SUBJECT:- CRIMINAL LAW- I

Project proposed by Abhishek Kumar Project proposed to Fr. Peter Ladis

Roll.no: 1805

Semester: 3rd

“NEGLIGANCE AND REKLESSNESS-

A COMPARATIVE ANALYSIS”

Project submitted in the final fulfilment for the degree- B.B.A., L.L.B (Hons.)

Month of submission: September

Year of submission: 2018

CHANAKYA NATIONAL LAW UNIVERSITY, NYAYA NAGAR, MITHAPUR,

PATNA – 800001
DECLARATION

I, Abhishek Kumar, student of Chanakya National Law University, hereby declare that the project
work entitled “Negligance and recklessness a comparative anylisis.” submitted to the Chanakya
National Law University, Patna is a record of an original work done by me under the guidance of Fr.
Peter Ladis, teacher in subject, Chanakya National Law University, Patna.

THANK YOU,
NAME: Abhishek Kumar
COURSE: B.B.A., LL.B. (Hons.)
ROLL NO: 1805
SEMESTER –3rd
SESSION- 2017-2022
ACKNOWLEDGEMENTS

I would especially like to thank my guide, mentor,Fr. Peter Ladis without whose constant support
and guidance this project would have been a distant reality.

This work is an outcome of an unparalleled infrastructural support that I have received from
Chanakya National Law University, Patna.
I owe my deepest gratitude to the library staff of the college.

It would never have been possible to complete this study without an untiring support from my
family, specially my parents.

This study bears testimony to the active encouragement and guidance of a host of friends and well-
wishers.

THANK YOU,
NAME: Abhishek Kumar
COURSE: B.B.A., LL.B. (Hons.)
ROLL NO: 1805
SEMESTER – 3rd
SESSION- 2017-2022
OBJECTIVE OF THE STUDY:

The project in question deals with the topic in relation with the significance of negligence and
recklessness in Statutory offences. The researcher intends to explain the meaning, origin, evolution
and development negligence and recklessness in deciding over statutory offences with reference to
countries abroad in general and India in particular.

HYPOTHESIS:

1) Negligance is Mens rea under indian penal code 1860.

2) Recklessnessw is greater form of negligance.

RESEARCH METHODOLOGY:

The researcher has followed doctrinal method of research in pursuance of the project.

SOURCES OF DATA:

Primary and Secondary sources of data have been used in the pursuance of the project.

*Primary sources: Indian penal code, Constitution of India, Cases, Judgements.

*Secondary sources: Newspaper articles, books, websites, commentaries and reviews.

LIMITATIONS OF THE STUDY:

In the pursuit of the project, the researcher faced time, monetary & territorial limitations.

CHAPTERISATION

1.) Negligance: Meaning and defination.

2.) Recklessness: Meaning and defination.

3.) Negligance and recklessness under indian legal system.

4.) Negligance and Recklessness under other legal system.

5.) conclussion and Suggestions

 INTRODUCTION

We all know some general meaning of negligence. It is thoughtlessness, careless conduct, a failure
to take proper care. Wikipedia says it is “a failure to exercise the care that a reasonably prudent
person would exercise in like circumstances.”

Negligence (Lat. negligentia) is a failure to exercise

appropriate and or ethical ruled care expected to be exercised amongst specified circumstances. The
area of tort law known as negligence involves harm caused by failing to act as a form of
carelessness possibly with extenuating circumstances. The core concept of negligence is that people
should exercise reasonable care in their actions, by taking account of the potential harm that they
might foreseeably cause to other people or property.

Someone who suffers loss caused by another's negligence may

be able to sue for damages to compensate for their harm. Such loss may include physical injury,
harm to property, psychiatric illness, or economic loss. The law on negligence may be assessed in
general terms according to a five-part model which includes the assessment of duty, breach, actual
cause, proximate cause, and damages.

In criminal law and in the law of tort, recklessness may be

defined as the state of mind where a person deliberately and unjustifiably pursues a course of action
while consciously disregarding any risks flowing from such action. Recklessness is less culpable
than intentional wickedness, but is more blameworthy than careless behaviour.

NEGLIGANCE: Meaning and defination

Although with the advancement in technology, the life span of people of the world, in general, has
increased, the number of deaths, cases of hurt, and other injury has also suffered adramatically
increase over the years. Armed with new gadgets, even slight negligence on the part of an individual
may cause excessive damage to others.

India, in the past decade has witnessed several landmark cases which
deal with criminal negligence, including the recently in news Dr. Kunal Saha case1 , in which an
amount of 5.6 crores was awarded to the widower. This case and many others raise the question of

1 Malay Kumar Ganguly v Sukumar Mukherjee &Ors. [2009] SCC 221

negligence as a crime, also called criminal negligence. The rationality of criminal negligence has
been a subject of debate among the scholars since long, and though the law is much clear now, the
debate continues to stand that whether negligence ought to be culpable and whether it is a form of
mens rea.

This paper attempts to discuss the offence of criminal negligence in the context of Indian
criminal system. Starting with the basics of negligence, which is both a civil and criminal wrong,
the paper goes on to distinguish between the ordinary and gross negligence, as only gross
negligence is punishable under criminal law. A detailed discussion of criminal negligence as is
shaped under the Indian Penal Code (IPC) is followed by the difference between recklessness and
negligence, as the terms are usually used together, but are not interchangeable. An analysis on why
negligence is considered to be a form of mens rea, and whether negligence should even be culpable.

WHAT IS NEGLIGENCE?

“A person acts negligently if he or she departs from the conduct expected of a reasonably prudent
person acting under similar circumstances.”2 “The word 'negligence' denotes, and should be used
only to denote, such blameworthy inadvertence” 3so that the person who has caused the injury
through negligence/ inadvertence to another is legally obligated to compensate the victim. The use
of term “inadvertence by Glanville has been criticized by Russel 4 for being “misleadingly
pleonastic”; as he believes that negligence is a subjective state of mind.

Negligence qualifies as both a civil wrong and a crime. The tortious

wrong of Negligence occurs when a person breaches a duty of care by either doing something that a
reasonable man would not do, or omitting to do something that a reasonable man would do, given
the circumstances5 . The criminal wrong of negligence is an aggravated form of negligence and has
been defined by the Indian Courts in a number of cases such as Empress of India v Idu Beg6 and
State v BhalchandraWamanPethe7 as "gross and culpable neglect or failure to exercise the
reasonable and proper care which it was the imperative duty of the accused to have exercised.”
“Generally speaking, it is the amount of damages incurred which is determinative of the extent of
liability in tort; but in criminal law it is not the amount of damages but the amount and degree of
negligence that is determinative of liability. To fasten liability in Criminal Law, the degree of
negligence has to be higher than that of negligence enough to fasten liability for damages in Civil

2 Andrew Keogh, Negligence in crime‟

3 Ratanlal and Dhirajlal, The Indian Penal Code (29th edn, Wadhwa and Company Nagpur, 2002) 1038
4 Russel, Crime (11thed, 1908) 48
5 Blyth v Birmingham Waterworks Co. [1856] 11 Ex Ch 781
6 [1881] 3 ILR 776 (All)
7 [1966] AIR Bom 122
Law.”8Another difference between the civil and criminal negligence is the requirement of proof.
Where, in civil torts, “a mere preponderance of probability” suffices; the act has to be proved
without reasonable doubt in case of criminal negligence. Also, for criminal negligence, mens rea on
the part of the defendant must be proved; there is no such requirement for civil negligence. “There
can be no civil action for negligence if the negligent act or omission has not been attended by an
injury to any person; but bare negligence involving risk of injury is punishable criminally, though
nobody is actually hurt by it.”9

Negligence is never used as an independent term; it is always relative to the

circumstances present at the time of the act.10The test for negligence is an objective one that is a
reasonable man test. If under the circumstances, a reasonable man would have acted differently than
what the defendant did, the defendant would be liable for negligence.

ORDINARY AND GROSS NEGLIGENCE

Negligence may be classified into ordinary and gross negligence. Though the distinction is not very
clear, it is gross negligence that is punishable as a crime. The difference between negligence and
gross negligence is merely a matter of degree of inadvertence committed. “Negligence would be
gross if the defendant‟s conduct not merely fails to meet the standard set by the reasonable man
test, but falls short of that standard by a considerable margin- i.e. if the defendant‟s conduct is not
merely unreasonable, but very unreasonable.”11

An act of negligence would be considered gross if the act or omission

committed was such that any person, even with lesser mental or physical capacities would not have
done or omitted to do12 .Thus, where the defendant was driving within the speed limit and tried to
swerve to left when he saw the deceased crossing the road, but nevertheless hit the deceased as the
latter moved towards the same direction as the defendant; the defendant was held to be liable for
only ordinary negligence13. On the other hand, where the accused was driving at a high speed, and
did not try to swerve on seeing the deceased crossing the road, he was held liable for gross or
criminal negligence- rash and negligent driving. 14

8 [2005] 6 SCC 1
9 Ratanlal and Dhirajlal, The Indian Penal Code (29th edn, Wadhwa and Company Nagpur, 2002) 1038
10 Dr. R.P. Dhanda v BhurelalAndAnr. [1987] CriLJ 1316 (MP)
11 Bateman[1925] 19 CrApp R 8,11.
12 HLA Hart, „Negligence, Mens rea and Criminal Responsibility‟ in H.L.A. Hart and John Gardner, Punishment and
Responsibility (Oxford Press, 1968) 136, 149.
13 Tika Ram v Rex [1950] AIR 300 (All)
14 BaldevjiBhathijiThakore v State Of Gujarat [1979] AIR 1327 (SC)
NEGLIGENCE UNDER IPC

In the common law system, the only negligence based crime is manslaughter; however, the Penal
Code of India has many sections which involve negligence as its standard. These include sections
269, 279, 280, 281, 284-289, 304A, 336-338. Though negligence has not been expressly defined in
the IPC, but the idea of the degree of negligence that would make the act criminal can be had
through the words of the section 279”15of the Code: “whoever drives any vehicle, or rides, on any
public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt
or injury to any other person”.

The most important section for criminal negligence under IPC is section 304A.
Section 304A punishes a person who causes death of another by doing a rash or negligent act. The
section requires a rash or negligent act; death of any person due to the rash or negligent act; and a
proper nexus between the act and the consequence. 16It cannot be assumed that because death is the
consequence, the defendant would have driven the vehicle negligently or rashly.17 The nexus has to
be proved by the prosecution. Another requirement of this section, as has been conclusively decided
by the Supreme Court, is the presence of mens rea.18

In the very recent case of Dr. KunalSaha, the apex court has confirmed this
requirement. Most of the cases under 304A are filed against the professional medical practitioners
who cause death of their patients. It must be noted that test for negligence in cases of professionals
or people with special knowledge is different from the general objective test for negligence.
Negligence in cases where people with a special skill set are accused is tested by a subjective test,
and not the reasonable man test. It is considered whether a person with a similar set of skills would
have acted in the same manner as the defendant did in similar circumstances. For this, opinions of
other professionals are noted and the case is decided in accordance with that. The Supreme Court in
Jacob Mathew case19 distinguished between the liability for negligence by common man and by
professionals.

Fixing guidelines for medical negligence cases, the court observed that: “A
simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a
medical professional. So long as a doctor follows a practice acceptable to the medical profession of
that day, he cannot be held liable for negligence merely because a better alternative course or

15 Ratanlal and Dhirajlal, The Indian Penal Code (29th edn, Wadhwa and Company Nagpur, 2002) 1437.
16 Sri Udham Singh v the State of Himachal Pradesh [1980] Shimla LC 246
17 Re Kothandam [1972] Mad LW (Cr) 52
18 Malay Kumar Ganguly v Sukumar Mukherjee &Ors.. [2009] SCC 221
19 [2005] 6 SCC 1
method of treatment was also available or simply because a more skilled doctor would not have
chosen to follow or resort to that practice or procedure which the accused followed.” The medical
practitioners can be held liable for negligence if they do not possess the requisite skill set to practice
or they do not exercise the requisite skill set they possess, reasonably. Certain tests for medical
negligence, like Bolam test and Bolitho test have been created. Indian legal system follows Bolam
test for medical negligence. Bolam test, as laid down in the English case of Bolam v Friern Hospital
Management Committee20 states that “if a doctor reaches the standard of a responsible body of
medical opinion, he is not negligent”.

Section 304A comes into play only when death is caused as a result of a rash and
negligent act. In case the victim continues to live but is hurt, grievously or otherwise, a case under
section 337 or section 338may be filed, respectively. Section 336 punishes any act done negligently
which endangers human life. Sections 304A, 336, 337 and 338 are in the nature of general offences.
Section 279 gives a specific instance of negligence, where human life is endangered because of rash
driving on a public way. Though sections 279, 337 and 338 overlap, they are of distinct character.
“Offence under section 279 IPC is not compoundable, while sections 337 and 338 are
compoundable with the permission of the court.”21

Thus, a person can be held liable under both, sections 279 and 337 or 338
simultaneously. However, if the acts which though constitute different offences are a part of same
transaction, separate sentences under section 279 and section 337 or 338 are not justified. 22 Section
304A is distinct from section 279 as the former is limited only to cases where the resultant
consequence is death. Another instance is under section 269 of IPC, under which any person who
“negligently spreads infection or disease which is dangerous to life” will be held guilty. Thus, a
person who knows that he suffers from cholera, if on his own will enters and travels by a railway
coach, thereby endangering the health of the persons travelling by the train, would be guilty under
section 269.23 Similarly, if a person who knowingly suffers from AIDS, marries and thereby
transmits the disease to his/her spouse, the person would be guilty under section 269 and 270
(maliciously spreading infection or disease) of IPC.24 Other specific offences for criminal
negligence under IPC include negligent conduct while handling poisonous substances25, fire or

20 [1957] 1 WLR 582

21 S K Sarvaria, Nelson’s Indian Penal Code (Vol. II, LexisNexis Butterworths, 2003) 2398
22 Ragho Prasad v Emperor[1939] AIR Pat 388
23 R v Krishnappa ILR Mad 276
24 Mr. X v Hospital Z [1998] 7 SCC 626
25 The Indian Penal Code, 1860 s 284
combustible matter26, explosive substances27, machinery28, while repairing or pulling down
buildings29, and with respect to animals.30

NEGLIGENCE VIS-A-VIS RECKLESSNESS

Most of the sections in IPC related to criminal negligence, state the expression “rashly or
negligently” in the exact or similar fashion. A rash act, distinct from a negligent act, is the one
without due deliberation. “In terms of its blameworthiness, negligence is generally thought to fall
somewhere between rash (or reckless) conduct and strict liability.” 31Though it has been held that
“negligence is a genus, and rashness is a species” and that in certain cases, rashness may result if an
act is performed extremely negligently32 ; in Chintamani Sharma v State33 , the court has provided
a clear distinction between negligence and rashness: “Culpable rashness is acting with the
consciousness that dangerous consequences will follow, but with the hope that they will not follow
and with the belief that sufficient precautions to prevent the happening of such consequences have
been taken. Culpable negligence is acting without the consciousness that dangerous consequences
will follow but in the circumstances which show that the actor has not exercised the caution that
was incumbent on him.” Thus, if X is driving on the road, exceeding the speed limit, and sees a
pedestrian crossing the road, but does not slow down, believing that the pedestrian would have
crossed the road before he reaches; hits and injures the pedestrian, X would be guilty of culpable
rashness as he was acting with the consciousness that dangerous consequences will follow. If,
however, X is driving above the speed limit on an empty road and does not notice a pedestrian
crossing the road; hits and injures the pedestrian, X would be guilty of culpable negligence, as a
reasonable man would have been attentive while driving at a high speed. NEGLIGENCE AS MENS
REA “Mens rea is the state of mind indicating culpability, which is required by statute as an element
of crime.”34Actus non facitreum nisi mens sit rea, meaning that “an act is not culpable until the
mind is guilty” is one of the oldestmaxims of the criminal law, and forms the basis of crime.
“Criminal negligence is the failure to exercise duty with reasonable and proper care and employing
precautions guarding against injury to the public generally or to any individual in particular”. 35
Negligence is a negative act. It is always related to some circumstance, place, time, status of parties
etc. Whether or not negligence should be considered as mens rea is debatable. “Strictly speaking,

26 Ibid., s 285
27 Ibid., s 286
28 Ibid., s 287
29 Ibid., s 288
30 Ibid., 1860 s 289
31 Victor V. Ramraj, „Criminal Negligence and the Standard of Care‟ (1999) Singapore Journal of Legal Studies 678
32 Tika Ram v Rex [1950] AIR 300 (All)
33 [1994] ACJ 357 (Orissa)
34 Staples v United States [1994] 511 US 600
35 Malay Kumar Ganguly v Sukumar Mukherjee &Ors, [2010] AIR 1162 (SC)
negligence may not be a form of mens rea. It is more in the nature of legal fault. However it is made
punishable for a utilitarian purpose of hoping to improve people‟s standard of
behavior.”36Negligence does not require intent, malicious or otherwise. However, the doctrine of
mens rea is so deeply rooted in the criminal law that the judges refrain from discarding it; thus, the
courts have, through a multitude of cases, have asserted that negligence is a form of mens rea.
When the courts equate negligence with mens rea, “they are looking for a substitute of real intent,”37
or what may be called “intent implied in fact”.

Supreme Court of India has observed that for an act to be punishable, it

must be accompanied by some mental element, or a “guilty mind.” 38An extensive discussion about
criminal negligence under section 304A of IPC was undertaken by the apex court in Jacob Matthew
v State of Punjab and Anr.39, in the year 2005. The court laid down guidelines for courts to try cases
of criminal negligence. One of them stated that the element of mens rea cannot be excluded in a
case of criminal negligence. In the case, the complainant‟s father, who was admitted in a hospital,
felt difficulty in breathing at once instance. The doctor was summoned, who arrived around half an
hour later. The doctor connected the oxygen cylinder, but the patient continued to suffer and
eventually died.

It was found later that the oxygen cylinder was empty. The court in this case, acquitted
the doctor holding that the required mens rea for conviction under 304A was absent, and held the
hospital negligent for not providing for requisite equipment. Another case in which state of mind in
criminal negligence was sought is the very recent case of Dr. KunalSaha, who on a vacation in India
took his wife to certain doctors to cure a skin rash. Due to wrong medications, the condition of his
wife deteriorated, and she eventually died. Dr. KunalSaha filed a case against the 26 doctors who
had treated her wife in Mumbai and Kolkata. In 2009, the Supreme Court held liable the AMRI
Hospital of Kolkata and its doctors for gross negligence.

The failure of the doctors to exercise the skills that are reasonably expected of them and
their profession provide the requisite mens rea for gross and culpable negligence. “Negligence
means either subjectively a careless state of mind, or objectively careless conduct.” 40 It is contended
by various scholars that negligence does not involve a state of mind. They claim that “negligence is
to be judged not by an internal, but by an external standard” 41, i.e. the standard is objective and the

36 R v Williams [1987] 3 All ER 411

37 RDL, „Negligence and Criminal Negligence‟ (Jan, 1926) Michigan Law Review 24(3) 285-287
38 Kartar Singh v State of Punjab [1994] 3 SCC 569.
39 [2005] 6 SCC 1
40 Malay Kumar Ganguly v Sukumar Mukherjee &Ors. [2010] AIR 1162 (SC)
41 George P. Fletcher, „The Theory of Criminal Negligence: A Comparative Analysis‟ (Jan, 1971) University of
Pennsylvania Law Review 119(3) 401-438
person‟s heart and conscience is not looked into while determining whether the person was
negligent or not. It is also contended that negligence must be described as “absence of mind” or
inadvertence and “mens rea is a descriptive and not a normative state” 42, thus negligence is not a
state of mind. SHOULD NEGLIGENCE BE CULPABLE? It is often contended that negligence is
not a positive act, thus, it must not be punishable as a crime. A person would not like to be held
liable for his acts done in negligence and without mala fide intention. All the reasons that the
scholars who claim that negligence is not a form of mens rea give, also stand to argue that
negligence should not be punishable.

As negligence involves “low or unreasonable standard of conduct, is simply not as

culpable as conscious risk taking or recklessness”43 However, as Glanville Williams has
commented, “the essential question, at any rate for legal purposes, is whether it was reasonable for
you to go ahead with your conduct in the circumstances.”44 If the required nexus between the
negligent act and the consequence is present45 , the negligent person can be held criminally liable. It
is not the ordinary negligence, but gross negligence that amounts to an offence under the criminal
law. “There are degrees of negligence and rashness, and in order to amount to criminal rashness or
criminal negligence, one must find that the rashness has been of such degree that injury was most
likely to be occasioned thereby.”46

ANALYSIS

Criminal Negligence in the context of Indian legal system, is not a well -defined topic. The margin
between negligence, gross negligence and recklessness is so thin and unclear that ultimately, it
depends on the judge trying the case to decide in his discretion whether the act was gross enough to
be criminal. The asymmetric judgments in criminal negligence cases support this view. A crude
example of this is when a prostitute who was aware that she suffered from syphilis, but
misrepresented and encouraged a man to have intercourse with her, but was not held liable for
negligence as the court ruled that the man agreeing to the intercourse was an accomplice 47 . In
contrast to this, it has been held that a person having AIDS will be liable if he marries another and
transmits the disease. Many such cases lay down the ambiguous path of criminal negligence.
Another fall back in the theory of criminal negligence is that the law does not allow for

42 George P. Fletcher, „Glanville‟s Inspiration‟ in Dennis j. Baker and Jeremy Horder (eds), The Sanctity of Life and
the Criminal Law: the legacy of Glanville Williams (Cambridge University Press, 2013)
43 Janet Loveless, Criminal Law: Text, Cases and Materials (3rdedn, Oxford University Press) 142
44 Fitzpatrick and Williams, „Carelessness, Indifference and Recklessness: Two Replies ‟ (1962) 25 MLR
45 Sri Udham Singh v the State of Himachal Pradesh [1980] Shimla LC 246
46 ChamanLal v State [1970] AIR 1372 (SC): [1970] SCR (3) 913
47 Queen v Rakma [1886] 11 ILR 59 (Bom)
emergencies. It may so happen that a person in emergency (say, to rush one‟s mother to hospital)
may behave negligently. The law in this regard is not defined under IPC.

Types of negligance

1) comparative negligence:-
The plaintiff’s own negligent acts that bring about a pro rata reduction of the damages owed
by the defendant, depending on the degree of the plaintiff’s own negligence; compare contributory
negligence.
2) concurrent negligence:-
The negligence of two or more parties contributing to the ultimate harm.
3) contributory negligence:-
Any degree of negligence on the part of a plaintiff, which results in a total bar to recovery by
the plaintiff, even if the defendant was negligent as well. States are either “comparative” or
“contributory” negligence jurisdictions.
4) criminal negligence:-
Negligence so substantial it is grounds for a criminal prosecution.48
5) culpable negligence:-
Negligent actions committed with a disregard of the consequences.
6) gross negligence:-
Extreme negligence, acts committed with utter disregard for the consequences, punishable
by punitive damages.
7) negligence per se
Negligence as to which there is no disputed fact issue and that may therefore be determined
by the court without recourse to a jury.

Elements of Negligence

There are a number of factors to consider in determining whether an individual or entity has acted
negligently.
The first element of negligence is whether the party’s acts or omissions lack the degree of care that
would be taken by any reasonable person in the same situation.
The second element of negligence is whether there was a predictable likelihood that the party’s
conduct could result in harm.Following these considerations, there are additional elements of
negligence required to prove a claim of negligence.

48 R v Bateman (1925) 28 Cox's Crim Cas 33

If a plaintiff fails to prove any one of these elements, he loses the entire claim:
Duty

Generally speaking, all people have a duty to all others at all times to exercise reasonable care for
their physical safety, as well as the safety of their property. This does have limitations, however. A
common analogy is the homeowner who digs a deep hole in his fenced back yard and, because he
knows the hole is there, does not put up a barrier or warning about the hole. If a guest then fell into
the hole, the homeowner would be liable, as he has a duty to keep his guest safe from injury on his
property. If a burglar jumped the fence at night and fell into the hole, the homeowner would not be
held liable for his injuries, as he has no duty to protect this criminal from harm in the commission of
his crime.49

Affirmative Duty

Certain relationships create a duty where none would otherwise exist. Such duties often occur in
professional or commercial settings. For example, a school has a duty to protect its students, a
commercial establishment has a duty to protect its customers, and a restaurant has a duty to provide
safe food to its customers. Certain professionals have a built-in duty to protect others, even to the
point of rendering aid to others to keep them safe. Such professionals include police officers, EMTs
and paramedics, firefighters, doctors, and the like.

Rendering Aid

While all people have a duty to avoid taking actions that may endanger others, they do not generally
have a duty to provide assistance to protect others from being harmed by an unrelated cause. For
example, a woman who sees a person drowning at the public pool has no duty to jump in and save
that person, though the lifeguard on duty does. Another example would be an off duty paramedic
who witnesses an automobile accident. While other bystanders have no duty to render medical aid,
the paramedic does, even when he is off the clock.

49 Quill, Eoin (2014). Torts In Ireland. Dublin 12: Gill & Macmillan. p. 19.
Breach of Duty

After establishing that the defendant had a duty to protect the plaintiff, it must be shown that he
breached that duty. This can happen in two ways:
(1) by knowingly exposing the plaintiff to the risk of harm or injury, and
(2) by failing to recognize a significant risk of harm or injury which any other reasonable person
would have recognized.

Causation

In order for a person to be held liable for negligence, it must be shown that his act or failure to act
caused the plaintiff’s loss or injury. This is often the most complex element of negligence to prove.
For example, Bob negligently causes an automobile accident in which another driver was forced
into a utility pole and severely injured. Bob would be held liable for the other driver’s injury and
damage to his car, as his actions were the direct cause of the injuries and damage.
The damage to the utility pole also caused a power outage which caused Mary’s alarm clock to fail.
Should Bob be held liable if Mary, who was late to work, gets fired from her job? This is referred to
as proximate cause, which is a thorny issue, as the courts must consider what is fair, and at what
point does it become unfair or unreasonable to hold a person liable for the results of his actions.

Damages

Once breach of duty and causation have been established, it becomes necessary to determine a
monetary value for the injury or damages. In some cases, such as contract cases, this is as simple as
awarding the plaintiff the value he has invested in the contract. The award in any civil lawsuit is
intended to make the plaintiff whole, or to put him back in the position he was in before the
negligent act, therefore proof of the amount of the plaintiff’s damages must be provided in the form
of receipts, cancelled checks, or other evidence. In certain cases, however, it is appropriate for the
court to award a monetary amount to cover such things as medical costs, property damages, and
pain and suffering.

Gross Negligence

When negligent conduct is seen as extreme when compared to regular negligence, it is considered to
be “gross negligence” in the eyes of the law. Gross negligence is the conscious, voluntary, reckless
disregard for the safety or lives of other people.50 Grossly negligent conduct is so extreme that it
appears to be an intentional violation of, or indifference to, the right of others to be safe.

50 Garner, Bryan (1999). Black's Law Dictionary (7th ed.). St. Paul, Minn: West Group. p. 1057. ISBN 0-314-
22864-0.
While claims of regular negligence can sometimes be difficult to prove, gross negligence rises to
the level of being clearly unreasonable or dangerous.

Criminal Negligence

While the standard of civil negligence, whether regular or gross, is the defendant’s failure to act in
the way another reasonable person would act in the same situation, the standard of criminal
negligence rises to include the defendant’s mental state at the time of the act or omission. To prove
criminal negligence, it must be shown that the defendant failed to perceive or recognize a
substantial risk of injury or damages in actions that are contrary to the regard for human life, or that
show an obvious indifference to the consequences of his actions. Criminal charges for negligence
are most often the result of acts that result in the death of another party.

For example, Sally and John leave their children, ages 7 and 9, at home while
they go wood cutting. The children find John’s revolver in his nightstand drawer and decide to play
with it. Their young son ends up shooting his older sister, killing her. John may face charges of
criminal negligence as, while the act of leaving the children home alone did not create a high risk of
death, the act of leaving an unsecured, loaded firearm within reach did.

Medical Negligence

When a medical professional fails to provide care to the standard expected by other medical
professionals in the same situation, it is considered to be medical negligence. Such negligence is the
primary basis for allegations of medical malpractice. Medical negligence requires proof of the same
elements as regular negligence: duty, breach of duty, causation, and damages. The difference is that
physicians and other medical professionals have a higher duty of care to their patients.
Causation, or proof of injury, may include physical effects of the treatment rendered by the
physician, or the failure to provide treatment that another prudent physician would have deemed
necessary in the same circumstances. Injuries due to medical negligence may also include emotional
or psychological injury. Causation is a hotly disputed issue in any medical negligence
or malpracticelawsuit, as medical professionals often allege that the patient’s injuries were the result
of other factors not related to the care provided by the professional.51

Professional Negligence

Professional negligence may occur in a situation in which an individual has represented himself as
having greater skills and abilities than the average person. For example, a person claiming to be a

51 State of Haryana vs. Smt. Santra (2000) 5 SCC 182:: AIR 2000 SC 3335
plumbing contractor would be assumed to have greater skills in plumbing than a neighbor who has a
bit of experience tinkering with his own plumbing.

Professionals, such as contractors, accountants, architects, and attorneys, have a duty to provide
services to their clients to the level of other competent professionals in the same field. Losses,
damages, or injuries sustained by a client due to a professional’s failure to provide that level of skill
and education may be considered professional negligence.

For example, Mary hires an attorney to file a personal injury lawsuit after she was involved in a car
accident. The attorney failed to file the lawsuit within the statute of limitations, and Mary was left
with no rights to recover damages for her injuries. Mary then hired another attorney to assist her
with a claim of professional negligence against the first attorney, who had acted negligently in
handling Mary’s claim.

Suing for Negligence

Any person or entity can sue another for negligent conduct. Most employ an attorney with
experience in the specific area of law that pertains to the act, such as personal injury, employment
law, medical malpractice, and others. A lawsuit for negligence begins with the filing of a Complaint
and Summonswith the court. The Complaint must explain in detail the relationship between the
parties, the act or failure to act of the party being sued (the “defendant”), the injuries or damages
sustained as a direct result of the defendant’s actions, and the specific award sought.
A copy of the Complaint and Summons must be personally served on the defendant by an individual
not involved in the suit, such as a professional process server, the constable or sheriff, or even a
friend. The defendant then has the opportunity to file an Answer addressing the issues in the
Complaint. The civil lawsuit moves forward from that point with discovery, hearings, settlement
conferences, and perhaps a trial. Civil lawsuits may take anywhere from weeks to years to come to
a conclusion, depending on the issues involved.

RECKLESSNESS
In criminal law and in the law of tort, recklessness may be defined as the state of mind where a
person deliberately and unjustifiably pursues a course of action while consciously disregarding any
risks flowing from such action.52Recklessness is less culpable than intentional wickedness, but is
more blameworthy than careless behaviour.

52 The precise definition of recklessness is a subject of debate.

Mens rea and actus reus
To commit a criminal offence of ordinary liability (as opposed to strict liability)
the prosecution must show both the actus reus (guilty act) and mens rea (guilty mind). A person
cannot be guilty of an offence for his actions alone; there must also be the requisite intention,
knowledge, recklessness, or criminal negligence at the relevant time. In the case of negligence,
however, the mens rea is implied.

Criminal law recognizes recklessness as one of four main classes of mental state constituting mens
rea elements to establish liability, namely:

•Intention: intending the action; foreseeing the result; desiring the result: e.g. murder.
•Knowledge: knowing of the falsity or wrongfulness of one's actions or knowledge of a risk that a
prohibited result is likely to occur but proceeding anyways. This also includes wilful blindness in
most jurisdictions, and recklessness in some others. An example would be offenses involving
possession: the accused must have controlled the item and knew that it was contraband.
•Wilful blindness: having a subjective awareness that a risk could exist (but not necessarily full
knowledge) but proceeding without making more inquiries, e.g. a person is asked to bring a suitcase
across a border: the person may not know that the suitcase contains drugs but has some suspicions
(the person may think the suitcase could contain large sums of money) and, without ever asking or
checking what's inside, bringing the suitcase across the border.
•Recklessness: willingly taking an initial action that a reasonable person would know will likely
lead to the acteus reus being committed, e.g. drinking alcohol and then driving as a result of
automation due to intoxication.
•Carelessness (also known as negligence): failing to exercise due diligence to prevent the actus reus
that caused the harm from occurring - rarely used in criminal law, often encountered in regulatory
offenses (e.g. careless driving) or in the civil law tort of negligence - these are known as strict
liability offenses.
The tests for any mens rea element relies on an assessment of whether the accused had foresight of
the prohibited consequences and desired to cause those consequences to occur. The three types of
test are:

1.subjective where the court attempts to establish what the accused was actually thinking at the time
the actus reus was caused;
2.objective where the court imputes mens rea elements on the basis that a reasonable person with
the same general knowledge and abilities as the accused would have had those elements,
(although R v Gemmell and Richards deprecated this in the UK);53or

53 R v Gemmell and Richards

3.hybrid, i.e. the test is both subjective and objective
The most culpable mens rea elements will have both foresight and desire on a subjective basis. A
subjective test is applied to offenses requiring intent, knowledge or wilful blindness. For
recklessness, a subjective test is applied to determine whether accused wilfully took an initial action
that is inherently risky (such as drinking alcohol) but an objective test is applied to determine
whether the commission of the acteus reus could be foreseen (by a reasonable person).

For carelessness, once the prosecution proved the acteus reus, the defendant must prove the they
exercised all the care a reasonable person would to prevent the actus reus from occurring.

Recklessness shows less culpability than intention, but more culpability than criminal negligence.

There are also absolute liability offenses such as speeding. These do not require a guilty mind and
due diligence is not a defense but a person cannot be imprisoned for an absolute liability offense.

Recklessness usually arises when an accused should be aware of the potentially adverse
consequences to the planned actions, but has gone ahead anyway, exposing a particular individual
or unknown victim to the risk of suffering the foreseen harm but not actually desiring that the
victim be hurt. The accused is a social danger because they gamble with the safety of others, and,
unless they exercised all possible due diligence, the fact they might have acted to try to avoid the
injury from occurring is relevant only to mitigate the sentence. Note that gross criminal negligence
represents such a serious failure to foresee that in any other person, it would have been recklessness.

A statutorily defined offence will be presumed to require mens rea, even if the Act is silent on the
issue.

Criminal systems of the civil law tradition distinguish between intention in the broad sense (dolus
directus and dolus eventualis), and negligence. Negligence does not carry criminal responsibility
unless a particular crime provides for its punishment.

Negligance and recklessness under other legal system

Procedure in the United States

Negligance

The United States generally recognizes four elements to a negligence action: duty, breach,
proximate causation and injury.54 A plaintiff who makes a negligence claim must prove all four
elements of negligence in order to win his or her case. 55 Therefore, if it is highly unlikely that the

54 Larson, Aaron (21 December 2016). "Negligence and Tort Law". ExpertLaw. Retrieved 22
September 2017.
55Healey, Paul D. (1995). "Chicken Little at the Reference Desk: The Myth of Librarian Liability". Law
Library Journal. 87: 515. Retrieved 22 September 2017.
plaintiff can prove one of the elements, the defendant may request judicial resolution early on, to
prevent the case from going to a jury. This can be by way of a demurrer, motion to dismiss, or
motion for summary judgment.56

The elements allow a defendant to test a plaintiff's accusations before trial, as well
as providing a guide to the finder of fact at trial (the judge in a bench trial, or jury in a jury trial) to
decide whether the defendant is or is not liable. Whether the case is resolved with or without trial
again depends heavily on the particular facts of the case, and the ability of the parties to frame the
issues to the court. The duty and causation elements in particular give the court the greatest
opportunity to take the case from the jury, because they directly involve questions of policy.The
court can find that regardless of any disputed facts, the case may be resolved as a matter of law
from undisputed facts because as a matter of law the defendant cannot be legally responsible for the
plaintiff's injury under a theory of negligence.57

On appeal, depending on the disposition of the case and the question on appeal, the
court reviewing a trial court's determination that the defendant was negligent will analyze at least
one of the elements of the cause of action to determine if it is properly supported by the facts and
law. For example, in an appeal from a final judgment after a jury verdict, the appellate court will
review the record to verify that the jury was properly instructed on each contested element, and that
the record shows sufficient evidence for the jury's findings. On an appeal from a dismissal or
judgment against the plaintiff without trial, the court will review de novo whether the court below
properly found that the plaintiff could not prove any or all of his or her case.58

Reckllessness United States

Black's Law Dictionary defines recklessness in American law as "Conduct whereby the actor does
not desire harmful consequence but...foresees the possibility and consciously takes the risk," or
alternatively as "a state of mind in which a person does not care about the consequences of his or
her actions." Black's Law dictionary 1053 (Bryan A. Garner ed., 8th ed. abr. 2005). In American
courts, like English courts, a wrongdoer is found guilty of recklessness based upon the subjective
test rule, where the accused must have had the same reasonable knowledge or ability to know the
circumstances surrounding the incident in order to be found guilty of recklessness.

56Currie, David P. (Autumn 1977). "Thoughts on Directed Verdicts and Summary Judgments". The
University of Chicago Law Review. 45 (1): 72–79. JSTOR 1599201
57McLauchlan, William P. (June 1977). "An Empirical Study of the Federal Summary Judgment Rule". The
Journal of Legal Studies. 6 (2): 427–459. Retrieved 22 September 2017.
58 Hofer, Ronald R. (1990). "Standards of Review - Looking beyond the Labels". Marquette Law
Review. 74. Retrieved 22 September 2017.
 In American tort law, recklessness of the tortfeasor can cause the plaintiff to be
entitled to punitive damages. Although there is no difference in the quantity of punitive damages
awarded for recklessness rather than malice,plaintiffs may still desire to prove maliciousness
because, in American bankruptcy law, debts incurred through willful and malicious injuries cannot
be discharged in bankruptcy,but debts incurred through recklessness can.

The modern definition of recklessness has developed from R v

Cunningham [1957] 2 QB 396 in which the definition of 'maliciously' for the purposes of
the Offences against the Person Act 1861 was held to require a subjective rather than objective test
when a man released gas from the mains while attempting to steal money from the pay-meter. As a
result, the gas leaked into the house next door, and partially asphyxiated the man's mother-in-law.
The Court of Criminal Appeal reversed the conviction by the trial judge because "maliciously" was
read to mean that the result was a reasonably foreseeable consequence of the defendant's actions,
saying:
In any statutory definition of a crime, malice must be taken ... as requiring either:
(1) an actual intention to do the particular kind of harm that in fact was done; or
(2) recklessness as to whether such harm should occur or not (i.e. the accused has foreseen that the
particular kind of harm might be done and yet has gone on to take the risk of it).

This type of recklessness is called "Cunningham recklessness".59

The current test in England and Wales is thus one of subjective recklessness, as reaffirmed by the
House of Lords in R v G [2003].60

CONCLUSIONThe number of criminal negligence cases has increased in the past years. It is being
used as an effective tool against the ministers of our country when they fail to take requisite care in
the exercise of their duty. For example, recently, the Chief Minister of Uttarakhand, Mr. Vijay
Bahuguna was accused of criminal negligence as he did not take adequate measures to safeguard
the state against the floods61 . Negligence as a wrong may incur both tortious and criminal liability.
However, the distinction between the civil and criminal liability for negligence is clear. Only gross
negligence, i.e. an aggravated form of negligence is punishable as a crime. Unlike the English law,
which has only manslaughter as a crime based on negligence, IPC marks fourteen kinds of offences
based on criminal or gross negligence. In this context, negligence must be differentiated from
recklessness. The most important section under IPC for criminal negligence is section 304A, which
covers homicide by negligence. Medical negligence emerges out as a crime under the purview of
this section, which has become an important issue these days. Medical professionals with

59 Ormerod, David. Smith and Hogan's Criminal Law. Thirteenth Edition. Oxford University Press. 2011.
Pages 118 and 119.
60 R v G [2003] 3 WLR 10603 WLR 1060
61 Uttarakhand floods: BJP accuses state government of criminal Negligence (August, 2013)
inadequate skills or those who exercise improper skills can be tried under this section. Section 304A
covers only cases in which death is resulted; cases of endangering of life, hurt and grievous hurt are
covered by Sections 336, 337 and 338 respectively. Whether negligence is a form of mens rea and
whether negligence should be a basis of criminal liability are highly debatable issues. A layman
does not want to be held liable for his negligent acts, as he considers them acts done by mistakes or
unconsciously, and punishing them for unconscious acts would be fruitless. However, the State still
imposes this liability on individuals in the hope that next time, they would be more conscious in
those situations and improve their behavior.