Liability

CHAPTER CHAPTER XVI

LIABILITY

123. Nature of Liability

When any person commits a wrong, he is said to be liable or responsible for it. Liability or
responsibility is the vinculum juris, i e. the bond of legal necessity that exists between the
wrong-doer and the remedy of the wrong. A man's liability consists in those things which he
must do or suffer because he has failed in doing what he ought to have done. Liability has its
source in the supreme will of the State.

Liability may be, in the first place, either civil or criminal, and in the second place, either
remedial or penal, the nature of which has already been sufficiently considered in a previous
chapter on the Administration of Justice. In the case of civil or remedial liability, the direct
purpose of the law is the enforcement of a right vested in the plaintiff in civil proceedings. In the
case of criminal or penal liability, the purpose of the law, direct or ulterior, is the punishment of
the wrong-doer in criminal proceedings. The punist liability of a borrower to repay the money is
remedial, that of the publisher of a libel to be imprisoned or to pay damages to the person
injured by him, is penal. All criminal liability is penal. Civil liability, on the other hand, is
sometimes penal and sometimes remedial.

124. Remedial Liability

Remedial liability is that in which the sole intention of the law is the enforcement of the plaintiffs
right and the idea of punishment is entirely absent. Thus the liability of the borrower to repay the
money lent is remedial. The existence of a remedial liability depends upon the existence of a
legal duty binding upon the defendant and unfulfilled by him. Whenever the law creates a duty, it
should enforce the specific fulfillment of it. So, what a man is bound to do by a rule of law, he is
made to do so, by the force of law. But to this general principle there are three exceptions.
These are:

(1) Duties of imperfect obligation:

The breach of such duty creates no liability at all and as such gives no cause of action e. g. a
time-barred debt is no doubt a legal debt, but the payment of it will not be enforced by any court
of law.

(2) Where the specific enforcement or fulfillment of a duty is not possible due to the breach of it.
There are duties which cannot be specifically enforced when once they are broken. Such duty is
by its very nature incapable of specific enforcement e. g. it is the duty of every person to refrain
from doing anything that is likely to injure the reputation of others. But when a libel has already
been published the wrong-doer cannot be made to undo what he has already done. Wrongs of
this kind cannot be remedial; they can only be punished.

(3) Where the specific performance of the duty is possible but in-expedient, and the law
considers that the award of compensation will meet the requirements of the law. There are
duties, the specific enforcement of which the law can, but will not enforce, because it is either
inadvisable or in-expedient to do so. Thus the law will refuse to enforce specific performance of
a promise of marriage or the breach of contract of service on the ground of public policy. In such
cases the law provides pecuniary compensatiori.

125. Penal Liability

Penal liability is that in which the sole intention of the law is the punishment of the wrong-doer.
Here the idea of punishment is predominant. The primary purpose of punishment is that it
should be deterrent. Where the law finds it impossible or inexpedient to enforce a duty
specifically, it fulfills its purpose by inflicting punishment on the wrong-doer. The liability of a
wrong-doer in such cases is called penal liability.

Punishment, however, is not inflicted upon the wrong-doer merely for doing a wrongful act; he
must have done it with a guilty mind. In other words, two conditions must be satisfied before
punishment can be inflicted upon a person; viz, (i) that he has committed a breach of his duty,
and (ii) that it would have been possible for him to know that he was committing a wrong if he
had exercised due diligence. In other words, a person is penally liable only for those wrongful
acts which he does either willfully or negligently. These two conditions of penal liability are
sufficiently indicated by the maxim-actus non facit reum, nisi mens sit rea, i. e the act alone
does not amount to guilt, it must be accompanied by guilty mind.

126. Acts-Nature of act and its elements

The term act is not capable of being defined with any great precision, since in ordinary
language, it is used at different times to point different contrasts. Acts are generally events
which are subject to the control of the human will. An act may, however, be resolved into the
following successive steps:

(1) Weighing the consequence in mind,

(2) Making a decision i. e. will,

(3) Bodily movement,

Will is the mental decision which is preceded by the weighing of the consequences and is
succeeded by a bodily movement, or in other words, it is the choice of an act after consideration
of its consequences.

Classifications-Acts, so defined, may be divided into the following classes:

(1) Positive and negative acts-The former are acts of commission and the latter are acts of
omission or forbearance. A wrong-doer either does that which he ought not to do, or omits to do
that which he ought to do.

(2) Internal and external acts-The former are the acts of the nind and the latter are the acts of
the body. To think is an internal act, to speak is an external act. Every external act involves an
internal act, but the converse is not always true.

(3) Intentional and unintentional acts-An intentional act is one which is foreseen and desired by
the doer, while an unintentional act is one which is neither foreseen not desired by the doer. It is
unintentional when it is not the result of any determination of the will towards the actual results.

Elements Every act is made up of three parts:

(1) Its origin is some mental or bodily activity of the doer e. g a gun is taken up in hand.

(2) Its circumstances e. g., the gum is loaded.

(3) Its consequences e. g., the trigger is pulled and a man is killed.

Two classes of wrongful acts-Every wrong is an act which is mischievous in the eye of law,
because of its harmful consequences. These consequences are of two kinds-actual or
anticipated. In other words, an act may be mischievous in two ways-either in its actual results or
in its tendencies. The first consists of those acts which actually result in harmful consequences,
the second consist of those acts which may not end in harmful consequences, but which the law
regards as mischievous. Considered in respect of those consequences, wrongful acts are,
therefore, of two kinds;

(1) In the first case, there is no wrong or cause of action without proof of actual damage and
actual damage is essential to the cause of action. They are actionable only on proof of actual
damage. Slander, for example, is in general not actionable without proof of some loss sustained
by the plaintiff.

(2) In the second case, it is sufficient to prove the act itself even though no harm has followed it.
They are actionable per se (without proof of actual damage) e. g. trespass, libel breach of
contract, etc. for, in law, they are acts of mischievous tendencies and, as such, are actionable
without any proof of actual harm resulting therefrom.

With respect to this distinction between wrongs which do and those which do not require proof
of actual damage, it is to be noticed that civil liability belongs to the former and criminal wrongs
commonly belong to the latter class. So, if by negligent driving I expose others to the risk of
being run over, I am not deemed guilty of any civil wrong until an accident actually happens. But
criminal liability is sufficiently established by proof of some act which is deemed dangerous in its
tendencies even though the issue is, in fact, harmless.

127. Damnum sine injuria

All wrongs are mischievous in the eye of law, but the converse is not always true. There are
many acts which though harmful are not wrongful or, in other words, all mischief's are not
wrongful. Such acts may result in serious injury, but no action will lie for the injury thus caused.
Because such acts do not cause what is called legal damage, that is, the injury caused is no
injury in the eye of the law. The law will allow the doer of such act knowingly to inflict harm on
another and will not hold him liable for it. Harm of this kind is called damnum sine injuria.
Salmond divides such cases of damnum sine injuria into two classes:
(1) Where the harm done to the individual is a gain to the society, e. g. competition in trade; or
excavation on one's land in such a manner as to withdraw the support required by the building
on the adjoining property owned by other.

(2) The second class of damnum sine injuria includes all those cases in which although real
harm is done to the community, yet it is so trivial or so difficult to prove that it is considered by
law inadvisable or inexpedient to attempt its prevention by the law. The mischief is of such a
nature that the legal remedy would be worse than the disease.
In may, however, be pointed out that only in the sphere of criminal law certain acts are made
crimes, all other harmful kinds of conduct of trivial nature belonging to the damnum sine injuria.
It is disputed whether a similar principle ho'ds true of tort, or whether there is a general theory of
tortious liability for harmful acts.

128. Mens rea

The general condition of penal liability is based on the maxim actus non facit reum, nisi mens sit
rea-i. e. the act itself creates no guilt in the absence of a guilty mind. This is generally known as
the doctrine of mens rea or the guilty mind. Penal liability is commonly based on the
co-existence of two conditions. These are;

(1) Material condition-That is, the doing of some overt act by the person to be held liable. This
material condition implies two requisites:

(i) An act must be done.

(ii) The act must be done by the person to be held liable.

(2) Formal condition-That is, the mens rea or the guilty mind with which the act is done. An
enquiry must be made into the mental attitude of the doer of the act before the law can rightly
punish the act, that is, a person is responsible not for his acts in themselves but for his acts
coupled with mens rea or guilty mind. This mens rea or guilty mind may assume one of tow
forms-wrongful intention and culpable negligence. The act must be done either with (i) wrongful
intention i. e. intentionally or without just cause or excuse, or (ii) with culpable negligence or
carelessness on the part of the wrong-doer. Hence, wrongful intent and culpable negligence are
the two alternative forms of mens rea one or the other of which is commonly required by law as
a condition of liability.

A person is, therefore, liable when he intentionally commits a wrong; he is also liable when he
does the wrongful act negligently, because he did not take sufficient care to avoid it. Such
punishment will make him to be careful in future. A man intends the consequences, when he
foresees or desires them; he is guilty of negligence when he does not desire the consequences
and does not act in order to produce them, but is nevertheless indifferent or careless whether
they happen or not. But if the act is neither intentional nor negligent. i. e. not only did he not
intend it, but did his best to avoid it, no purpose will be served by punishing him.

Thus, a person is liable of he acts (1) with wrongful intent or (2) with culpable negligence. So the
wrong-doer's conduct must be voluntary i. e. either willful or careless (negligent). These two
mental conditions are grouped together under the term mens rea.

Yet there are exceptional cases which the law regards as so serious and harmful that it thinks fit
to punish the wrong-doer even in the absence of any intention or negligence-when the law takes
into account only the material condition and disregard the formal condition of liability. Wrongs
which are thus independent of mens rea are distinguished as wrongs of strict or absolute
liability.

From what has been stated above, we may state that in respect of the requirements of mens
rea, wrongs may be divided into three classes:

Intentional or wilful wrongs-Here mens rea amounts to an evil intention, or design or knowledge
of the wrongfulness of the acts. Wrongs of negligence Here mens rea assumes the form of mere
carelessness. It is the absence of such care as it was the duty of the wrong-doer to use.

Wrongs of strict or absolute liability Here mens rea is not required at all. These are the acts for
which a man is responsible irrespective of the existences of either wrongful intention or culpable
negligence. Thus they are the exceptions to doctrine of mens rea, which is not recognised as a
necessary condition of responsibility.

129. The Nature of Intention :

Salmond defines 'intention' as the conscious purpose or design

with which an act is done. It is the foreknowledge of the act coupled with the desire of it. Art act
may be intentional when it exists in idea before it is realised into a fact, or wholly unintentional
when it did not exist in idea before it became realised in fact, or partly intentional. e. g. if throw
stones, I may intend to break a window but not to do personal harm to any, yet, in the result, I
may do both these things.

Intention does not necessarily involve expectation, e. g. if I fire at a man a mile away. I may not
expect to hit him, but at the same time, I intend to shoot him. Conversely, (expectation does not
in itself amount to intention, e. g. an operating surgeon may well know beforehand that his
patient will probable die of operation. Yet, he does not intend the fatal consequences which he
expects. He intends the recovery which he hopes for but does not expect.
Now, what shall be of consequences which, though not desired, are nevertheless known to be
certain, and are the inevitable consequences of certain things which are desired. For example, a
manufacturer establishes a factory in which he employs many workmen who are daily exposed
to the risk of dangerous machinery or processes. He knows with certainty that from time to time
fatal accident will, notwithstanding all precautions, occur to the workmen so employed. Does he
then intend their deaths? Again, a Military Commander orders his troops into action, well
knowing that many of them, will lose their lives. Does he intentionally cause their deaths?
Salmond says that these questions are to be answered in the negative. Such consequences,
though foreseen as certain, are not desired and, therefore, not intended. It is not possible to
define the term 'intent' as to include both the consequences which, though probable, are not
desired and which, though improbable, are desired.

Again, I may desire and intend a particular result, but the result may be quite the different from
what I had intended it to be. Thus he who does grievous hurt to another, though with no intent to
kill him, is guilty of murder if death ensues. Therefore, it is sometimes said that a person is
presumed in law to intend the natural of necessary results of his actions. This maxim, if strictly
applied, would take away from its scope the difference between intentional and negligent
wrong-doing. But criminal liability will not exempt a person from the liability for the
consequences of his wrong-doing, for no person who knows that certain results will flow from
his illegal acts, will be suffered to say that he did not intend them. In other words, in criminal law
the intention that is material is usually the general intention to commit a crime and not the
specific intention. Thus, if A shoots B intending to kill him, but the shot actually kills C, this is
held to be the murder of C, and A will not be permitted to say that he did not intend to murder C,
So also, if A throws stone at one window and breaks another, it has been held to be malicious
damage to the window actually broken.

130. Intention, Motive and Malice

Intention and motive invariably go together but there is a subtle difference between the two. A
wrongful act i. e. a crime is seldom intended or desired and committed for its own sake. The
wrong-doer has in view some ulterior object which he desires to obtain, that is, there is some
purpose or object which he desires to fulfill by means of his criminal act. Thus, if a thief robs a
person, his immediate intention is of course to rob him, but there may also be some purpose
behind the act of robbing which may be to buy food with it or to pay a debt. This ulterior intent is
called the motive of the act. The immediate act consists of intention

Secondly, a man's motive for an act consists in a desire for something which will confer a real or
imagined benefit of some kind on the actor himself, whereas his intention need not relate some
personal interests of this kind. The point of asking what a man intends is to discover what he is
trying to achieve. The point of asking for his motive is to find out what personal advantage he is
seeking to gain, and a motiveless act is one aimed at no such personal advantage.

The objective of one wrongful act may be the commission of another. I may make a die with
intent to coin bad money; I may coin bad money with intent to utter it; I may utter it with intent to
defraud. Each of these acts is or may be a distinct criminal offence, and the intention of any one
of them is immediate with respect to that act itself, but ulterior with respect to all that go before it
in the series.

Again, a person's ulterior intent may be complex instead of simple; he may act from two or more
current motives instead of from one only. Thus, he may institute a prosecution partiy front a
desire to see justice done, but partly also from ill-will towards the defendant.

Malice Closely connected with the law and theory of intentional wrong-doing is the legal use of
the word malice. In a narrow and popular sense, malice means ill-will or spite or malevolence,
but its legal significance is much wider. In its legal sense, it means any kind of intent or purpose
which the law disapproves. Malice means, in law, wrongful intention or recklessness. Any act
done with one of these elements is, in the language of the law, malicious. The equivalent Latin
term malitia means badness, physical or moral wickedness in disposition or conduct-not
exclusively ill-will or malevolence. Hence the malice of English law includes all forms of evil
purpose, design, intent or motive.

We have seen in a previous chapter the distinction between the immediate intention with which
an act is done and its ulterior purpose or motive. The term malice is applied in law to both these
An act done with a bad intention or bad motive is said to have been done maliciously. But it may
also mean either the two. For example, in the phrases 'malicious homicide' and 'malicious injury'
to property, 'malicious, is merely a collective term for intention and recklessness without any
reference to motive. Similarly, I bum down a house maliciously if I burn it on purpose or realising
the possibility that what I do will set it on fire. There is here no reference to any ulterior purpose
or motive. But, on the other hand, malicious prosecution does not mean any intentional
prosecution; it means, more narrowly, a prosecution, inspired by some motive of which the law
disapproves. A prosecution is malicious, if, for example, its ulterior intent is the extortion of
money from the accused. So, also, with the malice which is needed to make a man liable for
defamation on a privileged occasion. I do not utter defamatory statements maliciously simple
because I utter them intentionally. Malice in common acceptation means ill-will against a person;
but in its legal sense, it means a wrongful act done intentionally, without just cause or excuse.

Save in exceptional cases, malice in the sense of improper motive, is entirely irrelevant for
determining the question of legal liability. The law in general asks merely what the defendant
has done and not why he did it.

131. Relevance and Irrelevance of Motives

We have already seen in what way and to what extent a man's immediate intent is material in a
question of liability. Intention and negligence are the two alternative conditions of penal liability.
We have now to consider the relevance or materiality not of the immediate but of the ulterior
intent. To what extent does the law take into account the motives of a wrong-doer? To what
extent will it enouire, not merely what the defendant has done, but why he has done it? To what
extent is malice, in the sense of improper motive, in

an element in legal wrong-doing?son's motive is immaterial in determining the question of legal

liability) An act otherwise lawful does not become unlawful because it is done with a bad motive
or conversely an act otherwise unlawful cannot be excused on the ground that it was done with
the best of motives) In other words, the law will judge a person by what he does and not the
reasons good or bad, which caused him to do it. An act prima facie lawful is not unlawful and
actionable on account of the motives which dictated it. An illustration of this irrelevance of
motives is the right of a land-owner to do harm to adjoining proprietors in certain defined ways
by acts done on his own land. But there are three exceptions to the above general rule as to the
irrelevance of motives. Thus, motive is essential and relevant in the following cases;

Criminal attempts-Criminal attempts constitute the first of the exceptions to the rule that a
person's ulterior intent or motive is irrelevant in law. An attempt to commit an offence is itself a
crime and punishable because the attempt reveals the criminal character and guilty mind of the
offender and because it may constitute a danger to the social interest concerned. Therefore, the
law makes no distinction between a crime and an attempt to commit a crime. Every attempt is
an act done with intent to commit the offence so attempted. The act in itself may be innocent,
but is deemed to be criminal by reason of the purpose i. e. the wrongful motive with which it is
done. A criminal attempt bears criminal intent upon its face as it is itself the evidence of criminal
intent with which it is done. Thus, to buy or load a gun even with intent to murder is not an
offence. But to lie in wait with a loaded gunman act which itself proclaims the criminal intention
and the guilty mind of the person attempting the act and is, therefor, punishable as an offence.
Again, if a man standing by the side of a haystack strikes a match, this act will be quite lawful
and innocent if done with the purpose of lighting his pipe, but it will be unlawful and criminal if
done with the purpose of setting fire to the haystack. For then it will constitute the crime of
attempted arson. The existence of ulterior intent or motive is the essence of an attempt and can
render unlawful an otherwise lawful act. Hence motive is relevant in criminal attempt.

Cases in which particular intent forms part of the definition of a criminal offence-A second
exception to the irrelevance of motive comprises all those cases in which a particular intent
forms part of the definition of criminal offence. For example, the offence of burglary consists in
breaking and entering a dwelling house by night with intent to commit a felony or theft therein.
So, forgery consists in making a false document with intent to defraud. In all such instances, the
motive is the source, in whole or part, of the mischievous tendency of the act and is, therefore,
material in law.

Malicious prosecution-In civil (as opposed to criminal) liability motive is very seldom relevant. In
almost all cases the law looks to the act alone and makes no inquiries into the motives from
which it proceeds. There are, however, certain exceptions even in the civil law, where motive
forms one of the principal ingredients. There are cases where it is thought 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. In such cases, therefore, malice is an essential element in the
cause of action. Examples of wrongs of this class are defamation (in cases of privilege) and
malicious prosecution. In these instances the plaintiff must prove malice, because in all of them
the defendant's act is one which falls under the head of damnum sine injuria so long, but so long
only, as it is done with good intent.

A prosecution is malicious when it is inspired by some motive of which the law disapproves.
Malicious prosecution does not mean intentional prosecution. In order to succeed in such a
case the plaintiff must prove that the defendant acted with a malicious intention i. e. with a
wrongful motive or ulterior wrongful intent. Thus malice or improper motive is the gist of the
action of malicious prosecution and is, therefore, relevant in such a case. Malicious prosecution
is one of those few wrongs where improper or wrongful motive is essential to constitute liability.

132. Jus Necessitatis in relation to wrongs

So far as the abstract theory of responsibility is concerned, an act, which is necessary, is not
wrongful, even though done with full and deliberate intention. This is a special case in which
motive operates as a ground of excuse. This is the case of jus necessitatis. It is a familiar
proverb that necessity knows no law; Necessitas non habet legem. In such cases, although the
element of intention is present, mens rea or guilty mind is presumed to be absent, for necessity
knows no law.

Necessity, however, does not mean inevitability i. e an act

which can in no possible manner be avoided. An act which is necessary is one where the actor
could have chosen otherwise, but he had highly compelling reasons for the choice he made. In
a situation of so-called necessity, the law itself permits a departure from its own principles. For
example, it would be lawful in an emergency to damage the property of another in order to save
life.

The common illustration of this right of necessity where punishment would be ineffective is the
case of two drowning men clinging to a plank that will not support more than one of them This,
in the opinion of Sir John Stephen, is not a crime. Salmond gives the illustration of another
familiar case of necessity in which ship-wrecked sailors are driven to choose death by starvation
of the one side and murder and cannibalism on the other. It is the right of the stronger to use his
strength for his own preservation. A third case is that of a crime committed under the pressure
of illegal threat of death or grievous bodily harm. In this connection. Hobbes observes "If a man
by the terror of present death be compelled to do an act against the law, he is totally excused,
because no law can oblige a man to abandon his own preservation". But the English courts in
the famous case of Dudley have held that no necessity will justify what would otherwise be
murder, although it is acknowledged as a reason for the reduction of the penalty. Ship-wrecked
sailors who kill and eat their comrades to save their own lives are in law guilty of murder itself;
but the elemency of the Crown will commute the sentence to a short term of imprisonment.
Thus, jus necessitatis is a special case in which intention is present but the mens rea is absent.
The effect of jus necessitatis is two-fold:

(1) It is admitted and recognised as a ground of excuse in some cases.

(2) In other cases it reduces the seriousness and gravity of the crime as stated above.

133. Negligence

Negligence is culpable carelessness. "It is" says Willes, J. "the absence of such care as it was
the duty of the defendant to use". It excludes wrongful intentions Thus, if I do harm but
thoughtlessly believing that there was no danger, I am guilty of negligence But carelessness or
negligence does not necessarily consists in thoughtlessness or inadvertence. Thus, if I drive
furiously down a crowded street, I may be fully conscious of the serious risk to which I expose
other persons. I may not intend to injure any of them, but knowingly and intentionally expose
them to the danger and if a fatal accident happens, I am liable, at the most, not for wilful but for
negligent homicide. So, when I consciously expose another to the risk of wrongful harm but
without any wish to harm him and harm actually ensues, it is not wilful since it was not desired,
nor inadvertent since it was foreseen as possible or probable, but nevertheless negligent.
'Negligence', says Salmond, 'consists in the mental attitude of undue indifference with respect to
one's conduct and its consequence.

Negligence is of two kinds:

(1) advertent and

(2) inadvertent or simple negligence.

Advertent or Willful Negligence

Here the harm is foreseen as possible or probable, but it is not at all willed or intendede g. a
person who does a dangerous act knows fully well that he is exposing others to a serious risk of
injury here he is guity of wilful negligence-his act is wilful because the harm is foreseen although
it was not intended.

Inadvertent or Simple Negligence

Here the barm is neither foreseen nor willed. Thus a physician who treats a patient improperly
through ignorance or forgetfulness is guilty of simple negligence; but if he does the same in
order to save himself from troubles, or by way of scientific experiment with full knowledge of the
dangers involved, his negligence is wilful. Similarly, a drunken man is liable for negligence, if he
stumbles as he walks along the street and breaks a shop window although he may have been
exceedingly anxious to walk straight and to avoid any such accident, because if he had been
careful while getting drunk the accident would not have happened. Again, a physician may
devote to the treatment and cure of his patient with care far in excess of that which another
skilful physician would consider unnecessary, yet if his treatment is wrong, he is guilty of
negligence because he was careless in taking work calling for greater skill than he possessed.

134. Duty and Standard of Care

Carelessness is not made a ground of liability except in those cases in which the law has
imposed a duty of carefulness. In all other cases, complete indifference as to the interest of
others is allowable. No general principles can be laid down, however, with regard to the
existence of this duty, for this is a matter which depends upon the facts of each case. Speaking
generally, in the criminal law the liability for negligence is quite exceptional. In the civil law, on
the other hand, an act which would be a civil wrong, if done intentionally, is also a civil wrong if
done negligently. In other words, negligence is culpable or not culpable, as the law thinks fit to
provide.

Standard of care The degree of carelessness varies directly with the risk to which other persons
are exposed by the act in question. The law does not demand the highest degree of care of
which human nature is capable. The law demands not that which is possible but that which is
reasonable in view of the magnitude of the risk: It is of course dangerous to drive a car in a
crowded street. Yet it is expedient in the interest of the public that such activities should go on
and men be exposed to the risk incidental to such activities. It is a question of law whether in
any particular circumstance a duty of care exists.
"Negligence" it has been said, "is the omitting to do an act which a reasonable man would do, or
the doing of something which something a reasonable man would not do". What amounts to
reasonable care depends entirely upon the circumstances of the particular case. The care taken
by the prudent man has always been the rule.

135. Degree of Negligence

English law recognises only one standard of care and, therefore, only one degree of negligence.
Whenever a person is under a duty to take care at all, 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. It is a question of law (i. e. it is a question for the Judge to decide) whether in any
particular circumstances a duty of care exists. But where a system of law recognises only one
standared of care, it does not necessarily follow that it must recognise only one degree of
negligence. For since negligence consists in falling bellow the standard of care recognised by
law, the further the defendant falls below this standard, the greater his negligence. There are
then degrees of negligence and these could be taken into account by law for both criminal and
civil purpose. In crimes of negligence the law could provide that greater the negligence the
greater the punishment. Although English law does not recognise many offences of negligence,
but the different gradations of carelessness can be found in the law relating to read traffic. Here
a distinction is drawn between ordinary negligence, criminal negligence and gross negligence.
Ordinary negligence is such failure to use care as could render a person civilly but not criminally
liable; criminal negligence is a greater failure and a greater falling below the Standard of care
and renders a man guilty of driving offence (and even within this category the law distinguishes
between the negligent offence of careless driving and more negligent offence of dangerous
driving); gross negligence is a yet greater fall below the standard and is such a wholly
unreasonable failure to take care as to make the defendant guilty not only of driving offence, but
also of manslaughter in the event of

his conduct resulting in another person's death. Roman law recognises two degrees of
negligence viz. gross negligence (culpa lata) and slight negligence (culpa levis). It looked upon
gross negligence as equivalent to wrongful intention. On the very face of it, this appears to be a
paradox, because intention and negligence are two poles apart. However, if we go deep into the
subject, we find that the grossest form of negligence may touch the border-land of design or
purpose. For, there must come a point where gross negligence cannot be negligence at all. Its
grossness raises a presumption against its reality. If a newborn child is left to die from want of
medical attention or nursing, it may be that its death is due to negligence only, but it is more
probable that it is due to wrongful purpose, namely, infanticide. Again, in certain cases negligent
acts are deemed to be wrongful in intent by the law, e. g. the law of homicide (not amounting to
murder). An intent to cause grievous bodily harm is imputed as an intent to kill, if death ensues.

136. The Subjective and Objective Theories of Negligence

There are two rival theories of the meaning of the term negligence. According to one,
negligence is a state of mind; according to the other, it is not a state of mind but merely a type of
conduct. The opposing views may conveniently be distinguished as the subjective and objective
theories of negligence. The former view was adopted by Sir John Salmond, the other by Sir
Frederick Pollock.

The subjective theory of negligence In the subjective sense, negligence signifies a particular
state of mind and is opposed to wrongful intention. Prof, Salmond used the term negligence in
this sense. His view was that a careless person is that person who does not care; his attitude is
essentially one or indifference. Negligence, on this view, essentially consists in the mental
attitude of undue indifference with respect to one's conduct and its consequences.

The subjective theory has the merit of making clear the distinction between intention and
negligence. The wilful wrong. doer desires the harmful consequences and, therefore, does the
act in order that they may ensue. The negligent wrong-doer does not desire the harmful
consequences but in many cases is careless and indifferent whether they ensue or not and,
therefore, does the act notwithstanding the risk that they may ensue. The wilful wrong-doer is
liable because he desires to do the harm; the negligent wrong-doer is liable because he does
not sufficiently desire to avoid it.

The truth contained in the subjective theory is that in certain situations any conclusion as to
whether a man had been negligent will depend partly on conclusions as to his state of mind. But
to identify negligence with any one state of mind is a confusion and an over simplification. We
have seen that negligence consists in the failure to comply with a standard of care and that such
failure can result from a variety of factors, including ignorance, inadvertence and even
clumsiness. Again, the state of mind is also not conclusive. In certain circumstances it may be
held in law that a reasonable man could know things that the defendant did not know, and the
defendant will be blamed for not knowing and held liable because he ought to know.

The objective theory of negligence-According to Sit Frederick Pollock, negligence is not a

subjective, but an objective fact. It is not a particular state of mind or a form of mens rea at all,
but a particular kind of conduct. It is a breach of the duty of taking care and to take care means
to take precautions against the harmful result of one's actions, and to refrain from unreasonably
dangerous kinds of conduct. To drive at night without light is negligence, because, to carry lights
is a precaution taken by all reasonable and prudent men for the avoidance of accidents. If the
defendant has failed to achieve this standard, it is no defence for him to show that he was
anxious to avoid doing harm and took the utmost care of which he was capable. The same
seems to hold good in criminal law. This view obtains powerful support from the law of tort,
where it is clearly settled that negligence means a failure to achieve the standard of a
reasonable man.

It is, however, possible to reconcile both these two theories of negligence. In criminal law a
sharp distinction is drawn between intentionally causing harm and negligently causing harm,
and in deciding whether the accused is guilty of either, we must have regard to his knowledge,
aims, motives and so on, Cases of apparent negligence may, upon examination of the party's
state of mind, turn our to be cases of wrongful intention. A trap door may be left unbolted, in
order that one's enemy may fall through it and so die, Poison may be left unlabelled, with intent
that someone may drink it by mistake. A father who neglects to provide medicine for his sick
child may be guilty of wilful, murder, rather than of mere negligence. In none of these cases, nor,
indeed in many others, can we distinguish between intentional and negligent wrongdoing, save
by looking into the mind of the offender and observing his subjective attitude towards his act and
its consequences. Externally and objectively the two classes of offences are indistinguishable.
In the objective sense, Prof. Salmond uses the term 'negligent conduct' and not merely
negligence. Thus negligence is either state of the mind or a conduct resulting from such mental
state.
137. Negligence and Inadvertence

According to Austin, negligence, signifies a particular state of mind of one who inadvertently
omits an act and breaks a positive duty. Hence negligence consists essentially in inadvertence,
that is, in failure to be alert, circumspect or vigilant. It is the omission of an act and the violation
of a positive duty. The act is omitted because the agent does not advert to it.

Prof. Salmond raises the following criticism to the above Austinian theory of negligence:

All negligence is not inadvertent-Negligence does not necessarily consist in thoughtlessness or

inadvertence. There may be such a thing as advertent negligence or wilful negligence-where the
wrong-doer foresees the harm as possible or probable but does not will or intend it at all. At first
sight the term wilful negligence appears to be self contradictory, but really it is not so. A person
who drives his car furiously down a crowded road (say Nawabpur Road, Dhaka) knows fully well
that he is exposing others to danger but he does not intend harm to anybody. Here he is guilty of
wilful negligence-it is wilful because the harm is foreseen, although it is not intended.

All inadvertence is not negligence-Inadvertence may be caused by many causes, such as

mistake, accident, deliberate intention and carelessness. But it is not negligence unless it is
caused by carelessness. The essence of negligence is not inadvertence but carelessness.

138. Wrongs of Absolute or Strict Liability

A person is liable if he acts with wrongful intent or with culpable negligence. These two mental
conditions are grouped together under the term mens rea. Wrongs of absolute or strict liability
are those wrongs for which a person is made responsible irrespective of the existence of either
wrongful intention or negligence. They form exceptions to the maxim, Actus non facit reum nisi
mens sit rea i. e. the act alone does not make the doer of it guilty unless it is done with a guilty
mind. The chief instances of this kind of liability fall under three classes:

(1) Mistake of law, (2) Mistake of fact, and (3) Accident.

Mistake of law Ignorance of law is no excuse for breaking it. The maxim to this effect is
ignorantia juris neminem excusat. The rule is absolute and the presumption is irrebuttable. The
reason for this rigorous principle are variously stated thus:

Black stone's View

The law is definite and knowable. Every citizen ought to know the law under which he lives and
by which his actions are governed. Therefore, innocent ignorance of law is impossible (It is the
duty of every man to know that part of the law which concerns him.

Savigny's View

The law is in most cases derived from the rules of natural justice. Therefore, although a man
may be ignorant that he is breaking the law, he knows very well that he is acting unjustly and
dishonestly and thereby violating a right. So, if the law refuses to recognise his ignorance as an
excuse, he has little ground of complaint.

Austin's View

It is extremely difficult to enquire whether the party did actually know the law. Hence, if
ignorance of law were admitted as a ground of exemption, the court would be involved in
questions which it were scarcely possible to solve, and which would render the administration of
justice next to impossible.

According to Salmond none the above reasons sufficiently justifies the rule. He criticises the
above view thus:
(1) There is no doubt that all these considerations are substantial, but they do not afford a
sufficient justification for the strict application of this principle;

(ii) That the law is knowable by all who want to know, is more an ideal than an actual fact;

(iii) That it is impossible to distinguish between wilful and negligent ignorance of law is by no
means wholly true; and

(iv) That the law is based on principles of natural justice is far from truth, Hence Salmond
remarks that the rule, however, is restricted to matters of general law and not matters of private
right.

Mistake of fact-Ignorance of law is not an excuse but ignorance of fact is often so. Inevitable
ignorance of fact affords a good defence. Mistake of fact is an excuse unless it is the result of
carelessness or negligence Hence ignorance of fact is a defence to criminal liability, when the
act is clearly wrong in itself or when the act is absolutely prohibited, presence or absence of
knowledge being immaterial.

The general rule of English law is that mistake of fact is an excuse within the sphere of criminal
law, while in civil law the responsibility is commonly absolute in this respect (Thus, so far as civil
liability is concerned, it is the general principle of law that he who intentionally interferes with the
person, reputation, property or other rightful interests of another, does so, at his peril, and will
not be he permitted to plead that he believed in good faith and on reasonable grounds the
existence of some circumstances which justified his acts.) If I trespass on another man's land, it
is no defence to me that I believed it on good grounds to be my own. If, intending to arrest A, I
arrest B by mistake instead, I am civilly liable to him, notwithstanding the greatest care taken by
me to ascertain his identity. If I falsely but innocently make a defamatory statement about
another, I am liable to him, however, careful I may have been to ascertain the truth. In civil law,
therefore, mistake of fact, can hardly be regarded as a ground of legal excuse.

In the criminal law, however, the matter is otherwise. Absolute criminal liability for a mistake of
fact is quite exceptional. An instance of it is the liability of him who abducts a girl under the age
of legal consent; inevitable mistake as to her age is no defence; he must take the risk.

Accident-Inevitable accident is commonly recognised as a good ground of exemption from

liability both in civil and criminal law. Inevitable accident is that which could not possibly be
prevented by the exercise of ordinary care, caution and skill. It does not however mean
absolutely inevitable, but means "not avoidable by any such precaution as a reasonable man
doing such an act then and there could be expected to take".

Every act which is not done intentionally is done either accidentally or by mistake. It is done
accidentally when it is unintentional in respect of its consequences. It is done by mistake, when
it is intentional with respect to its consequences but unintentional with respect to some material
circumstances. If I drive a car over a man in the dark because I do not know that he is on the
road, I injure him accidentally; but If I procure his arrest because I mistake him for someone who
is liable to arrest, I injure him not accidentally but by mistake. In the former case I did not intend
the harm at all, while in the latter case I fully intended it.
Accident like mistake is either culpable or inevitable. It is culpable when it is due to negligence;
but inevitable when the avoidance of it would have required a degree of care exceeding the
standard demanded by the law. Culpable accident is no defence save in those exceptional
cases where wrongful intent is the exclusive and necessary ground of liability. But inevitable
accident is commonly a good defence both in the civil and the criminal law. There are, however,
some exceptions in the civil law, where even inevitable accident is no ground of defence. There
are cases in which the law insists that a person shall do certain things at his own peril, and if
any harm is caused, he is liable irrespective of inevitable accidents, because in such a case,
there is an absolute duty of insuring safety to others. Certain things are a source of
extraordinary risk, and a man who exposes his neighbour to such risk is held answerable or
liable to his neighbour as an insurer against consequent mischief. Here the liability cannot be
avoided even by proof that utmost diligence and care has been taken. The examples are:

(1) When damage is done by the escape of dangerous substances, brought or kept by anyone
upon his land (e. g. constructing of a reservoir of water) as held in the famous case of Raylad
vs. Fletcher.

(2) When a man keeps wild beasts.

(3) When a man erects dangerous structures by which passengers in the highway may come to
harm.

(4) Every man is absolutely responsible for the trespass of his cattle.

139. Grounds of Exemption from Liability

There are various conditions which, when present, will prevent an act from being wrongful
which, in their absence, could be a wrong, Under such condition the act is said to be justified or
excused. The following are the general grounds of exemption from liability:

(1) Inevitable mistake That is an accident which could not have been avoided by the use of
reasonable care and caution.

(2) Mistake of facts-Mistake of fact with the exceptions, as discussed in Section 138 (at page
224).

(3) Absence of wrongful intention, and

(4) Absence of culpable negligence.

140. Vicarious Liability

As a general rule, a man is liable for his own wrongful act, but there are certain exceptional
cases which both ancient and modern law imposes on him vicarious liability for the acts of
others though he had no part in those acts. In these cases one person is held liable for the
wrong done by another. Criminal liability, however, is never vicarious. Modern civil law
recognises vicarious liability in two classes of cases as follows:
The master's liability for the acts of the servant while acting in the course of his employment-A
master is liable for the wrongful acts or omissions committed by his servant in the course of his
employment, whether the wrong be committed negligently, want only, or even wilfully and
though no express command of the master is proved. All acts done by a servant in the course of
his employment are presumed to have been done by his master's express or implied authority
and are, therefore, regarded as the acts of his master for which he is rightly held responsible.
The maxim is qui facit per alium facit per se. i. e., he who does an act through another is
deemed to do it himself. The reasons for this liability are as follows:

(a) The rational basis for such liability is the evidential difficulty in the way of proving actual
authority. It is extremely difficult to prove actual authority and very easy to disprove it in many
cases and hence it is necessary and expedient to establish a conclusive presumption of it.

(b) A further reason is that generally, employers are, while their servants are not, financially
capable of bearing the burden of civil liability. A person who is capable of making compensation
for the results of his wrongful activities, should not be allowed to escape from the duty of doing
so be delegating the exercise of those activities to his servants or agents from whom no
compensation can be obtained.

Responsibility of living persons for the act of dead persons-The common law maxim was actio
personalis moritor cum persona; personal liability dies with the person i. e. a person cannot be
punished in his grave. Therefore, as a general rule, criminal liability extinguishes with the death
of the wrong-doer. But this rule of law has to a great extent been abrogated by statutory
provisions with regard to penal redress, a civil action. It is now settled that the liability to penal
redress must originate in the lifetime of the wrong-doer, but once it has originated it is to
continue in spite of the death of the wrong-doer (This is known as the principle of
compensation.) Firstly, because when a wrong has been committed, the person wronged should
not be deprived of his remedy, that is to say, a valuable right should not become extinct by a
mere irrelevant accident such as the death of the offender. There is no sufficient reason why a
debt should not survive a deceased person; but the responsibility for assault, defamation and
other acts involving compensation should be exempted from liability. And secondly, although
punishment cannot be inflicted after death, yet the threat of civil consequences to the successor
might serve as a deterrent during his lifetime and this primary object of punishment can be
fulfilled by allowing actions against his estate, and no injustice is thereby done to the
successors, because the property alone which is bequeathed to them is made liable for the acts
of the deceased and they are not personally liable as in old times.

It is to be noted that punishment is effective not when it is committed, but at the time it is
threatened. A threat of evil to be inflicted upon the descendants of a man at the expense of his
estate will certainly operate as a deterrent influence on him.

141. Measure of Criminal Liability

In every crime there are three elements which must be taken into consideration for the
appropriate measure of punishment. These are (i) the motive to the commission of the offence,
(ii) the magnitude of the offence, and (iii) the character of the offender. Motive of the offence The
object of punishment is to counteract the natural motives for the commission of the crime. So,
other things being equal, the stronger the natural motive to commit an offence, the greater
should be the punishment, or, in other words, the Punish greater the impulse or temptation to
commit a crime the greater should be the punishment.

But in exceptional cases extreme temptation under compelling circumstances may form a
ground for mitigating punishment, e.g. a person who steals in order to feed his hungry children,
he having no other means to satisfy their hunger. Sometimes offences are committed merely
through the influence of bad company or society and not through the strength of bad motives. In
such cases, the above principle or fundamental rule should not be strictly followed, Magnitude of
the offence Other things being equal, the greater the offence, that is to say, the greater the evil
consequences of the offence, the greater should be the punishment. As to why punishment
should be measured by the evil caused to other persons and not solely by the profit derived by
the offender, Salmond gives the following reasons:

(a) It is profitable and likely to be more effective to employ proportionately greater punishment
with the hope of preventing greater mischief.

(b) If the punishment varies with the magnitude of the offence the wrong-doer is thereby given a
chance to choose less serious crime and to receive lesser form of punishment. To put it
negatively, if the punishment for theft and for murder were the same, the offender could naturally
choose murder because there would be lesser chance of detection, because dead man tells no
tales and the risk involved is the same.

Character of the offender-The worse the character or the disposition of the offender the more
severe is the punishment which he deserves. In the matter of punishment, one of the most
important factors that should be taken into consideration is the repetition of the crime by one
who has already been punished for similar offence previously committed by him. The law rightly
imposes upon habitual offenders penalties which are disproportionate to the magnitude of the
offence. Again, greater the depravity of the character of the offender, the greater should be the
penalty inflicted. To kill a child in order to facilitate a robbery is a proof of extraordinary depravity
of human mind, which offers greater punishment. Any fact which indicates depravity of
disposition is a circumstance of aggravation and, therefore, calls for enhanced

punishment. Such facts are: (1) Repetition of the crime-A punishment generally adopted for
normal man is not appropriate for habitual offenders.

(2) Wilful offences-These offences are punished with greater severity than those which are
caused by mere negligence.

(3) Offences contrary to natura affection-To kill one's father is viewed with greater abhorrence
and, therefore, punished with great severity.

(4) Mischief disproportionate to profit-To kill a man for pick-pocketing is a proof of extraordinary
depravity of disposition and, therefore, punished with great severity.

(5) Decrease or deficiency of sensibility-Punishtient must increase as sensibility diminishes. The

more depraved the offender the greater should be the punishment.
142. Measure of Civil Liability

The characteristic of civil liability is that it is measured exclusively by the magnitude of the
offence, that is to say, the amount of loss inflicted by in irrespective of the character of the
offender, or of the motive for the offence. This liability consists of the compulsory compensation
to the person injured as an instrument of punishment of the offender. This form of punishment is
called penal redress. As an instrument of punishment panel redress has merits as well as
demerits. But in the whole this form of redress possesses greater advantages than
imprisonment, because the redress is both the gain for him who has been wronged, as well as
punishment to him who has committed the wrong. Moreover this form of remedy affords greater
interests to the person wronged, an interest which is almost absent in the case of criminal law.
But penal redress taken by itself falls short of the requirements of a rational scheme of
punishment. Therefore, in all developed bodies of law, its operation is supplemented and
deficiencies made good by a co-ordinate system of criminal liability. An equitable combination of
the two (civil and criminal) offers a very efficient instrument for the maintenance of justice