Negligence: What It Is

The three elements, in outline

1. A duty of care owed to the plaintiff. Not a general duty to be careful, but a duty owed to this plaintiff in these circumstances. Chapter [The Duty of Care] works out how a court decides whether one exists.

2. A breach of that duty. Failure to come up to the standard of the reasonable person, judged objectively, with the standard raised for a professional. Chapter [Breach of Duty and the Standard of Care] works it out.

3. Damage caused by the breach, and not too remote. The plaintiff must suffer harm the law recognises, it must be caused by the breach, and it must not be too remote a consequence. Chapter [Damage, Causation and Remoteness] works it out.

All three must be proved by the plaintiff, and the burden is his throughout, subject to the evidential help res ipsa loquitur gives, which chapter [Res Ipsa Loquitur] explains.

Negligence and its neighbours

A worked example

A shopkeeper leaves a metal shutter half open across the pavement while unloading a truck. A passer-by walks into it in the evening and loses an eye.

Duty. Did the shopkeeper owe a duty to the passer-by? Yes: a person who creates a hazard on a pavement owes a duty to those who use it.

Breach. Did he fall below the standard of a reasonable shopkeeper? Leaving a sharp obstruction at head height, unmarked, in the evening, is very likely a breach.

Damage. The loss of an eye is damage the law recognises, it was caused by the breach, and it is not too remote.

Change one fact. Suppose the passer-by was running away from the police and looking behind him. That does not remove the duty or the breach; it raises contributory negligence, which reduces the damages, as chapter [Contributory and Composite Negligence] explains.

Change another. Suppose the shutter was properly marked and lit, and the passer-by walked into it because he was reading his telephone. There is then no breach at all, and the claim fails at the second element.

What it does NOT mean

It does not mean carelessness alone is actionable. Careless conduct that harms nobody, or that harms a person to whom no duty was owed, gives no action.

It does not mean an accident is negligence. Jacob Mathew says in terms that an error of judgment or an accident is not proof of negligence.

It does not mean the standard is what this defendant could manage. The standard is objective, and inexperience is no excuse.

It does not mean civil and criminal negligence are the same. The criminal degree is gross, and mens rea must be shown.

Quick revision

1. Negligence is the breach of a duty by omitting what a reasonable man would do, or doing what a prudent and reasonable man would not.
2. Jacob Mathew v. State of Punjab, AIR 2005 SC 3180: the essential components are duty, breach and resulting damage.
3. The word is used both for the independent tort and for a mode of committing other torts.
4. The plaintiff proves all three elements; res ipsa loquitur helps evidentially.
5. Criminal negligence requires a gross degree and mens rea; civil negligence does not.
6. An error of judgment or an accident is not negligence.
7. Kusum Sharma v. Batra Hospital and Medical Research Centre, (2010) 3 SCC 480, restates the same definition for medical cases.

Test yourself

1. Define negligence and state its essentials. 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 by the doing of something which a prudent and reasonable man would not do. That is the definition 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. Its essential components are three: a duty of care owed by the defendant to the plaintiff, a breach of that duty judged by the standard of the reasonable person, and damage resulting from the breach which is not too remote. All three must be proved by the plaintiff.

2. Distinguish negligence as a tort from negligence as a mode of committing a tort. As an independent tort, negligence is a cause of action with three elements, duty, breach and damage, and a plaintiff who cannot prove all three fails. As a mode of committing another tort, the word describes the manner of the defendant's conduct rather than the cause of action: a trespass may be committed negligently, a nuisance may be created negligently, and a bailee may perform his duty negligently, but in each of those the plaintiff sues on the other tort and negligence is merely an adjective. The distinction matters because the elements and the defences differ: an action in nuisance is not answered by proof that reasonable care was taken, while an action in negligence is.

3. How does criminal negligence differ from civil negligence? In degree and in mental element. Jacob Mathew v. State of Punjab, AIR 2005 SC 3180, holds that what may be negligence in civil law is not necessarily negligence in criminal law: for negligence to amount to an offence the element of mens rea must be shown, and the degree of negligence must be much higher, that is, gross or of a very high degree. The Court held that the expression rash or negligent act in the penal provision must be read as qualified by the word grossly, and that to prosecute a medical professional it must be shown that he did or failed to do something which no medical professional in his ordinary senses and prudence would have done or failed to do. It also held that res ipsa loquitur, being a rule of evidence in civil law, has at most a limited application in a criminal trial.