Negligence: state of mind or conduct? The subjective and objective theories, degrees, tort and crime
LUG-102 Jurisprudence — Legal Method, Indian Legal System and Basic Theory of Law, Unit V: Liability and negligence. · LLB · 60 min
Negligence is the second form of mens rea and the commonest basis of liability in modern law. This lecture defines it (Alderson B., Winfield, Salmond, Austin), sets the subjective theory (negligence as a state of mind: Austin, Salmond) against the objective theory (negligence as conduct below the reasonable man's standard: Pollock, Holmes) as a point-by-point comparison, explains inadvertence, recklessness and the degrees of negligence, and then shows negligence at work in tort (Donoghue v. Stevenson: duty, breach, damage; contributory negligence; res ipsa loquitur), in crime (s. 106 BNS; Jacob Mathew) and against the State (Jay Laxmi Salt Works). The 2024-25 and 2025-26 papers each carried a seven-mark question on it.
Objectives
- Define negligence in the words of Alderson B., Winfield, Salmond and Austin and place it as a form of mens rea.
- Compare the subjective and objective theories of negligence and explain how Salmond and the courts reconcile them.
- Distinguish negligence from inadvertence, recklessness and intention, and explain the degrees of negligence and the Indian position on them.
- Apply the elements of the tort of negligence (duty, breach, damage), contributory negligence and res ipsa loquitur to a problem.
- Explain the criminal standard of negligence under s. 106 BNS after Jacob Mathew, and the negligence of the State after Jay Laxmi Salt Works.
Slides
- What negligence means: four definitions
- The subjective theory: negligence as a state of mind
- The objective theory: negligence as conduct
- The two theories compared, and the reconciliation
- Negligence, inadvertence, recklessness and intention
- Degrees of negligence: Roman law, England, India
- Negligence in tort: Donoghue v. Stevenson and the three elements
- Res ipsa loquitur: when the thing speaks for itself
- Negligence in criminal law: s. 106 BNS and Jacob Mathew
- Negligence of the State: Jay Laxmi Salt Works and after
- Revision: how negligence gives rise to legal responsibility
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