Negligence

In one minute

Negligence is carelessness that the law blames. A person is negligent when he fails to take the care a reasonable person would take, and harm follows. It is the most common basis of liability in tort.

The test is objective. The court does not ask what the defendant felt, but whether his conduct fell below the standard of a reasonable person. In exams, this appears as "Is negligence a state of mind or conduct?" and as a short definition.

Legal provision

• No Indian statute defines civil negligence in general. The meaning comes from case law, following English decisions.
• Section 106, Bharatiya Nyaya Sanhita, 2023: causing death by a rash or negligent act is a crime. The civil and criminal standards differ.
• Statutes that make negligence actionable: the Motor Vehicles Act, 1988 (compensation claims) and the Consumer Protection Act, 2019 (deficiency in service).

Meaning and definition

In Blyth v. Birmingham Waterworks Co. (1856), Alderson B described negligence as the omission to do something which a reasonable man, guided by the considerations that ordinarily regulate human affairs, would do, or doing something which a prudent and reasonable man would not do.

Writers use the word in two ways.

• As a mode of committing a tort. Carelessness is the mental element or conduct standard in many torts, such as trespass committed by careless driving.
• As a separate tort. Negligence is a tort of its own: breach of a legal duty to take care, which causes damage to the claimant. This is the view of Winfield.

Negligence is also a standard of conduct. It describes how the defendant acted, not what he intended.

Detailed explanation

Step 1: the reasonable person

The law tests carelessness against an imaginary reasonable person, who is ordinarily prudent and has ordinary skill. The test is objective, so a defendant cannot say he did his personal best if that was below the standard.

In Vaughan v. Menlove (1837), a man built a haystack that heated and caught fire. He said he had done his honest best. The court held that the standard is the reasonable person, not the defendant's own judgment.

Step 2: what decides the standard of care

The court looks at the circumstances. These factors affect how much care is reasonable.

• Likelihood of harm. The greater the chance of harm, the more care is needed. In Bolton v. Stone (1951), a cricket ball was hit out of a ground about six times in thirty years. The House of Lords held that the risk was so small that the club was not negligent.
• Seriousness of harm. A risk of death needs more care than a risk of a scratch.
• Cost and burden of precautions. If precautions are cheap and the risk serious, a failure to take them is negligent.
• Social value of the activity. An ambulance rushing a patient may take more risk than a joyrider.

Step 3: persons with special skill

A person who professes a special skill must show the skill of a reasonably competent person in that field. A doctor is judged against a competent doctor, not against an ordinary person.

In Jacob Mathew v. State of Punjab (2005), the Supreme Court said a professional is negligent if he lacks the skill he professes to have, or fails to use it with reasonable competence. A mere error of judgment is not negligence.

Step 4: negligence needs damage and a link

Carelessness alone gives no claim. The claimant must show a duty of care, a breach, and damage caused by the breach. The legal tort of negligence is covered in its own note.

Causation matters. In Barnett v. Chelsea & Kensington Hospital (1969), a doctor sent away a patient poisoned with arsenic without examining him. The doctor was careless, but the patient would have died anyway. The claim failed because the carelessness did not cause the death.

Step 5: gross, contributory and composite negligence

• Gross negligence. A very high degree of carelessness. English law does not treat it as a separate civil category, but the idea is used in criminal law.
• Contributory negligence. The claimant's own carelessness helped cause the harm. His damages are reduced.
• composite (composite) negligence. The carelessness of two or more persons together causes the harm. Each is liable for the whole damage to the claimant.

1. 1. Did the defendant owe the claimant a duty to take care?No: no negligence.
2. 2. Did his conduct fall below the standard of a reasonable person?No: he took reasonable care. No negligence.
3. 3. Did that carelessness cause the damage?No: no liability, as in Barnett v. Chelsea & Kensington Hospital.
4. 4. ResultNegligence is established, and the claimant may recover damages.

Don't confuse: negligence, recklessness and intention

All three involve blame, but at different levels.

Point	Negligence	Recklessness	Intention
State of mind	Fails to take reasonable care. May not see the risk	Sees the risk and goes ahead	Wants the result, or knows it is almost certain
Test	Objective: the reasonable person	Partly subjective: what he saw	Subjective: what he aimed at
Example	Forgetting to fence a trench	Racing a car on a crowded road	Hitting a person to hurt him

Common mistakes

• Writing that negligence means a careless state of mind. It is a standard of conduct judged objectively.
• Saying carelessness alone makes a person liable. Duty, breach and damage caused by the breach must all be shown.
• Applying the same standard to experts and laymen. A professional is judged by the standard of his profession.
• Forgetting that the claimant's own carelessness reduces damages.
• Mixing negligence with recklessness and intention.

Apply it

Leading case laws

• Donoghue v. Stevenson (1932)

  Facts. A snail was found in a ginger-beer bottle. The drinker had no contract with the manufacturer.

  Principle. By 3 to 2, the House of Lords held that a manufacturer owes a duty of care to the consumer. Lord Atkin stated the neighbour principle.

  Why it matters. It made negligence a general basis of liability.

• Barnett v. Chelsea & Kensington Hospital Management Committee (1969)

  Facts. A casualty doctor sent away a man who had drunk arsenic without examining him. The man died.

  Principle. The claim failed, because the man would have died even with proper care. The carelessness was not the cause.

  Why it matters. It shows that careless conduct must also cause the damage.

• Municipal Corporation of Delhi v. Subhagwanti (1966)

  Facts. The old clock tower in Chandni Chowk collapsed and killed three persons.

  Principle. The Supreme Court held the Corporation liable, since the collapse of a structure under its control supported an inference of negligence.

  Why it matters. The Indian authority for proving negligence by inference.

• Spring Meadows Hospital v. Harjot Ahluwalia (1998)

  Facts. A nurse injected a child without a sensitivity test. He suffered cardiac arrest and lasting brain damage.

  Principle. The Supreme Court held that the child and his parents were consumers who could claim compensation for the hospital's deficiency.

  Why it matters. An Indian example of careless professional service.

How to write this answer in the exam

Key points to remember

• Negligence is failure to take the care a reasonable person would take.
• The test is objective, not the defendant's personal view.
• Factors: likelihood and seriousness of harm, cost of precautions, social value of the activity.
• A professional is judged by the standard of his profession.
• Carelessness must cause the damage (Barnett v. Chelsea & Kensington Hospital).
• Negligence differs from recklessness and intention.

Quick self-test

Related topics

• General Principles of Liability in Torts
• Fault
• Liability without fault
• Negligence