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Thread: what is negligence ? What are its different theories

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    Theories Of Negligence
    Q what is negligence ? What are its different theories ? Discuss in detail. (2003) (2003/S) (2002) (2001) (2004/A) (2005/A)
    Q What are subjective and objective theories of negligence? (1995) (1993)

    1. Introduction:

    Negligence in the breath 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 to one ‘s conduct and its consequences whenever a person is under a duty to take care, he is bound to take that amount of care which is considered reasonable under the circumstances.

    1. 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 in a no sense a positive idea and has nothing to do with a state of mind.”

    1. Kinds of Negligence:

    Negligence is of two kinds:
    (i) Advertent Negligence
    (ii) Inadvertent Negligence
    (I) Advertent:
    It is commonly called willful negligence or recklessness. In this case, the harm done is foreseen as probable but in 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 he knocks against the same.
    (i) Negligence and Inadvertence:
    According to some jurists, all negligence consists in inadvertence. An act is done negligently when the done did not know that the act was wrong but could have found out if he had tried to do so.
    Criticism by Salmond:
    Saimond raises two objections against this view.
    a. All Negligence is Not Inadvertent:
    According to slmound, all negligence is not inadvertent. Even if a thing is known to be wrong, I may do the same with he hope that it will not result in e. g . driving a fast car though a crowded street.
    b. All Inadvertence is Not Negligence:
    According to Salmond, all inadvertence in not Negligence. I can not negligent if I take full care which can reasonably be expected under the circumstances.

    1. Culpable Negligence:

    Carelessness become culpable when law imposes a duty of being careful. While measuring a degree of carelssness two things are taken into consideration and those 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 not such thing in civil law as a legal duty to take care and therefore as 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 done intentionally it is also a civil wrong if done negligently. When there is a legal duty not do a thing on purpose, there is commonly a legal duty to take care not to do it accidentally. No general principle can be jaid down as to the existence of this duty for it is a by brid compounded of an element of law and an element of fact.
    Donoghue vs Stevenson :
    Facts:
    A manufacture of ginger beer sold to a retailer ginger been in bottle which contained the decomposed remains of a dead snail that fact was not known to the manufacture.
    Held:
    It was held that the manufacture owed a duty to take care that bottle did not contain any noxious matter and he was liable if the duty was broken.
    (II) Standard Of Care:
    According to Salmond ,English law recognizes only one standard of care and only one degree of negligence . when ever a person is under a duty to take care at all, he is bound to take that amount of it which is considered reasonable 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 of which human nature is capable.
    b. Amount of care which would be reasonable in the circumstances of the particular case
    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 a reasonable man would do or the doing of that which a reasonable man would not do.
    (ii) Factors Determining Standard of Care:
    The standard of care cannot be predetermined. It is a variable thing which varies form case to case and 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 other are existed by the act, and
    b. The amount of benefit to be derived form the act.
    Illustration:

    If the driver of a car drives it at the speed of 40 miles an hour in the city, he considered to be guilty of negligence as the danger of accident in 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 negligence as the benefit enjoyed by the public on account of high speed are much greater than the risk of accident.

    1. 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 negligent wrongdoer is one who dose not know that his act is wrong but who would have if had not been mentally indolent.
    Criticism:
    Salmond points out that there may be advertent or willful negligence as where a person sees the conseques of his act and in spite of that recklessly dose it without intending those consequence.
    (II) Holnad ‘s Theory:
    According to Holand, negligence is of two kinds, gross negligence 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 of negligence. According to him, negligence is purely subjective. It relates to the state of mind. It is a mental condition. Negligence consists in the mental attitude of under indifference with respect to one ‘ s conduct and its consequences. The essence of negligence is not inadvertence which may or may not be due carelessness but carelessness which may or may not result in inadvertence.
    (IV) Objective Theory:
    According to this view, negligence is not a state of mind but 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 form unreasonably dangerous kinds of conduct. This theory finds the support form the fact that in the law of Torts, negligence consists in failure to take such care, which ordinarily prudent man would take in circumstance.
    According to Clark and lindsell :
    “ Negligence consists in and omission to take such care as under the circumstances is it legal duty of a person to take.”
    Criticism:
    Salmond points out that negligent conduct differs form negligence negligent conduct is a course of action which is the result of negligence. It is an objective fact which results form a state of mind.
    (V) Reconciliation Of Theories:
    Neither the objective nor the subjective theory is correct. Negligence is both subjective. They Emphasize different aspects of negligence. An contrasted with wrongful intention the negligence is subjective. As contrasted with inevitable accident, negligence is objective.

    1. Conclusion:

    To conclude, I can say, that negligence is nothing short of extreme carelessness. Carelessness excludes wrongful intention. A thing which is intended cannot be attribute to carelessness. Negligence does not necessarily consist in thoughtlessness or inadvertence. It is true that it is the commonest form of negligence but is not the only form.

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    thanks for posting this question i Regards Sohail Ahmad

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