Salmond defines negligence as,
“the mental attitude of undue indifference with respect to one’s conduct and its consequences”.
Negligence is a breach of a legal duty to take care which results in damage, undesired by the defendant to the plaintiff.
Thus, its ingredients are:
(1) A legal duty on the part of A towards B to exercise care in such conduct of A as falls within the scope of the duty;
(2) breach of that duty; and
(3) consequential damage to B.
The plaintiff cannot win his action unless he can show in liming facts from which the court can deduce a legal obligation on the part of the defendant towards the plaintiff to take care.
Duty means a restriction of the defendant’s freedom of conduct, and the particular restriction here is that of behaving as a reasonably careful man would behave in like circumstances. The decision of this is always a question of law for the Judge.
Duty of Care:
In order to have a clear conception of the duty of care involved in the term ‘negligence’ it will be worthwhile to notice a few decisions.
In Donohue v. Stevenson, X, a manufacturer of ginger-beer, had sold lo a retailer ginger-beer in an opaque bottle in which unknown to anyone were the decomposed remains of a dead snail.
Y bought the ginger-beer from the retailer and poured some of the contents of the bottle into a tumbler for a lady friend Z, who drank them and became very ill. She sued the manufacturer and it was held that the manufacturer owed her a duty to take care that the bottle did not contain noxious matter and that he was liable if the duty was broken.
The rule was followed in Grant v. Australian Knitting Mills Ltd., where the defendants were held liable to the ultimate purchaser of some pants which they had manufactured and which contained some chemical that gave the plaintiff a skin disease when he wore them. But the manufacturer is not held liable unless the defect is proved to have been due to his negligence.
Standard of Care:
Negligence is the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
Reasonable man’s behaviour is an abstract conception in any particular event or transaction, including in such behaviour obedience to the special directions which the law gives him for guidance in that connection.
Reasonable care and reasonable foresight still leave upon the judge the task of settling in each particular case what is “reasonable.” To that extent the test of the “reasonable man” is subjective and not merely objective.
The term ‘reasonable” varies with the circumstances and the English law recognises one standard of care and, therefore, one degree of negligence.
Whenever a person is under a duty to take care, he is bound to take that amount of it which is deemed reasonable under the circumstances, and the absence of this care is culpable negligence. The Roman law recognised two degrees of negligence, viz., gross negligence (culpa lata) and slight negligence (culpa Levis). The former is equivalent to wrongful intention.
Advertent or Inadvertent Negligence:
Negligence may be advertent (i.e., willful negligence or recklessness) or inadvertent (i.e., simple). In the former, the harm done is foreseen as probable, but is not willed. For instance, a drives furiously down a crowded street fully conscious of the serious risk he is thereby exposing to other persons.
He does not intend to injure any of them but knowingly and intentionally exposes them to danger. Here harm is inflicted not willfully because it is intended, nor inadvertently since it was foreseen as possible or even probable, but nevertheless negligently.
In the latter, it is neither foreseen nor willed, for harm is done without intending it, but thoughtlessly and without adverting to the dangerous nature of his act. But in both the cases there is difference as to consequences.
Some jurists attempt to make a distinction as gross negligence and slight negligence, implying by the former a higher degree of negligence than that to be found in the latter.