II. Holland’s Theory:
According to Holland, negligence is of two kinds, grossnegligence and simple negligence.
Criticism:
These distinctions are based on Roman law and are not recognized by English law.
III. Subjective Theory:
Sir John Salmond has propounded the subjective theory ofnegligence. According to him, negligence is purely subjective. It relates to the state of mind. It is a mental attitude of undue indifference with respect to one’sconduct and its consequences. The essence of negligenceis not inadvertence which may or may not be due carelessness which may or may not result in inadvertence.
IV. Objective Theory:
According to this view, negligence is not a state of mindbut a particular type of conduct. It is a breach of the duty of taking care against the harmful results of one’s actions, and to refrain from unreasonably dangerous kinds ofconduct. This theory finds the support from the fact that in the law of torts, negligence consists in the failure to take such care, which ordinarily prudent man would take in circumstances.
According to Clark and Lindsell:
“Negligence consists in the omission to take such care as under the circumstances it is the legal duty of a person to take.”
Criticism:
Salmond points out that negligence conduct differs fromnegligence. Negligent conduct is a course of action which is the result of negligence. It is an objective fact which results from a state of mind.
V. Reconciliation Of Theories:
Neither the objective nor the subjective theory is correct. Negligence is both subjective and objective. They emphasize different aspects of negligence. As contrasted with wrongful intention the negligence is subjective. As contrasted with inevitable accident, negligence is objective.
6. Contributory Negligence As A Defnce:
Contributory negligence is negligence in not avoiding the consequences arising from the negligence of some other person, when means and opportunity are afforded to do so. It is the non-exercise by the plaintiff of such ordinary care, diligence and skill as would have avoided the consequences of the negligence of the defendant. Contributory negligence is a complete defence for the defendant and it rests upon the view that though the defendant has in fact been negligence, yet the plaintiff has by its own carelessness served the casual connection between the defendant’s negligence and the accident which his occurred, and that the defendant’s negligence accordingly is not the true proximate cause of the injury one who has by his own negligence contributed to the injury of which he complain cannot maintain an action against another in respect of it.
According to Lord Halsbueg:
The doctrine of contributory negligence is merely a special application of the maxim that where both parties are equal to blame, neither can hold the other liable.
7. Conclusion:
To conclusion, I can say that negligence is nothing short of extreme carelessness. Carelessness excludes wrongful intention. A thing which is intended cannot be attributed is carelessness. Negligence dose not necessary consist in thoughtlessness or inadvertence. It is true that it is the commonest from of negligence but it is not the only form
Ans.
1. Introduction:
Negligence is the breach of duty to take care. It is carelessness in a matter in which carefulness is made obligatory by law. It essentially consists in the mental attitude of under indifference with respect is one, conduct and its consequences whenever a person is under a duty to take care, he is bound to take that amount of case which is considered reasonable under the circumstances.
2. Definition Of Negligence:
I. According To Salmond:
:Negligence is the state of mind of under indifference towards one, s conduct and its consequences.”
II. According To Wiles:
:Negligence is the absence of such care as it was the duty of the defendant to use.”
III. According To Austin:
“Negligence is the breach by omission of a positive duty.”
IV. According To Clark:
“Negligence is the omission to take such care under the circumstances it is the legal duty of a person to take, it is no sense a positive idea and has nothing to do with a state of mind.”
3. Kinds Of Negligence:
Negligence is of two kinds:
I. Advertent Negligence
II. Inadvertent Negligence
I. Advertent Negligence:
It is commonly called willful negligence or recklessness. In this case, the harm dose is foreseen as probable but is not willed e.g., rash driving on a road.
II. Inadvertent Negligence:
Inadvertent negligence can be called simple negligence. In this case, the harm done is neither foreseen nor willed e.g., a drunkard is walking along the road and he breaks a shop window as the knocks against the same.
(i) Negligence and Inadvertence:
According to some jurists, all negligence consists in inadvertence. An act is done negligently when the dose did not know that the act was wrong but could have found out if he had tried to do so.
Criticism by Salmond:
Salomnd raises two objection against this view:
(a) All negligence is not inadvertent:
According to salmond all negligence is not inadvertent. Even if a thing is known to be wrong, I may do the same with hope that it will not result in wrong e.g., driving a fact car through a crowded street.
(b) All inadvertence is not negligence:
According to salmond, all inadvertence is not negligence I cannot negligent if I take fall care which can reasonably be expected under the circumstances.
4. Culpable Negligence:
Carelessness becomes culpable when law imposes culpable while measuring a degree of carelessness two things are taken into consideration two are the degree of the seriousness of the consequences possible and the extent to which those consequences were probable.
I. Duty Of Care:
It was thought at one time that there was no such thing in civil law as a legal duty to take care and therefore no such legal duty to the plaintiff by the defendant.
Salmond ,s view:
In general, we may say that whenever an act would be a civil wrong if dose intentionally it is also a civil wrong if done negligently. When there is a legal duty not to do a thing on purpose, there is commonly a legal duty to take care not to do it accidentally. No general principle can be laid down as to the existence of this duty for it is a hybrid compounded of an element of law and an element of fact.
“Donoghue vs. Stevenson”:
Facts:
A manufacture of ginger beer to a retailer ginger been in bottle which contained the decomposed remains of dead snail fact was not know to the manufacturer.
Held:
It was held that the manufacturer owed a duty to take care that the bottle did not contain noxious matter and he was liable if the duty was broken.
II. Standard Of Care:
According to salmond, English recognizes only onestandard of care and only one degree of negligencewhenever a person is under a duty to take care to all, he is bound to take that amount of it which is consideredreasonable under the circumstances and the absence of which is culpable negligence.
(i) Standard of care which may possibly adopt:
It is possible to adopt either of the two standards of care, want of which amounts to negligence.
(a) Highest degree of care which human natural is capable.
(b) Amount of care which would be reasonable in the circumstances of the particular care.
The first standard is rejected and the second standard is accepted in actual practice. Law requires not what is possible but what is reasonable under the circumstances. Theoretically negligence is the omitting of that which areasonable men would do or the doing of that which areasonable men would not do.
(ii) Factors Determining Standard of care:
The standard of care cannot be predetermined. It is a variable thing which varies from care to case and time to time. While determining the amount of care necessary in any particular case, two factors must be taken into consideration.
(a) Magnitude of risk to which others are existed by the act; and
(b) The amount of benefit to be derived from the act
Illustration:
If the driver of a car drives it at the speed of 40 miles an hour in the city, he is considered to be guilty of negligenceas the danger of accident is much greater than the benefit derived by the car driver. But if a train is run at the speed of 50 miles an hour, it is not considered to be negligenceas the benefit enjoyed by the public on account of high speed are much greater than the risk of accident.
5. Theories Of Negligence:
Following are the theories of negligence.
I. Austin’s Theory:
Negligence consist essentially in inadvertence. It consists in a failure to be alert or vigilant. A negligence wrong-doer is one who dose not know that his act is wrong but who would have know if he had not been mentally indolent.
Criticism:
Salmond points out that there may be advertent or willfulnegligence as where a person sees the consequences of his act and inspite of that recklessly does it without intending those consequences.
II. Holland’s Theory:
According to Holland, negligence is of two kinds, grossnegligence and simple negligence.
Criticism:
These distinctions are based on Roman law and are not recognized by English law.
III. Subjective Theory:
Sir John Salmond has propounded the subjective theory ofnegligence. According to him, negligence is purely subjective. It relates to the state of mind. It is a mental attitude of undue indifference with respect to one’sconduct and its consequences. The essence of negligenceis not inadvertence which may or may not be due carelessness which may or may not result in inadvertence.
IV. Objective Theory:
According to this view, negligence is not a state of mindbut a particular type of conduct. It is a breach of the duty of taking care against the harmful results of one’s actions, and to refrain from unreasonably dangerous kinds ofconduct. This theory finds the support from the fact that in the law of torts, negligence consists in the failure to take such care, which ordinarily prudent man would take in circumstances.
According to Clark and Lindsell:
“Negligence consists in the omission to take such care as under the circumstances it is the legal duty of a person to take.”
Criticism:
Salmond points out that negligence conduct differs fromnegligence. Negligent conduct is a course of action which is the result of negligence. It is an objective fact which results from a state of mind.
V. Reconciliation Of Theories:
Neither the objective nor the subjective theory is correct. Negligence is both subjective and objective. They emphasize different aspects of negligence. As contrasted with wrongful intention the negligence is subjective. As contrasted with inevitable accident, negligence is objective.
6. Contributory Negligence As A Defnce:
Contributory negligence is negligence in not avoiding the consequences arising from the negligence of some other person, when means and opportunity are afforded to do so. It is the non-exercise by the plaintiff of such ordinary care, diligence and skill as would have avoided the consequences of the negligence of the defendant. Contributory negligence is a complete defence for the defendant and it rests upon the view that though the defendant has in fact been negligence, yet the plaintiff has by its own carelessness served the casual connection between the defendant’s negligence and the accident which his occurred, and that the defendant’s negligence accordingly is not the true proximate cause of the injury one who has by his own negligence contributed to the injury of which he complain cannot maintain an action against another in respect of it.
According to Lord Halsbueg:
The doctrine of contributory negligence is merely a special application of the maxim that where both parties are equal to blame, neither can hold the other liable.
7. Conclusion:
To conclusion, I can say that negligence is nothing short of extreme carelessness. Carelessness excludes wrongful intention. A thing which is intended cannot be attributed is carelessness. Negligence dose not necessary consist in thoughtlessness or inadvertence. It is true that it is the commonest from of negligence but it is not the only form
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