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Theories of Negligence

This article provides notes on theories of negligence. It covers the introduction, subjective theory, objective theory and other theories.


Under Civil law, negligence has been discussed as an element constituting liability for a tort. In the Penal Code, negligence has been discussed as an element constituting a crime. According to the Civil Code, negligence is applicable to all acts whereas, under the Penal Code, negligence is only applicable to the items for which the Criminal Code prescribes punishment against negligence. The two Codes follow their own logic in many other aspects: the effects resulting from negligence and the basic principles. On the other hand, when these codes are applied to handle social problems, in reality, it is found that the two Codes share similar concepts regarding the duty of care. Accordingly, someone can raise enormous discussion about the homogeneity and differences between the Civil Code and the Penal Code in negligence.

Reviewing the traditional and new theories of negligence is a complex process. However, in the following segment attempts have been made to enumerate the theories of negligence.

Subjective Theory of Negligence:

Negligence as a state of mind is the opposite of intention. An act is intentional when it is purposeful and done with a desire or the object of producing a particular result. An act is' negligent when it is done, not with the desire of producing a particular result, but actually producing that result by carelessness or indifference. There may be negligence as to the act as where a man thoughtlessly leaves open the gate of a field so that cattle escape into the highway or negligence as to the consequences of the act, as where a man intentionally throws a stone over a wall, careless as to the chances of anyone on the other side of the wall being hit by the stone, but without intending to hit anyone. A negligence state of mind is consistent with an intention to exercise at any rate some care, as where a motorist, in a hurry, drives quickly down a crowded street and collides with a pedestrian, here, he does not intend to have a collision and exercises as much care as he can consistently with his desire to drive quickly. His negligence consists in his carelessness indifference to exposing pedestrians to the risk of a collision because he is not prepared to subordinate his desire for speed to drive carefully. Austin is considered the exponent of this theory. He advocated that negligence is a state of mind as opposed to intention. An act is intentional when it is purposeful and done with the desire or object of producing a particular result. An act is negligent when it is done not with the desire of producing a particular result, but actually producing that result by carelessness or indifference.

In India, Justice Veeraswamy accepted this approach when in Animugham Pillai v. Ghanasoundrara Pandian; he followed Re Nidamurthi Naga Bhushnam and opined that "Culpable negligence is acting without consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the education incumbent upon him and that if he had, he would have the consciousness. The imputability arises from the neglect of the civic duty of circumspection. Rashness implies an awareness of the mind and the possible consequences, the person concerned nevertheless persisting in an act of expectation that it is in his power to meet an emergency or has taken steps to avoid or prevent any mischance or mischievous or injurious thing' happening. The essence of the rashness lies in the consciousness or awareness of mind with reference to the act done and indulging in that with a fool-hardy hope or expectation against anything untoward happening. On the other hand, negligence presupposes a negative state of mind, an absence of awareness or consciousness of what would be done, such state of mind being consequent upon failure to apply or exercise the requisite caution or precaution. "

Objective Theory of Negligence:

Negligence is often used in the sense of careless conduct without reference to any duty to take care of. The use of the term in this sense has introduced some confusion into the subject and has tended to obscure the true meaning of negligence. When there is a duty to take care, the standard of care frequently is that of the reasonable man, although this is not always so and consequently, failure to take reasonable care and negligence is sometimes used as synonymous terms regardless of whether or not there is any duty.

Pollock had adopted the view that negligence is not a state of mind but merely a type of conduct. It refers to the behaviour of a person who, although innocent of any intention to bring about the result in question, has failed nevertheless to act up to the standard set by law which is usually that of a reasonable man. Negligence is not a particular state of mind or form of mens rea at all, but a particular kind of conduct. It is a breach of duty of not taking care and “to take care” means to take precautions against the harmful result of one's actions and to refrain from unreasonably dangerous kind of conduct. As Pollock puts it "Negligence is contrary to diligence, and not describes diligence as a state of mind."

In Veeran v. T. V Krishnamoorthy, the Court observed,

"A reasonable man so regulates his conduct as to avoid producing any undesirable consequence which he forces as probable. That is the normal standard of careful conduct. If the conduct in question falls short of that standard or if the circumstances of the act are such that a reasonable man should have seen the probability of the accident then the defendant who failed to do likewise or who envisaged it and rejected it as too remote a chance has to be regarded as having been negligent. It is unnecessary in law to prove that he actually foresaw the event or the consequences. It is enough if the circumstances are such that he as a reasonable man ought to have foreseen them."

The law takes no cognizance of carelessness in the abstract. It concerns itself with carelessness only where there is a duty to take care and where failure in that duty had caused damage. Lord Wright in Lochgelly Iron and Coal Company v. McMillan said, "In strict analysis, negligence means more than heedless or careless conduct, whether as omission or commission it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty owes". Finally, in Union Of India v. Hindustan Lever Ltd the Court held that "negligence ‘is a breach of duty to take care resulting in damage to one whether in person or property. The said duty to take care may be imposed by statute or it may arise due to relationships in which one may stand to another."

Other Theories:

In the "traditional theory of negligence," the duty of care constituting negligence is regarded as the duty of foreseeing results, according to which a person should exercise extreme caution to foresee specific results. This is accepted as the common view in both the Civil Code and the Penal Code The traditional theory of negligence does not always eliminate the duty of avoiding results but interprets that violation of the duty of foreseeing will result in violation of the duty of avoidance, i.e. that these two are sequential.

On the other hand, the precedents in both civil and criminal cases tend to indicate that negligence is regarded as a violation of the duty of avoiding results, which is contrary to the common view. In light of the tendency noted in these precedent cases, the "new theory of negligence" is born, which argues that negligence is a violation of the duty of avoiding results, i.e. negligence is caused by a faulty act (an act which deviates from the standard act required for a person to live a social life). This new theory is based on the following idea: although acts with accompanying possible risks are foreseeable, e.g. when a medical doctor performs an operation, he/she can foresee a possibility of making a failure which may put a patient to death, or when a person drives a car, he/she can foresee a possibility of causing a traffic accident, the social life would be confused if none of those who perform such acts can be saved from negligence. For the acts useful for the society, the person of the act is not blamed for negligence as far as he/she has performed that act without any fault, i.e. he/she has observed the duty of avoiding results (the duty of objective carefulness). This concept is related to "the principles of reliance" or the theory of "permissible risks”.

In addition, several new theories of negligence have been proposed. In the Penal code Of American Jurisdiction, there is the "theory of apprehensive feeling" (i.e. the new version of the new negligence theory). In the new negligence theory, the foreseeability of results is required as a precondition that results may be avoidable and this foreseeability of results should be considered not merely in an abstract manner but in connection to the progress of specific causality.

On the other hand, the theory of apprehensive feeling argues that feelings of apprehension or anxiety are sufficiently enough as elements that increase strictness of the duty of avoiding results in connection with unknown risks such as environmental pollution or scandals regarding drug regulation or production, and as a precondition which acknowledges the duty of avoiding results. On the other hand, there are several opinions proposed in the area of the Civil Code. One theory is as follows: the duty of care as a precondition of negligence should be based on the ordinary person as the standard as far as the duty is related to the ordinary citizens' lives, whereas a business entity that uses high-level expertise and complicated organization to perform a large-scale business should take the duty of conducting investigations and surveys in organized and continuous manners in order to explore a possibility of occurrence of risks and prevent such risks from occurring; and if the business entity fails to conduct such surveys, resulting in the occurrence of damage or loss, then that entity is blamed for negligence on the ground of violation of the duty of care with which they had to foresee the occurrence of risks.

The second theory is as follows: negligence is separated from the issue related to subjective mental state and is an objective issue, and in other words, negligence is the issue of whether or not the person concerned has taken reasonable actions to prevent damage or loss which exceeds acceptable levels; and if such damage or loss beyond the acceptable levels should be caused, the person should be blamed for negligence whether the results are foreseeable or not.

The background to the above-described changes over time in negligence theories, i.e. from the traditional theory of negligence to the new theory of negligence and further to the new version of a new theory of negligence, is the progress in science and technology and their application to society. The new theory of negligence is intended to provide ease for users of technologies that are useful for society but also possesses potential risks such as automobiles and medical practices, for which the traditional theory of negligence may blame such users for negligence. The most recent theory of negligence is intended to impose strict liability on acts of business entities which, through the use of new technology, may cause damage to an unspecified number of the general public, e.g. environmental pollution, scandals regarding drug regulation or production, and adverse effects on the safety of foods.

Negligence theories are closely related to the progress in science and technology and their application to society, as described above. The debut and widespread use of life sciences related technology, i.e. totally novel technology, have raised the necessity of investigating negligence theories from the new points of view. For example, reproductive medical technology differs from the above-described technologies supporting the new negligence theory, such as automobiles and medical care technologies, because the application of reproductive technology may cause abstract and extensive risks. Life sciences related technology differs from environmental pollution and scandals regarding drug regulation or production, which support the most recent theory of negligence, since reproductive technology is not a type of business performed by large enterprises having complicated organizations and large-scale facilities but maybe a type of small-scale research and in some cases, as small as personal research. On the other hand, the recent progress in life sciences allows a certain technology to be applicable to not only a specific area but also every comer of the society, creating the situations in which we should not only focus on individual issues separately. This is also true for information technology, the field of science and technology that has also attained remarkable progress like life sciences related technology. The research scholar considers it necessary to keep these points in mind when investigating the regulation of life sciences related technology in the future.

Apart from the issue of whether a violation of the duty of foreseeing results is directly regarded as negligence or violation of the duty of avoiding results is regarded as a precondition of negligence, foreseeability is an important element constituting negligence. For foreseeability, there exist several opinions regarding what should work as the standard.

In accordance with the objective theory, the ordinary person's ability to exercise caution works as the standard. When results are foreseeable by the ordinary person, the duty of foreseeing results is valid even if the person who did the act concerned was not able to foresee the results. Whereas the subjective theory postulates that the ability to exercise caution of the person who does the act concerned works as the standard. But the compromise theory propounds that the ability to exercise caution of the person who does the act concerned works as the standard, but if that ability exceeds the ordinary person's ability, then the ordinary person's ability works as the standard. Precedent cases are based on the objective theory and many of the conventional views agree with the objective theory. There are different opinions regarding laws: some claim that laws prescribe standardized duties irrespective of differences in abilities among individuals and force citizens to observe such duties, through which they try to function as rules and regulations; and others claim that laws are based on the idea that unlawful acts break confidence by the person receiving damage or the third individual, although such confidence is regarded as a precondition for ordinary community life. However, those following the subjective theory criticize that whether the act conducted is blamed or not, i.e. whether or not the person who conducted the act concerned is held responsible for negligence or not, should be based on the ability to exercise caution of the person him/herself who conducted the act, as indicated by the following case: when a person drives a car and causes an accident because of a disease which is not foreseeable by the person, it is not appropriate to blame that person for negligence.

In criminal law studies, the following opinion regarding the handling of the objective theory becomes predominant: the ordinary person works as the standard when a violation of the duty of objective carefulness is evaluated as an element constituting negligence, and the person who did the act works as the standard when a violation of the duty of subjective carefulness is evaluated as responsibility(when an individual injures another individual by negligence, the awareness that the subject to be injured was a human is evaluated according to the standard of the ordinary person, but legal causes for exclusion of responsibility such as the state of unsound mind are evaluated according to the standard of the person who did the act concerned.

In this section, the research scholar cannot complete a discussion about whether these theories are right or wrong and confine himself to the matters which support these theories, instead of focusing on the question of whether they are right or wrong. First of all, let us focus on foreseeability. It seems that there has existed the assumption that what is foreseeable by the ordinary person is right when discussing foreseeability by comparing the ordinary person with the person who did the act concerned in terms of the ability to exercise caution. The compromise theory assumes that in some cases, the person who did the act concerned is superior to the ordinary person in the ability to exercise caution.

However, none of the theories regards the following as a proper assumption: irrespective of the ability to exercise caution, i.e. no matter what caution is exercised, the ordinary person is always wrong and the person who did the act concerned has always right understanding. Such reversal can frequently be noted in the field of science. In the area of life sciences in particular, in connection with the regulation of technology, we frequently encounter the following situation: what is believed right by not only the ordinary citizens but scientific associations is not considered by specific research scholars to be correct, and these research scholars perform their own studies according to their independent opinions. Results obtained by these research scholars are highly appreciated since their studies and results have originality. Even if regulation of life sciences is imposed not by restricting research but by limiting the application of technology, research scholars are the subjects to be regulated and in most cases, application of technology in their studies may be restricted. Under such circumstances, although the common idea throughout society is important, the yardstick of research scholars’ judgment is decisive. It is therefore likely that the general conditions accepted by research scholars’ groups such as scientific associations are always opposed to what research scholars individually foresee.

In the United States, state laws and precedent cases indicate that product liability actions are generally grounded on theories of negligence, strict liability and breach of warranty. Strict liability is not always the issue. The advantages of individual defendants vary depending on awarded damages. Among these theories, the concept of technology standards is primarily based on strict liability in particular.

There are four opinions for these technical standards, i.e.,

  1. traditional practices in an industry which have been commonly performed regarding the manufacture of a similar type of products to the product concerned,

  2. legal, administrative, or industrial voluntary quality and safety standards,

  3. level of knowledge attainable in fields of science and technology, and

  4. feasibility and availability from the factual and economic points of view.

There are no uniform or fixed definitions.

The above-described view does not border itself in the factum of wrong. If the abstract risk described in the above theories means effects caused by prohibited acts, effects caused by permissible acts, effects which occur naturally, etc. such as the genetic effects attributable to exposure to radiation, then it becomes possible to make an evaluation from the viewpoint of probability along with progress in science and technology, and following this, evaluation standards may be investigated for risk or safety of whole matters including the above. In Japan, from the legal point of view, none of the rules or regulations may currently incorporate this way of evaluation from the viewpoint of probability, into safety evaluation. However, it has been observed that some safety-related administration of the national government of Japan has started to try to incorporate this way of probability-based evaluation when setting safety management objectives.

Criticism against this created the new theory of negligence, according to which persons who invaded the legally protected interests (i.e. who caused a traffic accident) can escape negligence as far as they fulfil the duty of avoiding results (i.e. they observe the relevant rules and ordinances). However, if the method of probability-based evaluation becomes accepted by the society (or internationally), then the risk of facility or equipment concerned is evaluated by comparing the risk of dying others and within such comparative evaluation results, duties for persons conducting acts to fulfil are defined. The debut of such new regulation may trigger a re-examination of the existing theories of negligence or create new duties of avoiding results (new duties of care).

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