OBJECTIVE THEORY OF NEGLIGENCE

In Blyth v. Birmingham Water Works Co., *(1856) 11 Ch 781+ Alderson states, Negligence is the omission to do something which a reasonable man guided upon whose considerations which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do. The definition by Alderson, B assumes as duty to take care; it also assumes that the degree of care is to be measured by the standard of a reasonable man. So negligence is a breach of duty to take care resulting in damage to one, whether in person or property. According to objective theory, negligence is caused by the conduct of the person, but not by his mental condition. The Courts must punish the wrong-doer in criminal or tort cases depending upon his conduct, and the quantum of the wrong done by him. The objective theory says that the mental condition of a wrong-doer cannot be seen, but his conduct can be seen openly by his conduct. The result is objective i.e. can be seen and observed by the senses.

It does not analyze the mental condition of the wrong-doer. It only analyses the effects of the wrong, and the liability of the wrong-doer, on the evidences of his conduct. Negligence in the sense of conduct refers to the behavior of a person who, although innocent of any intention to bring about the result in question, has failed nevertheless to act up to the standard set by law, which is usually that of a reasonable man. Recklessness is serious failure to act reasonably. When a statute prescribes a certain standard of behavior with a view to avoiding injury to persons, it has been said that the failure to come up to that standard is statutorily equivalent to negligence, without proof of carelessness. If a car driver drives the car on a pedestrian on the pavement or drives the car without lights in the night, the incident itself shows that the car driver negligently drove the vehicle and causes death of innocent persons. The Courts must punish the car driver for his negligence, but should not think of his mental condition or personal feelings at the time of driving.

SUBJECTIVE THEORY OF NEGLIGENCE

In the modern law of tort, the word negligence has two meanings. First, it indicates the state of mind of a party in doing an act and secondly, it means a conduct which the law deems wrongfully. In law of torts, these two meanings are considered as separate theories, namely subjective theory and objective theory. Subjective theory of negligence refers to mental state. According to subjective theory, negligence is a state of mind. It treats negligence as a specific tort. This theory is supported by Salmond, Austin, and Winfield etc. According to Salmond, Negligence is culpable carelessness. Negligence essentially consists in the mental attitude of undue indifference with respect to ones conduct and its consequences. Salmond opines that the wrong-doers mental condition is also very much important in a negligent dangerous criminal act. Where a person has no professional skillfulness, he should not operate that profession until he acquires such required skill. For example, a layman is learning motor driving and he does not get the required skillfulness in driving. He should not drive the vehicle until he acquires complete professional skillfulness. If he drives a vehicle with over-enthusiasm, and causes accidents and kills, it is his severe wrong. The law does not excuse him.

As per Austin, In case of negligence, a party performs not an act which he is obliged; he breaks a positive duty. According to him, negligence is a faulty mental condition which is penalized by the award of damages. He proceeded to distinguish between different states of mind, viz., rashness, heedlessness and negligence. These distinctions have no place in the modern law of torts which takes not only of the external conduct of the wrongdoer and tests it by the objective standard of the reasonable mans care. While the standard of care is objective and impersonal, it is for the judge or jury to say what in each case, the party concerned should as a reasonable man have contemplated or foreseen. As there is room for diversity of opinion between one judge or jury and another, the actual application of the standard of care may for that reason be considered to have a subjective element.