Negligence: What It Is

In one line

Negligence is the failure to take the care the law requires, causing damage that the law will compensate.

In the wording a student can write in an exam: negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do; its essential components are three, a duty of care owed by the defendant to the plaintiff, a breach of that duty, and resulting damage which is not too remote.

The definition the Supreme Court uses

The definition above is not a textbook writer's. It is the one the Supreme Court adopted in Jacob Mathew v. State of Punjab, AIR 2005 SC 3180, and repeated in Kusum Sharma v. Batra Hospital and Medical Research Centre, (2010) 3 SCC 480, and it is worth reproducing exactly because it is the formula an Indian court applies.

Facts. In Jacob Mathew a patient in a hospital at Ludhiana had difficulty in breathing at about eleven at night. The duty nurse was contacted and no doctor came for twenty to twenty-five minutes; when two doctors arrived an oxygen cylinder was connected which, according to the complaint, was empty, and the patient died. A first information report was lodged and the doctors were prosecuted for causing death by a rash or negligent act. They asked to have the prosecution quashed.

Held. Among the conclusions the Court summed up: negligence is the breach of a duty caused by the omission to do something which a reasonable man would do or by doing something which a prudent and reasonable man would not do, and its essential components are three: duty, breach and resulting damage. Negligence in the medical profession calls for a treatment with a difference, so that an error of judgment or an accident is not negligence and a doctor who follows a practice acceptable to the profession of the day is not liable merely because a better course existed. In criminal law the degree must be gross or of a very high degree, and res ipsa loquitur is a rule of evidence in civil law with at most a limited application in a criminal trial.

Why it matters here. It is the Indian statement of the elements, and the chapters that follow are built on the three it names.

The two senses of the word

"Negligence" is used in two ways and confusing them costs marks.

As an independent tort, which is the subject of these chapters: duty, breach, damage.

As a mode of committing another tort, or as a state of mind. A trespass may be committed negligently, and "negligent" is used of the manner in which a nuisance is created or a bailee's duty is broken. In that sense negligence is an adjective, not a cause of action.