Understanding the term Negligence

Negligence in tort law means omitting to do an act, which a reasonable man would do or doing such an act which a prudent or reasonable person wouldn't have done if he had been in the same situation. In other words negligence is the person's duty of care, which he did not do, which has resulted in injury to another person. According to Prof. Winfield negligence is a breach of duty, which results in damage, not desired by the defendant to the plaintiff.

Essential elements of Negligence-

The plaintiff has the burden to prove that the defendant:

1. Had a legal duty of care to the plaintiff;
2. This duty was breached by the defendant;
3. Because of this breach of duty, the damage was caused to the plaintiff;
4. Actual damage must result as negligence is not actionable per se

The famous case of negligence is Donoghue vs. Stevenson (1932) A.C. 532. This case is also known as the sail in the bottle case. In this case Donoghue, the plaintiff, went to a caf in paisley with a friend.

They order some refreshments along with a bottle of ginger beer. The ginger beer which was served in a dark opaque glass bottle was manufactured by the defendant, Stevenson himself. As the plaintiff's friend started pouring the remaining beer in her glass, the remains of a decomposed snail floated out of the bottle. As a result of this nauseating site and consuming the impurities of the snail, the plaintiff suffered from shock and had Gastro-enteritis.

The court held the defendant liable by stating that he was under a legal duty to take reasonable care in delivering the articles free from any defect which could cause injury to health of any person.

Types of Negligence

Here we will discuss two types of negligence

1. Civil negligence
2. Criminal negligence

Understanding Criminal Negligence and Civil Negligence

Criminal negligence is when a person does an act which is in regard to the obvious risk to the safety of human life. For an act to be criminal negligence, a prosecutor must prove that-

1. The person has acted negligently, and has created a high risk of death or bodily injury;
2. A prudent person had know the consequences of such an act

It is important to note that criminal negligence involves two things-

1. It should be more than a mistake or excusable accident: for an act to be criminal negligence, it should not merely be a simple carelessness or inattention or a mistake in judgment.
2. Knowledge of danger must be known: the defendant must know that his act has or may cause danger to other person. And a reasonable person, if had been in the same situation, would have foreseen the risk.

Examples of criminal negligence are-
Driving a car at top speed while using mobile phone
Giving a loaded gun into the hands of child
A doctor intentionally prescribes an addictive drug to a person who is allergic to that particular drug, can be held criminally negligent.

How is Criminal Negligence related to the intent of a person?
Criminal negligence is a substitute of intent. A defendant must act with criminal intent know as mens rea to be guilty in most of the criminal cases. A prosecutor has to prove that the defendant has acted deliberately, intentionally or with some other state of mind to be criminally negligent.

For example in case of murder prosecutor has to prove that the defendant has killed somebody and had knowledge of the fact that his act would cause someone's death and has done this intentionally.

Defenses for criminal negligence

To claim defenses in criminal negligence the accused has to prove that he acted out of mistake or accident. He had no idea or should not have known that his act would cause such harm and that he took reasonable care to avoid such harm.

As we know that for an act should be more than just a mistake or excusable accident, the accused has to prove that his conduct was not reckless or outrageous but the act happened due to a mistake or accident.

Also knowledge of danger is an important factor for criminal negligence. Thus an accused should prove that he did not or could not have had the knowledge of the harm that could be caused by the act.

Civil negligence is negligence where a person omits to take ordinary care which is also known as due diligence. The standard of civil negligence is measured by what a reasonable person would have done, had he been in the similar situation.

Examples of civil negligence are

• A servant in a shop, after mopping the floor forgets to put wet floor sign.
• A doctor who misreads the chart and operates a different body part of a patient.
• A pharmaceutical company launches drug in the market without testing it can be held negligent.

Difference between Criminal and Civil Negligence

Meaning
Criminal negligence is when a person does an act which is in regard to the obvious risk to the safety of human life whereas Civil negligence is negligence where a person omits to take ordinary care which is also known as due diligence. The standard of civil negligence is measured by what a reasonable person would have done, had he been in the similar situation.

Level of proof
Criminal negligence is proved in criminal case and Civil negligence is proved in civil cases which involve personal injury. In criminal cases the prosecutor has to prove that the defendant is negligent beyond a reasonable doubt.

Two things have to be proved for the act to be criminal negligence

1. The person has acted negligently, and has created a high risk of death or bodily injury
2. A prudent person had known the consequences of such an act.

Civil negligence has to be proved by a preponderance of the evidence i.e. it is proven by a balance of probabilities where the judge or jury decides whether it is more than likely that the party committed the offense that caused the injury.

Punishments or Penalties

Punishments and penalties differ in both the cases. In criminal negligence the person who is guilty can be charged with fines, restitution, probation or community services. Whereas in civil negligence cases if the defendant is found negligent he/she can be sued to pay damages which may include medical costs, lost wages, physical or emotional suffering, etc.

Conclusion
Thus we conclude that, Negligence in tort law means omitting to do an act, which a reasonable man would do or doing such an act which a prudent or reasonable person wouldn't have done if he had been in the same situation. There are two types of negligence as we discussed here i.e. Criminal negligence and civil negligence. Criminal negligence is when a person does an act which is in regard to the obvious risk to the safety of human life.

Criminal negligence is an act beyond mere mistake or excusable accident and the person should have the Knowledge of danger which the act can cause. Civil negligence on the other hand is an act where a person omits to take ordinary care which is also known as due diligence. The standard of civil negligence is measured by what a prudent person would have done, in the same case. Also there is a clear difference between both the terms. Civil and criminal negligence differ on the basis of meaning, standard of proof, penalties etc.

Written By: Anushka Hanotiya, a second year BBA.LLB student of United World School of Law.