○ Introduction

○ Negligence refers to the failure to exercise the level of care that a

reasonably prudent person would in similar circumstances, resulting in
harm or injury to another person. In Blyth v. Birmingham Water Works
Co, Negligence was defined as the omission to do something a
reasonable man would do or doing something which a prudent or
reasonable man would not do.
○ Definitions
○ Salmond: A careless attitude towards one's actions and their results.
Willes: Not using the care that was required.
○ Austin: Failing to perform a duty by not acting.
○ Holland: Any form of carelessness causing harm, with no responsible
awareness.
○ Clark: Not taking the necessary care when legally required, unrelated
to mindset.

Forms of Negligence

• Nonfeasance:Nonfeasance refers to the failure to act when there is a

duty to do so, resulting in harm or injury. It is the omission or neglect to
take an action that one is obligated to perform.

● Example: A lifeguard at a swimming pool does not attempt to rescue a

drowning swimmer, despite having a duty to do so.

• Misfeasance: Misfeasance involves the improper performance of a

lawful act. It is when someone performs a lawful action in a way that is
harmful or injurious, often due to carelessness or lack of skill.

● Example: A surgeon performs a surgery but does so incompetently, causing

injury to the patient.

• Malfeasance:Malfeasance is the intentional commission of an

unlawful or wrongful act, especially by a public official. It involves doing
something that is outright illegal or immoral.

● Example: A government official accepts a bribe in exchange for granting a

contract, which is both illegal and unethical.
 Essentials of negligence:

The four essentials of negligence, which must be established for a

successful claim, are:

Duty of Care:

The defendant must owe a legal duty of care to the claimant. This duty
arises in various situations, such as the relationship between a doctor
and a patient, a driver and other road users, or an employer and
employees. The existence of a duty of care is often determined by the
foreseeability of harm to the claimant as a result of the defendant’s
actions or omissions.

Breach of Duty

There must be a breach of the duty of care. This occurs when the
defendant fails to meet the standard of care that a reasonably prudent
person would have met under similar circumstances. The standard of
care can vary depending on the situation and the relationship between
the parties involved.

Causation

The breach of duty must cause harm to the claimant. This involves
establishing a direct link between the defendant’s breach and the injury
or damage suffered by the claimant.Damages

The claimant must have suffered actual harm or damage as a result of

the breach. This can include physical injury, property damage, financial
loss, or emotional distress. Without demonstrable harm, a negligence
claim cannot succeed, even if the other elements are present.

Negligence and Inadvertence

Negligence is when someone is careless and causes harm, while inadvertence is

accidentally making a mistake without meaning to. Negligence often leads to legal
consequences and compensation for the injured person, but inadvertence may just
result in fixing the mistake without facing legal action. Both show the importance of
being careful, but negligence is more serious and intentional than inadvertence.

Negligence and Intention

 Negligence involves unintentional carelessness that leads to harm, while intention
refers to purposeful actions or decisions to cause harm or achieve a specific
outcome. In legal terms, negligence typically lacks the intent to cause harm but still
results in liability due to a failure to exercise reasonable care. On the other hand,
intention implies a deliberate choice to bring about a particular result, whether
positive or negative. While both negligence and intention can lead to harmful
consequences, they differ in the level of awareness and control over the outcome.
Negligence stems from oversight or lack of attention, whereas intention involves
conscious planning or decision-making.

Vicarious Negligence

Vicarious negligence, also known as vicarious liability for negligence, occurs

when one party is held legally responsible for the negligent actions of another party.
This typically arises in situations where there is a relationship between the two
parties that justifies such liability. For Example:

Employer and Employee: Employers can be held liable for the negligent acts of
their employees if those acts occur within the scope of employment.

Principal and Agent: Principals can be liable for the actions of their agents if the
actions are within the authority granted by the principal.

Parent and Child: In some cases, parents may be held liable for the negligent
actions of their minor children, although this is less common and typically more
limited.

Culpable Negligence

Culpable negligence refers to a disregard for the safety or well-being of others,

demonstrating reckless or careless behavior that results in harm or injury. It involves
a failure to exercise reasonable care or caution, often leading to legal consequences.
For example, if a driver speeds through a crowded area despite seeing people
crossing the road, that’s culpable negligence because they’re aware of the danger
but still act recklessly.

Liability for negligence

Criminal Liability: Exists only in exceptional cases, where negligence is so gross

that it becomes punishable under criminal law. Andrews v. Director of Public
Prosecutions (1937) is a seminal case where Lord Atkin emphasized the need for a
very high degree of negligence, often described as recklessness, to establish
criminal liability.
Civil Liability: More commonly, civil law addresses cases of negligence. In
Donoghue v. Stevenson, the court established the duty of care principle, holding that
manufacturers owe a duty to consumers to ensure products are safe.

Theories of Negligence

1. Subjective theory– According to Austin, negligence is a faulty mental state

that results in the penalty of damages. Although negligence isn't the same as
being thoughtless or careless, it is, in his view, mainly an attitude of
indifference. Salmond also believes that negligence involves an inappropriate
lack of concern about one's actions and their outcomes. Winfield agrees with
this idea and says that negligence, as a mental factor in tort law, usually
means the defendant was either completely or partly unaware of their actions
and the consequences. In rare cases, the defendant may fully understand
both their actions and the consequences but still not intend the outcomes.
This lack of desire for the consequences differentiates negligence from
intentional actions.
2. Objective theory- According to this theory, negligence isn't about a specific
state of mind or intent but a certain behavior. Pollock supports this idea and
writes that negligence is the opposite of being careful. No one considers
negligence as a mental state; instead, it's about actions. Negligence means
failing in the duty to be careful, which includes taking steps to avoid harm from
one's actions and avoiding unreasonable behaviour. For example, driving at
night without headlights is negligent because a reasonable and careful person
would use headlights to prevent accidents. The amount of care needed
depends on the situation, and this duty to be careful is often described as
acting like a reasonable or ordinarily prudent person.

Case Law Illustrations

● Bolam v. Friern Hospital Management Committee (1957): This case

established the "Bolam test" for professional negligence, where a medical
 professional is not negligent if they acted in accordance with a practice
accepted as proper by a responsible body of medical opinion.
● Caparo Industries plc v. Dickman (1990): Introduced a three-part test for
establishing a duty of care: foreseeability of harm, a proximate relationship
between the parties, and that it is fair, just, and reasonable to impose a duty.
● Paris v. Stepney Borough Council (1951): Highlighted the importance of
considering the seriousness of potential harm. The council was found
negligent for failing to provide goggles to a one-eyed employee, recognizing
the greater harm he could suffer.

Conclusion

○ Negligence in law involves failing to meet care standards, resulting in

harm. It includes various definitions, types, and theories.
Understanding the distinctions between different types of negligence
and the subjective and objective views helps grasp this complex legal
concept. Culpable negligence emphasizes the legal consequences of
carelessness, particularly regarding liability, making it crucial for law
students and practitioners.