Theories of Negligence
By: Mutex Robb | Posted: 18th February 2011
In the modern law of tort, the word ‘negligence’ has two meanings. First, it indicates the state of mind of a party in doing an act and secondly, it means a conduct which the law deems wrongfully. In law of torts, these two meanings are considered as separate theories, namely subjective theory and objective theory.
Subjective theory of negligence refers to mental state. According to subjective theory, negligence is a state of mind. It treats negligence as a specific tort. This theory is supported by Salmond, Austin, and Winfield etc.
According to Salmond, "Negligence is culpable carelessness. Negligence essentially consists in the mental attitude of undue indifference with respect to one’s conduct and its consequences".
Salmond opines that the wrong-doer’s mental condition is also very much important in a negligent dangerous criminal act. Where a person has no professional skillfulness, he should not operate that profession until he acquires such required skill.
For example, a layman is learning motor driving and he does not get the required skillfulness in driving. He should not drive the vehicle until he acquires complete professional skillfulness. If he drives a vehicle with over-enthusiasm, and causes accidents and kills, it is his severe wrong. The law does not excuse him.
As per Austin, "In case of negligence, a party performs not an act which he is obliged; he breaks a positive duty". According to him, negligence is a faulty mental condition which is penalized by the award of damages.
He proceeded to distinguish between different states of mind, viz., rashness, heedlessness and negligence. These distinctions have no place in the modern law of torts which takes not only of the external conduct of the wrongdoer and tests it by the objective standard of the reasonable man’s care.
While the standard of care is objective and impersonal, it is for the judge or jury to say what in each case, the party concerned should as a reasonable man have contemplated or foreseen.
As there is room for diversity of opinion between one judge or jury and another, the actual application of the standard of care may for that reason be considered to have a subjective element.
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Tags: layman, profession, objective, damages, carelessness, indifference, distinctions, accidents, negligence, mental attitude, doer, states of mind, criminal act