Negligence: Definition, Theories and Kinds

Q. Define 'Negligence'. What are its kinds and theories? [20 marks - 2023]

Definition of Negligence

Negligence is the breach of duty that is caused by the omission to do something, which a reasonable man would do under those circumstances. 

Negligence is conduct that fails to conform to the standard established by law to protect people against risk and unreasonable harm. 

According to Austin, "Negligence is the breach by omission of a positive duty."

According to Salmond, "Negligence is the state of mind of under indifference towards one ‘s conduct andits consequences."

According to Clark, "Negligence is the omission to take such care under the circumstances it is thelegal duty of a person to take it is in a no sense a positive idea and has nothingto do with a state of mind."

Theories of negligence

Subjective theory

According to Austin negligence is a faulty mental condition that is penalized by the award of damages. Negligence according to Salmond essentially consists of the attitude of undue indifference concerning one’s conduct and its consequences. Winfield also supports this theory and says that as a mental element in tortious liability negligence usually signifies a total or partial inadvertence of the defendant to his conduct and for its consequences. In exceptional cases, there may be full advertence to both the conduct and consequences but in any event, there is no desire for the consequences and this is the touchstone for distinguishing it from intention.

Objective theory

According to this theory negligence is not a particular state of mind or form of men’s Rea at all, but a particular kind of conduct. To drive at night without light is negligence because to carry lights is a precaution taken by reasonable and prudent man for the avoidance of accidents.

Essential conditions for liability of negligence

1. There should be breach of some legal duty.

2. The duty should be towards the plaintiff.

3. The breach was on the part of the defendant.

4. There was injury or damage.

Kinds of negligence

Comparative negligence

In a situation where the plaintiff is partially responsible for his injuries is called camparative negligence. As a consequence, the amount of damages to be paid is reduced by the percentage of fault. For example, in a car accident, the plaintiff is to be awarded Rs. 50000 . it has been established that the plaintiff is himself responsible for 40 percent of injuries. The amount to be awarded would be reduced by 40 percent.

Contributory negligence

Contributory negligence depends entirely on the question of whether the plaintiff could reasonably be avoided the consequences of the defendant’s negligence. In this type of negligence it lies to the plaintiff that he was completely unaware of the consequences of the negligence. On the other hand, the defendant has to prove that the plaintiff could have avoided the damage using his knowledge and skills.

Combination of comparative and contributory negligence

This is a modified version of contributory negligence. In such cases, if the plaintiff is not responsible for more than 50% of his injuries, we can recover the damages.

Gross negligence

Cases in which the negligence was so careless that it showed a complete lack of concern for the safety of others, are called gross negligence. Gross negligence is a much serious form of negligence that goes a step further than simple careless actions.

Vicarious negligence

Vicarious negligence is the liability of another person or animal. For example, if a dog causes injuries to some person, the owner of the owner would be held liable for the damages.