This document defines and discusses the concept of negligence. It provides definitions of negligence from two court cases. It outlines the five elements required for a cause of action in negligence: duty, duty to the plaintiff, breach of duty, consequential harm, and absence of fault by the plaintiff. The document also discusses the burden of proof in negligence cases, the nature and categories of negligence, the difference between negligence and intention, and the differences between civil and criminal negligence.

1. Negligence
MOHAMMAD RUBAIYAT RAHMAN
Lecturer of Law,
BSMRSTU
GOPALGANJ 8100

2. Definition of Negligence
• Blyth v. Birmingham Waterworks Co. (1856) LR 11 Ex:
It is the breach of a duty caused by the
omissions to do something which a reasonable man, guided by those
principles which ordinarily regulate the conduct of human affairs,
would do, or doing something which a prudent and reasonable man
would not do.

3. Definition
• Lochgelly Iron & Coal Co. v. McMullan 1934 AC 1 (HL):
Negligence means more than careless
conduct, whether in commission or omission; it properly connotes the
complex concepts of duty, breach and damage thereby suffered by the
person to whom the duty was owing.

4. Elements of Cause of Action
• To constitute negligence, following cause of actions are required:
• 1. A duty
• 2. Duty to the plaintiff
• 3. Breach of the duty
• 4. Consequential harm
• 5. Absence of fault and consent on the part of the plaintiff

5. Burden of Proof
• The plaintiff has to prove:
• 1. The circumstances were such which were capable of giving rise to a
duty of care.
• 2. the defendant would actually owed the plaintiff a duty on the facts
stated.

6. Nature
• This distinct and independent tort came into existence from 19th
century.
• Negligence: a state of mind or conduct?
• Salmond: it is a state of mind.
• Winfield: it is a conduct. It takes innumerable forms. It means
that its categories never closed.

7. Categories
• The categories would be:
• Negligence causing personal injuries or death.
• Employer’s liability to an employee
• Liability to occupiers of land to visitors
• Liability of suppliers to consumers
• Persons doing work for their clients
• Negligence causing economic loss

8. Negligence and Intention
• Negligence is conduct. It is not a mental element.
• Negligence differs from an intentional act. All intentional acts are not
negligence.
• Case: Wilkinson v. Downton (1897) LR2 QB 57
• Facts: Defendant played a practical joke upon a woman. He informed
woman about her husband’s accident. The women received a nervous
shock and fell ill.
The defendant argued that he did not expect such consequences of his act.
• Held: The defendant was held liable for the consequences of his intentional
act.

9. Civil and Criminal Negligence
• Civil and criminal negligence are different from each other.
• In criminal negligence, the amount of degree of negligence is
determinative factor. THERE MUST BE Mens Rea in criminal
negligence.
• In civil negligence, simple lack of care is sufficient.

10. Civil and Criminal Negligence
• Case: Irappa alias Virappa v. State of Karnataka (1988)
• Facts:
One of the guards of income tax raiding party while stepping
down form a vehicles handed over his loaded gun to another guard
(accused) just to hold it. The accused guard did not know that the gun
was loaded. Accidentally, a shot was fired from the gun and one person
killed. There was no intention on the part of the accused to fire.
• Held: The court held that circumstances may show lack of requisite
caution in respect of civil duty of circumspection and simple lack of
care may constitute civil liability and would not constitute criminal
liability.