In civilized societies, most of the relations between the individual and the
state are governed by rules made or recognised by the state, that is, law. Law
lays down the rights and duties of the individuals. In other words, it
prescribes what one is to do and what one is not to do and what one is entitled
to get it done. A breach of these rules is called wrong. When a person has
committed a wrong, he is said to be liable.
Thus, liability is the condition of
the person who has committed a wrong. Salmond defines liability as, ‘the bond of
necessity that exists between the wrongdoer and the remedy of the wrong'. The
task of law is not finished only by laying down rights and duties; it ensures
their protection, enforcement and redress also. Therefore, liability
is a very
important part of the study of law. The kinds of liability, when one becomes
liable or in other words, when liability comes into existence and the measure of
liability are the things that must be known in this connection.
Kinds of Liability
Liability is of two kinds:
Distinction between civil and criminal liability
About the distinction between the two, different jurists have given different
An offence which is pursued at the discretion of injured
party or his representatives is a civil injury. Offences which are pursued by
the sovereign or by the subordinates of the sovereign are a crime. All absolute
obligations are enforced criminally.
Salmond's view is that
between criminal and civil wrong is based not on any difference in the nature of
the right infringed, but on a difference in the nature of the remedy applied.
One view is that the main difference between the two lies in the procedure. In
other words, their procedures are different.
Generally, four points of
distinction between the two have been put forward:
- Crime is a wrong against the society but a civil wrong is a wrong
against a private individual or individuals.
- The remedy against a crime is punishment but the remedy against the
civil wrongs is damages.
- A third difference between the two is that of the procedure. The
proceedings in case of crime are criminal proceedings, but the proceedings
in case of a civil wrong are called civil proceedings and criminal and civil
proceedings take place in two different sets of courts.
- The liability in a crime is measured by the intention of the wrongdoer,
but in a civil wrong the liability is measured by the wrongful act and the
liability depends upon the act and not upon the intention.
Points of distinction not well founded. It is submitted that most of these
points of distinction between the two are not well founded. To take the first
point, there are wrongs which are against the state or society, but they are not
considered as crime, for example, a breach of a contract by an individual made
with the state is not a crime.
In the same way, there are wrongs which are only
against a private individual but they are considered as crimes. Secondly, a
criminal proceeding does not always result in punishment and on the contrary
sometimes civil proceedings result in punishment.
in the case of
disobedience of an injunction granted by a court, punishment is awarded although
it is a civil proceeding. Thirdly, to say that the measure of criminal liability
is intention and of civil liability is the wrongful act. In modern times, mens
rea (intention) has gone under an eclipse and the question of intention has
become more a matter of form than of a substance. The distinction on the basis
of proceedings is sounder and contains substantial truth. Though in some cases
civil and criminal both the proceedings can be instituted for the same act, they
are always different and are regulated by two different sets or rules.
Remedial and Penal liability
The liability can again be classified as penal
distinction has been made on the basis of the legal consequences of the action
against the wrong, if after a successful proceeding the defendant is ordered to
pay damages or to pay a debt, or to make a specific performance etc., the
liability is called remedial liability
When after a successful proceeding the
wrongdoer is awarded punishment which may be the fine, imprisonment, etc., it is
called penal liability. The civil liability is generally remedial and the
criminal liability is penal. But this is not always true. As pointed out
earlier, the civil liability in some cases is penal. Therefore, civil liability
is remedial and penal both. So far as criminal liability is concerned, with the
very few exceptions, it is always penal.
This liability is based on the maxim ubi jus ibi remedium
(where there is a
right, there must be some remedy). When law creates a duty, it ensures its
fulfillment also. For the breach of a duty, there is some remedy prescribed by
law and it is enforced by law. With very few exceptions this is the rule.
exceptions are the following:
- The duties of imperfect obligation. This is the first exception of the
rule that a duty is enforceable by law. A time-barred debt is an example of
it. Though the debt exists in law, it is not enforceable. Therefore, there
can be no proceedings to compel its payment.
- There are some duties which are of such a nature that if once broken
cannot be specifically enforced (in respect of the act done). For example,
in a completed assault (that is actionable as a tort), the defendant cannot
be made to refrain from it (as it is already done and the original state of
things cannot be brought).
- Cases where, though the specific performance of the duty is possible,
the law, on other considerations, does not enforce the specific performance,
but instead awards damages to the plaintiff.
, if A contracts to render
personal service to B, B cannot enforce performance of this contract, (Specific
Relief Act of 1877, section 21).
The Maxim actus non facit reum, nisi mens sit rea
(the act alone does not
amount to guilt, it must be accompanied by a guilty mind) is considered to be
the condition of penal liability. Thus, there are two conditions of penal
- Guilty mind or mens rea.
Austin defines act as a ‘movement of the will'. It is bodily movement caused by
volition, a volition being a desire for a bodily movement which is immediately
followed by such movement provided the bodily member is in a normal condition.
The view of Holmes is that an act is always a voluntary muscular contraction
and nothing else
. Thus, according to both the jurists an act is a willed
movement of the body.
Salmond takes act in a wider sense. He says: ‘We mean by
it (act) any event which is subject to the control of human will'. Salmond's use
of the word ‘event' is of great significance. Even
is not an act in the
strict sense nor is movement, but Salmond by act means those events which are
subject to the control of human will.
An act consists of three stages:
For example, if we take theft, it has five ingredients:
- Its origin in some mental or bodily activity or passivity of the doer.
- Its circumstances
- Its consequences.
- Dishonest intention to take property.
- The property must be movable property.
- It should be taken out of the possession of another person.
- It should be taken without the consent of the person.
- There must be some moving of the property in order to accomplish the
taking of it.
If we examine the ingredients, in the light of the above definition, we can say
that it is an act according to the definition. Leaving the first ingredient
which is the second condition mens rea, if we arrange the other ingredients in
the light of the definition, intention to take the property is a mental activity
where the act originates. The circumstances are the property must be movable
it should be taken without the consent of that person
(ingredient 4); there must be some moving of the property in order to accomplish
the taking of it (ingredient 5).
The consequence is that the property is taken
out of the possession of another person (ingredient 3).
A theft would take place
when all the ingredients are complete. When we use the word ‘act' as condition
of penal liability, it is used in its wider sense, and not in its limited sense
as the movement of the body only. Therefore, the definition given by Salmond is
more accurate than the definition of Austin and Holland.
The law prescribes as to under what circumstances and consequences an act shall
be punishable or, in other words, a person committing the act shall be under
penal liability. The circumstances so prescribed are relevant in determining
whether a particular act (wrong) has taken place or not. A person is liable only
for his own acts and not for the acts done by others, or the events which are
independent of human activity.
Kinds of Acts
Acts are of various kinds:
- Positive and negative acts: when the wrongdoer does an act which
he should not do or in other words, he is prohibited by law not to do, it is
a positive act. When the wrongdoer does not do an act which he should do, in
other words, which he is directed by law to do, it is a negative act. Act
includes positive as well as negative act. The Indian Penal Code section 32
says In every part of this code, except where a contrary intention appears
from the context, words which refer to acts done extend also to illegal
- Voluntary and involuntary acts: If the act is a willed act, it is
called a voluntary act, but if the act is not a willed act, it is an
involuntary act. The penal liability is only for voluntary acts.
- Internal and external acts: Internal act means the act of mind
and external act means the act of body. An external act generally implies an
internal act also but an internal act is not always translated into an
external act. The term ‘act' is commonly used for external act, but it
should not be taken to be restricted to it alone. Internal act is a very
important condition in determining the penal liability.
- Intentional and unintentional acts: Intentional act means an act
which is foreseen and is desired by the doer of the act. Unintentional act
is that act which is not so foreseen or desired, or in other words, it is
not a result of any determination. Generally, by act we mean intentional
act, but intention is not always necessary condition of penal liability, and
therefore, it is not an essential element in those acts where it is not a
condition of liability. These divisions of act are not exclusive, and
sometimes an act may fall into various classes. For example, an act may be
positive, external and intentional at the same time without any conflict.
The wrongful acts are divided into two classes:
- Acts which causes some harm, and it is only on this ground that they are
- Acts which are considered as wrong due to their mischievous tendencies.
In these acts, proof of actual harm is not necessary for liability.
Damage and liability
In the first class of the wrongful acts, no cause of action arises without some
actual damage but in the second class of acts, the proof of the damage is not
necessary, the act alone makes the doer liable. Generally, though not
necessarily, the civil liability arises on the actual damage. But as crime is a
wrong against the society in general, so not only the act but the mischievous
tendencies also are considered wrongful and they are punishable.
criminal law attempt and in some cases, preparation also subjects a person to
criminal liability. In the first class of cases, actual damage does not include
every kind of damage. A damage though caused by an act of a man, is not always
wrongful. Damnum sine injuria (a damage without injury or wrongful act)
does not make a person liable.
It means that though damage has been caused, it does not amount to a wrongful
act. Such cases are of two kinds:
- The cases where though some damage is caused to an individual
nevertheless it is a gain to the society at large, for example, a
competition in trade causes damage to some of the traders, but as it is a
gain to the society, therefore, the trader whose competition causes damage
is not liable.
- The cases where though some harm is caused, it is so trivial that it is
the policy of the law not to take action against the doer.
Mens ReaSalmond's view:
Mens rea means guilty mind. It is the second condition of penal
liability. Mens rea is defined as ‘the mental element necessary to constitute
criminal liability'. In making a person criminally liable, an enquiry ‘into his
mental attitude is made Criminal intention, malice, negligence, heedlessness,
and rashness, etc. all are included in mens rea. Salmond says that mens rea
included only two distinct mental attitudes of the doer towards the deed:
It means that a man is liable only for those wrongful acts which he does either
willfully or recklessly. Sometimes, inadvertent negligence is also punishable.
Therefore, unless an act is done with any of these three mental attitudes, the
doer is not liable.
External conduct as the basis of the liability
Different legal systems have recognised, in different ways, this mens rea as the
condition of penal liability. There are degrees of mens rea and in some cases,
the punishment is determined on the basis of the degree of mens rea. In German
law, theoretically, various forms of mens rea are recognised and they are
distinguished from each other. Historically, mens rea has its origin in the idea
of blameworthiness of the wrongdoer for the wrongful act.
But as the aim of the
law is to serve more an external purpose than to enquire into the
blameworthiness, the mens rea is determined, more or less, on the basis of
external conduct. Therefore, the act is judged not from the mind of the
wrongdoer but the mind of the wrongdoer is judged from the act. The law presumes
that every man is of the average understanding and judges his act from that
What is an average or reasonable man, more or less, depends upon the
idea of the judge of an average man. If the accused is below the average, the
burden to prove it lies on him. Therefore, in modern times, mens rea does not
mean enquiry into the mental attitude of the wrongdoer from a subjective point
of view, but it simply means that the mens rea is judged from the conduct by
applying an objective standard.
Holmes makes out the same point when he says
It is not intended to deny that criminal liability, as well as civil is founded
on blameworthiness. Such a denial would shock the moral sense of any civilized
community; or, to put it in another way, a law which punished conduct which
would not be blameworthy in the average member of the community would be too
severe for that community to bear. It is only intended to point out that, when
we are dealing with the part of the law which aims more directly than any other
at establishing standards of conduct, we should expect there more than
elsewhere, to find that the tests of the liability are external, and independent
of the degree of evil in the particular person's motives or intentions. The
conclusion follows directly from the nature of the standards to which conformity
These are not only external, but they are of general application. They do not
merely require that every man should get as near as he can to the best conduct
possible for him. They require him at his own peril to come up to a certain
height. They take no account of incapacities, unless the weakness is so marked
as to fall into well known exceptions such as infancy or madness. They assume
that every man is as able as every other to behave as they command. If they fall
on any one class harder than on another, it is on the weakest. For it is
precisely to those who are most likely to err by temperament, ignorance, or
folly, that the threats of the law are the most dangerous.
Mens rea under eclipse
The mens rea has no longer remained the condition of penal liability in its
original sense and it has been replaced by standards which the law has
established. Apart from this change, there are other factors also which have
contributed in relegating the importance of mens rea as a condition of a penal
liability. Mens rea or the degree of subjective guild varies in different
classes of offences.
against a charge of kidnapping a girl under
the age of 18, an honest and reasonable belief of the accused that the girl was
over 18 is no defence. In modern times, the law has tended to establish
. A number of new offences have been created, and are being
created every year by the law in every society to ensure the smooth running of
the community life under the growing complicated social organization. The rules
governing and regulating traffic, electricity and water supply, etc., are the
rules of this kind. In the offences of these kinds for holding a person liable,
no mens rea is required. But for these offences, there is slight fine and they
involve no moral stigma.
Mens rea in Indian Penal law
In Indian criminal law, the scope of general application of the conditions of
mens rea is very limited. It is due to many reasons. Here the criminal law is
all codified and the offences are carefully defined. If mens rea is a necessary
condition for a particular offence, it is included in the very definition of the
offence and it is a part of it. There are certain offences which have been
defined without any references to mens rea or intention. In these offences, mens
rea is not a condition for a penal liability.
These offences are of a grave
nature and the act itself is very dangerous, therefore, the law does not go to
make an inquiry into the mental attitude of the wrongdoer. Such offences are the
offences against the State, counterfeiting coins, etc.
Lastly, there is a
chapter in the Indian Penal Code, ‘General Exceptions'. It prescribes all those
circumstances in which mens rea is negative and hence there is no liability.
Thus mens rea in India, is a condition of penal liability only to the extent it
is codified. However, it works as a general principle of criminal law and is
applied in matters of interpretation.
From the point of view of the mens rea, wrongs maybe divided in three classes:
- Where mens rea amounts to intention or knowledge. The wrongs in which the
mens rea is of this degree are intentional wrongs, or wrongs committed
recklessly, or there is culpable negligence.
- Negligence: In these wrongs carelessness amounts to mens rea.
- Absolute or strict liability: In cases of absolute or strict
rea is not a necessary condition of liability.
Intention is defined as the purpose or design with which an act is done. It is
the foreknowledge of the act, coupled with the desire of it, such foreknowledge
and desire being the cause of the act, in as much as they fulfill themselves
through the operation of the will. An act is intentional if, and so far as it
exists in idea before it exists in fact, the idea realizing itself in the fact
because of the desire by which it is accompanied.
Holmes says that there are two elements of intention:
- Foresight that certain consequences will follow from an act.
- The wish for those consequences working as a motive which includes the
A criminal intention means an intent to do an act whose natural and probable
ultimate consequences are criminal. Thus, when we speak that a wrong is
intentional, it means that the intention is extended to all the three elements
of the wrong (origin, circumstances and consequences). Intention
distinguished from the other similar terms.
Intention and Expectation
Intention and expectation are two different things, and the one does not
necessarily involve the other, one may intend a result though he may not expect
it. Intention is the foresight of a desired issue, howsoever improbable, not the
foresight of an undesired issue, howsoever probable. For example, if I am firing
in a direction in which there is a man, a mile away from me, I may intend to hit
him although I do not expect so. Similarly, I may expect thing without intending
it. A surgeon who is going to perform a dangerous operation might expect the
death of the patient, although he never intends it.
Mens rea, or the intention is inferred from the act. It is on the principle that
every man knows the consequences of his conduct or act. Therefore, the law will
not go to enquire as to whether the particular consequence was intended by the
doer of the act or not. If the consequence is foreseen as the certain result of
the doer's conduct, it shall be taken (by law) as intended. Thus, intention has
a two-fold meaning.
Meaning of intention:
It means either desire of the consequence of one's
conduct, or foresight of the certainty of such consequence
. But the intention
does not extend to cover the knowledge of probable events. A manufacturer, who
employs workmen, has the knowledge that some accident might take place which
might kill a workman, but this knowledge would not be taken as an intention of
the employer if any workman is a victim of an accident.
Sometimes, the intention
is imputed from the act or the consequence. If a particular act has been done,
the law will presume that the person doing it had the intention to do it without
the enquiry as to whether actually he had the intention or not. This is
called constructive intention.
In English as well as in Indian law, intention does not mean only the specific
intent, but it includes the generic intent also.
homicide (section 299 IPC) it is not necessary that the offender should intend
to kill any particular person, or he has killed the same person whom he intended
to kill. It is enough (for making him liable) if he causes the death of anyone
by doing an act with the intention of causing death....
indicates that the person actually killed may be somebody else then the person
.whose death was intended. If A digs a pit in the way through which B passes and
conceals it with grass etc. with the intention of killing B, and C passes
through that way and falls in the pit and is killed, A is liable for killing him
although he never intended it. But a person shall be liable in such cases only
when the harm intended and the harm caused are of the same kind.
Intention and motive
Though intention and motive are very close to each other, they are not the same.
Motive is called the ‘ulterior intent'. It is seldom that a man commits a
wrongful act for its own sake. The wrongdoer has some end in his mind, which he
tries to achieve through his wrongful act.
if A fires upon B, his
intention is to kill B. A intended to kill him due to reason that B was
contestant against A in an election, and he is likely to win it. A intended to
kill him for ensuring his success by removing B from the election field. This
idea of removing B from the election field is motive of A for doing the wrongful
Thus, generally in committing a wrong, the intent of the wrongdoer is two
- one is the wrongful act itself.
- the other is that on which the wrongful act proceeds and it is beyond
the wrongful act.
If we take the ‘intent' in a comprehensive sense, it may be divided into
immediate and ulterior. The immediate intent
is coincident with the wrongful
act itself. This is intention. The ‘ulterior intent' is beyond the wrongful act.
It is motive
. Intention is related to the immediate and motive to the distant
object of the act. Motive is the feeling which prompts the operation of the
will. Intention is the result of deliberation upon the motive. It is an
operation of the will directing an over act. An act may have more than one
motive behind it. For example, if A kills B, his one motive may be to remove him
from election field where he had a stronger support than A and second motive may
be to take away his (B's) property also.
Sometimes, malice is also used in law to indicate a similar meaning. It denotes
various things. Sometimes, it is used to indicate a wrongful intention, and
sometimes, it means ‘motive'. Paton says that malice
is a most unfortunate
term and it has many different meanings in English law:
- In murder, it merely means that there is present one of the various
forms of mens rea necessary to constitute the crime.
- In certain statutory offences, it means that there must be either an
intention to cause results of the particular kind prohibited by the statute,
or at least a recklessness which cares not whether the prohibited
consequence occurs or not.
- Sometimes, the word is otiose, a pleading relic, as in the allegation
that the defendant maliciously defamed the plaintiff, since even the proof
that there was no malice is not a defence.
- Sometimes, the word means spite or actual ill will or other improper
motive, for example, malice in this sense may be proved to rebut a defence or qualified
privilege in defamation.
- Sometimes, as in the phrase malitia supplet aetatem, it means that the act
was done with the knowledge of its nature.
Relevancy of Motive
Most of the wrongful acts are done with a motive. It is not very relevant in
determining the liability. It is the immediate intent (intention or negligence)
that is material in the determination of the liability. With some exceptions,
man's motives are irrelevant in determining his liability. An act which is not
unlawful otherwise will not become so because it was done with a bad motive. In
the same way, an act which is unlawful would remain the same although it might
have been done with a good and laudable motive.
If a person has stolen single paise from
the pocket of a man, the law will not exonerate him from the liability although
he stole it to purchase milk for his new born baby whose mother is dead and who
is dying in the house for want of food.
Motive is relevant only in the following
- Where it (motive) is the evidence of the evil intent: Though the proof
of the exercise of the motive is not necessary for a conviction, where it is
proved it is an evidence of the evil intent, and it is relevant in the
showing that the person, who had a motive to commit the offence, actually
committed it. Thus any fact is relevant which shows or constitutes a motive
or preparation for any facts in issue or relevant fact...
- In the criminal attempts: Motive is relevant in cases of the criminal
attempts also. Attempt is an act done with the intent to commit the offence
so attempted? A person is liable for his criminal attempts, as they show the
existence and the nature of motive or ulterior intent and thus motive
- Cases where the intent is a part of or ingredient of the offence: In
most of the offences, a particular intent forms part of the definition of
the offence. For example, theft (section 378 IPC 1860) consists in Intending to take
dishonestly any movable property out of the possession of any person without the
person's consent and moving that property in order to such taking. In such cases
‘the ulterior intent' is the source, in whole or in part, of the mischievous
tendency of the act, and is, therefore, material in law.
- In cases of jus necessitates: (Act in necessity or in other words,
necessity knows no law). Where an act has been done under necessity, the
motive is the all material consideration, and it operates as the ground of
excuse. Where one is to make an option between two acts, both of them
causing harm, the act which is to cause lesser harm should be opted without
minding the letter of the law. It would be lawful in an emergency to imperil
one or two lives in order to save a score of lives. In India, nothing is an
offence merely by reason of its being done with the knowledge that it is
likely to cause harm, if it be done without any criminal intention to cause
harm, and in good faith for the purpose of preventing or avoiding other harm
to person and property under IPC, 1860,
- Motive is taken into consideration in determining the punishment: Though
a good motive is no defence against conviction, it is considered in determining
the sentence, and if a good motive is there, a lighter punishment is awarded.
The ulterior intent or motive
is seldom relevant in determining the civil
liability. The law looks to the act alone and not to the motives from which it
proceeds. But there are certain exceptions to this principle. These are cases
where it is though expedient in the public interest to allow certain specified
kinds of harm to be done to individuals, so long as they are done for some good
and sufficient reason, but the ground of this privilege falls away as soon as it
is abused for bad ends. Therefore, in such cases, motive or malice is a very
essential element in the cause of the action. Defamation and malicious
prosecution are the wrong of this nature.
Negligence is the second form of the mens rea. The offences in which mens rea is
a necessary element, the wrongful intention or negligence will have to be proved
on the part of the person who committed the wrongful act to make him liable.
Intention and negligence both are mental attitudes which a person has towards
the consequences of his act. When a person does an act foreseeing and desiring
the consequences, he is said to have the intention to do the act.
not the doing of an act which one is under a duty to do, and it causes risk,
danger or harm. Such negligence is wrongful and is called culpable negligence;
and in many cases, it is a condition for penal liability. The negligence is
defined as ‘the absence of such care as it was the duty of the defendant to use
(Gill v. General Iron Screw Colliery Co
. (1886) L.R. 1C.P). Negligence and
wrongful intent are two Contrasted and mutually inconsistent mental attitudes of
a person towards his act and its consequences. A person who causes a consequence
intentionally cannot be said to have caused it negligently also, and vice versa.
Though at times, it may be difficult to make a distinction between them, they
are two separate and distinct attitudes of mind.
Negligence is of two kinds:
(a) Advertent negligence:
- Advertent negligence.
- Inadvertent negligence.
It is called wilful negligence or recklessness also.
In this negligence, the harm done is foreseen as possible or probable, but it is
not willed. For example, a person who drives furiously in a crowded street and
causes injury or harm to persons commits it by advertent negligence. For legal
purposes, such negligence is classed with intention.
(b) Inadvertent negligence or simple negligence:
The negligence which is a
result of ignorance, thoughtlessness or forgetfulness is inadvertent negligence.
In such negligence, the harm caused is neither foreseen nor wilful. For example,
a doctor who treats a patient improperly through negligence, or forgetfulness is
guilty of inadvertent negligence.
No duty, no negligence; Criminal and Civil law:
As the negligence is the
omission to take such care as under the circumstances, it is the legal duty of a
person to take
(Indian Penal Code 1860, Section 304-A) where there is no such
duty, there can be no negligence. In different legal systems, different duties
have been imposed upon individuals. In the criminal law, negligence is a
condition of liability only in exceptional cases.
Generally, crimes are wilful
or intentional wrongs, therefore, the question of negligence rarely arises.
However, there are cases where negligence is a condition of criminal liability.
For example, negligent homicide is a criminal offence.
In civil wrongs now
distinction is drawn between the two forms of mens rea, that is, the intention
and negligence, and with very few exceptions when an act would be a civil wrong
if done intentionally, it is a civil wrong if done negligently also. The
exception to this rule is the case where a person is civilly responsible for
doing harm wilfully, but is not bound to take any care not to do it.
not for example, deceive another by any wilful or reckless falsehood, but unless
there is some special ground of obligation in the case he is not answerable for
false statements which he honestly believes to be true, however negligent he may
be in making them.
Standard of care: negligence is not taking care, where there is a duty to take
care. The carelessness, unlike the intention, is of various degrees. The degree
of negligence is determined on the basis of the magnitude and probability of the
wrong. The greater the evil is, and there is more probability of its taking
place, the greater is the carelessness on the part of the person who creates the
danger. However, there are certain practices or acts to which people are
accustomed and they are continued in public interest. If one does in the general
way in which it is being done, he is not considered as negligent.
by driving trains at fast speeds, sometimes at a rate of 60 miles an hour, a
number of fatal accidents have been caused which could have been avoided by
reducing the speed rate, but it can be reduced at the cost of public
convenience, therefore in being negligent the railways are not guilty of
Care of a reasonable man:
The standard of care which the law desires from a
person is the care of reasonable man'
or of an ordinary prudent man
. It was
said that ‘negligence is the omitting to do something that a reasonable man
would do, or the doing something which a reasonable man would not do (Blyth
Pollock v. Birmingham Water Works Co
., (1856) 25 L.J Ex. 213). Holmes is also of
the same view.
He says that:
when the question of defendant's negligence is left
to jury, negligence does not mean the actual state of the defendant's mind, but
a failure to act as a prudent man of average intelligence would have done. He is
required to conform to an objective standard at his peril.
not mean uniform standard in every case, but it varies according to the nature
of the act. For example, the standard of a care for a physician is what a
reasonable physician would do, and if he does not take care of the standard, he
is guilty for negligence. In the same way, the standard of the care required
from a motor car driver is what a reasonable motor car driver would do.
person practices a particular profession without having the competence and skill
of that profession and thus causes harm, he is guilty of negligence. A person
who practices a profession must have the average skill and efficiency of that
profession. Thus, the standard of a care is the care that is expected from a
reasonable or prudent man, and a person who does not keep this degree of the
care is guilty of negligence in the eye of law.
As the standard of care is one,
the degree of negligence is also one. Sometimes, negligence is said to be of
various degrees, and a distinction is made between the various degrees. It is
submitted that such a distinction is only theoretical, and at the same time it
Theories of Negligence
There are two theories of negligence. One theory was propounded by Salmond.
According to this theory, negligence is a state of mind, a mental attitude. This
theory is called the subjective theory of negligence. The other theory has been
given by Fredrick. According to him, negligence is a type of conduct. This is
called the objective theory of negligence. These theories shall be discussed
(1) Subjective theory:
As mentioned earlier, this theory is given by Salmond.
His view is that negligence is culpable carelessness. Although negligence is not
the same as thoughtlessness or inadvertence, it is nevertheless essentially an
attitude of indifference. Therefore, according to this view, negligence
essentially consists in the mental attitude of undue indifference with respect
to one's conduct and its consequences. A person is made liable on the ground of
negligence because he does not sufficiently desire to avoid a particular
consequence i.e. harm.
He is careless about the consequence and does the act
notwithstanding the risk that may ensue. Winfield is also the supporter of this
theory. He says that as a mental element in tortious liability, negligence
usually signifies total or partial inadvertence of the defendant to his conduct
and for its consequences.
(2) Objective theory:
This theory says that negligence is an objective fact. It
is not an attitude of mind or a form of mens rea, but it is a kind of conduct.
Negligence is breach of duty to take care. It means that one should take
precaution against the harmful results of one's actions and he must refrain from
unreasonably dangerous kind of conduct. Pollock, the founder of the theory says
that negligence is the contrary of diligence, and no one describes diligence as
a state of mind. So it is never a mental state.
It is submitted that this view
holds good in the law of tort where negligence means a failure to achieve the
objective standard of a reasonable man. If a person failed to achieve this
objective standard, the defence on the ground of the mental state that he took,
the utmost care shall be of no avail to him. The same is the principle in the
criminal law also.
Reconciliation of the two views:
An attempt has been made to reconcile the two
contrary theories with the argument that the term negligence has two meanings,
and one theory has adopted the one meaning, and the other theory has adopted the
other meaning, and each considers that the meaning given by it is the exclusive
is, sometimes used in one sense, and sometimes, it is used
in the other sense, and therefore, its meaning depends upon the context in which
it is used.
is contrasted with intention, it is used in the
subjective sense. As the wrongful intention is a state of mind, negligence is
also a state of mind. Cases of negligence, on examination of the defendant's
mind, turn out to be the cases of wrongful intention. If a father who neglects
to provide food to his infant child and if the child dies, the father may be
guilty of wilful murder rather than of mere negligence. In the cases of this
nature, one cannot distinguish between wrongful intention and negligence without
looking into the mind of the wrongdoer, and observing his mental or subjective
attitude towards his act and its consequences. If one tries to judge them
objectively, the two classes of offences are indistinguishable.
another meaning also. When negligence
is contrasted with inevitable accident,
it means a particular kind of conduct. In cases where there is no question of
wrongful intention but the point to be determined is as to whether the wrongdoer
caused the harm without any fault on his part, or by his unintentional fault, it
is decided on the basis as to whether his conduct conformed to the standard of a
reasonable man. He is liable only when he has not taken the care which a
reasonable man would have taken. In such cases, the state of mind of the
wrongdoer is irrelevant and everything is judged objectively.
Apart from the negligence and wrongful acts, there is another class of wrongful
acts for which a person is liable irrespective of mens rea. This liability is
called the strict or absolute liability. The strict liability is an exception to
the general rule about the conditions that constitute liability. It is said that
in civil wrongs, strict liability should be the rule. The aim of civil law is to
redress the person who has suffered harm and there is no question of punishment.
Therefore, the person who suffered should be redressed without the consideration
as to whether the wrongdoer did it intentionally or negligently. This view has
no wide recognition in modern times because cases where redress is a penal
redress are considered as punishment. In such cases, the damage awarded to the
plaintiff amount to a penalty inflicted upon the defendant for which he is
Therefore, it is argued that there should be no strict liability in
civil law also. This view is supported by many English jurists, and to some
extent, it is applied in the English law. In modern times, there is a tendency
of expanding the field of strict liability. In cases where the redress is penal,
it is intended more for mending the conduct of the wrongdoer in future than it
is a penalty for subjective guilt.
Difficulty of knowing the intention: A very strong argument that is given in
favour of strict liability is that it is very difficult to procure the evidence
of intention or negligence in every case and it would make the administration of
the justice very difficult. Therefore, in some kinds of cases the law makes a
conclusive presumption of mens rea on the basis of the external conduct. It is
clear that this liability would fall very heavily upon the innocent persons.
the supporters of strict liability say that it is not so serious and hard as it
appears to be. In cases of civil wrongs, a man does a thing at his own peril;
therefore he should be liable for it in every case. In criminal law, the rule of
strict liability is applied only to a comparatively minor and trivial kinds of
offences which in many cases do not imply any moral stigma on the part of the
wrongdoer and in majority of the offences mens rea is a necessary condition for
liability. Thus, in criminal law, rule of strict liability is almost an
The strict liability may be divided into the following three headings:
- Mistake of law.
- Mistake of fact.
1. Mistake of Law:
The principle that ignorantia juris non excusat
(ignorance of law is no excuse) is followed in almost all the legal systems. A
person who has committed a wrongful act will not be heard to say that he did not
know that it was forbidden by law, or, in other words, he did not know the law.
This is an irrebuttable presumption that every person knows the law of the land.
This is an instance of strict liability. The law will not go to make an inquiry
as to whether the person taking the defence of the ignorance of law actually
knew it or not. This irrebuttable presumption or, in other words, the strict
liability is on the following grounds.
Arguments in support of the rule not convincing
- First, that law is definite and knowable and it is the duty of every
person to know the law concerning his rights and duties.
- Second, law in most of the cases is based on common sense, or in other
words, it is based on the principle of natural right and wrong which
generally every person knows. A person might not be acquainted with the
Indian Penal Code, but he knows that to kill a man intentionally or to steal
is a wrong.
- Third, there shall be evidential difficulties in accepting the defence of
the ignorance of the law. In most of the cases, the wrongdoers in the first
instance will take this defence and the court will have to enquire as to whether
the wrongdoer knew the law or not before going into the merits of the case. This
will create great difficulties before the courts and it will hamper the course
of the administration of justice.
It is submitted that grounds given in support of strict liability are not very
convincing in modern times. In a country like ours, where every citizen is
governed by the law made by the two legislatures and the rules made by the local
bodies which undergo frequent amendment also, to say that every person knows the
law is nothing but a fiction. The second argument that law is based on common
sense also does not hold much water.
In modern times, the law has grown very
complex and in many cases it has nothing to do with the common sense. Some
general rules and principles of the law are undoubtedly based on common sense,
but now most of them are based on the expediency or other things. Thus, the
strict liability that everyone knows the law is very hard and severe. However,
there are certain exceptions to this general rule.For example, one is not
presumed to know a by law until it has been duly published.
2. Mistake of fact:
The principle about it is that ignorantia facit excusat
of the fact is excuse). It means that a person is not liable for a wrongful act
if he has done it under a mistake of fact. In other words, mistake is a valid defence against a wrongful act. But this principle applies only in case of a
criminal wrong and not a civil wrong. In civil wrongs, except in few cases, the
mistake of fact is not a valid ground for discharging a person from liability.
But in criminal law, the strict liability for a mistake of fact is only in
exceptional cases (IPC Act 1860, section 76 to 79). An example of such exception
or strict liability is that if a person kidnaps a girl below 16, he is always
liable, although he honestly believed that she was above 16.
A person is not liable for an act taking place accidentally.
Accident differs from a mistake of fact. Every unintentional act is done by
mistake when the consequences of the act are intentional, the mistake is only
about the circumstances and in that respect it is unintentional.
For example, if I arrest A taking him to be B, it is a
mistake of fact. In this case the consequence that is arrest is intentional but
there is a mistake about the circumstances and I was to arrest B and not A. So
the arrest of A is unintentional. An act is said to be done accidentally when it
is unintentional in respect of its consequences also.
if I am cutting wood with an axe, and the axe slips away
from my hand and falls upon the head of a man and causes his death, it is
accident because the consequence was never desired. Accident is culpable or
inevitable. It is considered to be culpable in those cases where it could not
have taken place at all had the doer of it observed the proper care. For
example, if one drives a car above the fixed speed limit in a crowded place, and
harm or injury is caused to any person, the person so driving is liable,
although it is unintentional.
The accident is called inevitable when it could not have been avoided by the
wrongdoer and it takes place without any fault on his part. Culpable accident is
no defence, save in those exceptional cases in which wrongful intent is the
exclusive and necessary ground of the liability. Inevitable accident is commonly
a good defence in the criminal law (IPC Act, 1860 Section 80). It exonerates the
wrongdoer from the liability.
The rule in (Rylands v. Fletcher
, (1868) L.R 3 H.L. 330) and in some
other cases of that nature is that if a person accumulates or keeps a thing
which may cause danger if it escapes, he does it at his own peril and he is
strictly liable for any harm or damage that the thing causes, although it is
The general principle of law is that a person is liable for his own acts and not
for the acts of others. But in certain kinds of cases a person is made liable
for the act of another on account of his standing in a particular relationship
with that person. This liability is called vicarious liability. This kind of
liability existed in ancient times also but the grounds of liability were
entirely different from what it is in modern times.
The principles of vicarious liability in ancient times were that a person must
be made answerable for the acts of the person who are akin to him. With the
onward march of time, this principle of liability underwent a great change, and
in modern times, this liability exists in limited kind of cases. Now a person is
made liable on the grounds of expediency and policy, and not on any other
ground. The scope and the field of application of the vicarious liability shall
now be described here.
In criminal law, the general principle is that a person is
not liable for the act of another. A master is not criminally liable for the
unauthorized acts of his servant. However, there are certain exceptions to this
rule. The legislature may prohibit an act or enforce a duty in such terms as to
make the prohibition or the duty absolute; in that case the principal is liable
if the act is in fact done by his servant. Thus, a statute may impose criminal
liability upon the master as regards the acts or the omissions of his servants.
A master or owner is liable in case of public nuisance clone by his agent.
Similarly, if a principal neglects the performance of an act, which is likely
to cause danger to others, and entrusts it to the unskillful hands, he will be
in certain cases criminally liable
(IPC Act 1860, Section 154 and 155).
Civil law: Vicarious liability exists mainly in civil law. It is recognised
in civil law generally in two kinds of cases:
- A master is liable for all tortious acts of his servants done in the
course of his employment.
- The representatives of the dead person are, in certain cases, liable for
the acts of the deceased.
1. Master's liability for the acts of his servant:
Most of the jurists are of the view that the origin of the liability of the
master of his servant is in the old institution of slavery Holmes tracing the
development of the liability says that in the beginning, it was the revenge that
was the motive of the punishment. It was vengeance on the immediate offender. If
a slave committed a wrong, the master of the slave had to surrender him to the
person who had suffered the wrong.
Even the inanimate things were surrendered or forfeited if any injury to a
person took place on account of them. Later on instead of surrendering the
slave, some compensation was paid to the person suffering the injury by the
master of the slave or the thing. Thus, the master paid for the blood feud for
taking back the slave or the thing, in other words, the surrender was
substituted by compensation.
Gradually, a practice developed that the master was also made a party when an
action was brought against his servant for his wrongful act. It was only as a
matter of convenience to establish the liability of the master and to realize
the money from him. Though in course of time the institution of slavery was
abolished and the nature of the liability also changed, a master continued to
remain liable for the wrongful acts of his servants on the same analogy.
The modern jurists are of the view that the liability of the master in modern
times is not linked with the old principle of liability. The liability of the
master for the acts of his servants in modern times is of recent origin and
growth. The liability of the master for acts of his servants is based on a legal
presumption which, later on, became conclusive that the acts done by a servant
in and about his master's business are under the express or implied authority
from the master. Therefore, these acts are the acts of the master. It is this
presumption which has appeared in the shape of the employer's liability. It has
been embodied in various statutes.
The reasons of making the master liable are mainly two:
- It has evidential importance: To prove in every case of this nature that
the servant acted under the actual authority of his master would involve a
lot of difficulties and in most cases the master will escape the liability
on the ground that there was no formal authority given to the servant.
Secondly, to make masters liable for the acts of their servants makes them
to remain vigilant and cautious in respect of the acts of their employees.
- The second reason for making the master liable is his pecuniary
position: The masters are in a financial position to redress the injury
caused by the acts of their servants. It is a principle of justice that one,
who is in a position to make good the loss caused by him, or on his behalf,
should not escape the liability of paying it by delegating the exercise of
it to the agents from whom no redress can be obtained.
If a master keeps a servant at a place where he can cause mischief, the
master must be answerable for that.
2.Representatives of a dead man are in certain cases liable for the acts of
This is a second form of vicarious liability, there is no vicarious
liability in criminal law, so the representatives of a dead man are not liable
for the criminal acts done by him before his death. So far as the civil
liabilities of the deceased are concerned, most of them are transferred upon his
, a debt or damages for which a deceased was liable will have
to be paid by his representatives. Whether the representatives of a deceased
should be liable or not in cases of the penal redress which was to be made by
the deceased is a question on which there has been a difference of opinion. The
penal redress partakes the nature of punishment and compensation both. According
to the principle, the former liability should extinguish with the death of the
wrongdoer, but the latter liability survives him. The main problem was how to
transfer this liability on the representative.
The older view was that the action for the penal redress dies with the wrongdoer
and his representatives cannot be held liable for it. This view is no longer
accepted. In modern times, the representatives of a deceased are liable in case
of penal redress also and in many legal systems it has been embodied in a
statute. It is considered that although liability to afford redress ought to
depend in the point of origin upon the requirements of punishment, it should
depend in point of the continuance upon those of compensation.
Representatives are held liable on the ground that when a valuable right of a
person (against whom a wrong has been committed) has come into existence, he
should not be disappointed.
A person who has succeeded to the estate of the deceased must pay, and he is
liable to pay it on the same ground on which he is liable to pay a debt of the
deceased. Secondly, holding representatives liable will work as a deterrent. The
person who commits a wrong shall be made to think that in any case he shall have
to redress the wrong and after his death his representatives shall be liable. It
will deter a person from doing a wrong of this kind.
The measure of liability
Depends upon the theory of punishment and on the concept of the State, the
measure of the criminal liability is different in different legal systems. The
measure of the liability is determined on various considerations.
First, the measure of liability in a particular society depends on the theory,
or in other words, the aim of the punishment recognised in the society. If the
punishment is for the purpose of the retribution, the law will look into the
motive of the wrongdoer and would take it as the chief measure of the liability.
If the purpose of the punishment is to reform the wrongdoer, the measure of the
liability would be the character of the wrongdoer and soon.
Second, the measure of the liability depends upon the concept of the State and
the kind of the government in a particular society. In Nazi Germany, to be a Jew
was the gravest offence and, similarly to speak and to act against the wishes of
the dictator was a very serious crime. In a socialist State, the grave offences
are those that undermine the interest of the society.
Third, the measures of the liability also depend on the values which are
recognised in a particular society. In India, where sex morality is considered
to be a great virtue, the punishment for sexual offences has been very severe
since very early times but in England, where the sex morality is not the same as
it is in India, adultery is not an offence and in some cases seduction is a
civil wrong and the wrongdoer is liable only for compensation. Thus in modern
times, the principle is that all the offences do not involve equal guilt on the
part of the wrongdoer and all the offenders are not equally guilty for the same
This being so, the punishment for all kinds of offences and for all wrongdoers
having committed the same offence cannot be uniform. The aim of the law is to
bring the maximum good at the cost of the maximum sacrifice, therefore, in
awarding the punishment it proceeds on the same line. If the punishment is same
for assault and murder, a person who intends to cause injury to his enemy would
prefer to cause the latter kind of injury. Thus the uniform punishment for every
offence would bring more evil than good.
Similarly, the punishment is very severe such as hanging for petty thefts; it
may bring down the crimes, but the evil so prevented would be far outweighed by
that which the law would be called on to inflict in the cases in which its
threats proved unavailing.
Therefore, the different offences have different punishments and secondly, the
judge is left with ample discretion in awarding punishments. The law has
generally fixed the maximum punishment that can be awarded in a particular
offence and the judge awards the punishment within this limit taking into
consideration the nature of the guilt, and the character of the offender, etc.
In modern times, though there is a great theoretical support for the reformative
theory of punishment, in practice, the punishment to some extent, serves the
retributive purpose and in the most part the deterrent purpose.
Therefore, the factors which are taken into consideration in determining the
liability are the following:
- Motive: The motive of the offence is a very important factor in
determining the liability. If the motive to commit the offence is very
strong, the punishment must be severe, because the punishment aims at
counteracting the motives which made the offender to commit the crime.
- The magnitude of the offence: The other things being equal, if an
offence brings greater evil consequence or has greater evil tendencies, the
punishment should be severe. Some criticize this view and say that the
liability should not be determined on the basis of the evil caused to a
person, but it should be determined on the basis of the benefit derived by
the offender by his wrongful act. It is submitted that the punishment on the
basis of the magnitude of the offence greatly helps in preventing offences
and where the offender is to choose one wrongful act out of many of the same
nature, he would prefer to commit one for which there is lesser punishment.
Thus, the severe punishment for grave offence deters the wrongdoer from
- The character of the offender: The character of the offender is
also a factor in the measure of liability, in other words, it is a
consideration in determining the punishment. The offenders who have become
habitual and have undergone punishment, to them punishment loses much of its
rigour and light punishment does not deter them. Therefore, they are given
There are some other factors also which are taken into consideration in
determining the punishment. One such factor is the nature of the offence. The
offences which are inhuman and heinous deserve severe punishment. The
sensibility of the offender is also taken into consideration. A simple censor or
rebuke might hurt the sensibility of a wrongdoer who did a wrong casually in the
heat of a passion or anger and he may not commit the offence again, but to a
habitual offender the censor or rebuke will have no effect, therefore, he should
be given a severe punishment for the same offence.
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6th Edn., 2017).
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