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CONCEPT OF LIABILITY

THE NATURE OF LIABILITY

In civilized societies most of the relation between the individual and the state are

governed by rules made or recognized by the state; that is, law. Law lays down the rights

and duties of the individuals.

In other words, it prescribes what one is to do and what one is not to do and what one is

entitled to get "it” done.

A branch of these rules is called wrong. When a person has committed a wrong, he is

said to be liable. Thus, liability is the condition of the person who has committed a

wrong.

Liability or responsibility results from a wrong of breach of duty. It is something which a

person must do or suffer on account of his failure to do what he ought to have done

"duty”. A person has a choice in fulfilling his duty, but liability arises independently of

one’s choice.

Liability is the "vinculum juris”, i.e. the bond of legal necessity that exists between the

wrongdoer and the remedy of the wrong.

Liability differs from obligation in as much as the latter refers to what a person ought to

do on account of some duty cast upon him but the former refers to something which the

person must do or suffer because he has already failed to do.

One of the traditional fields of orthodox jurisprudence is liability. This also ahs felt the impact of new jurisprudence1.

1 P.B.Mukherji, The new jurisprudence, P.I3

874

The term liability, which occupied a place of pride in the hierarchy of the legal concepts

has in English law been used to express three things.

1) It has been used to express the position of person who has undertaken to do or to

abstain from doing something by contract with another person.

2) The term has been used to express the condition of person who has failed in the

performance of source duty, and who is consequently, called upon to make

compensation to some person who has suffered damage thereby.

3) The term “liability” has been used to express the condition of a person who has

not failed in the performance of any duty, but who has done an act which has caused damage to another for which he is required to make compensation1.

The duty to fulfill a contract and the duty to make compensation for damage caused by an

act which is not a breach of duty are primary duties, whereas duty to make compensation

for damage caused by a breach of duty is a secondary one.

Liability “ex-conlracto ” which is liability to a primary duty and liability “ex-delicto ”,

which is liability to a secondary duty have long since been recognized as two sub­

divisions of the same class.

DEFINITION OF LIABILITY

Liability, as defined by SALMOND, is the bond of necessity that exists wrongdoer and the remedy of the wrong2 has more often been said to have

contract or delict.

Roman lawyers seem to have had some similar notion, and they tried to squeeze all

liability under those two expressions by adding to each class a number of things which did not properly holding to it, which they called “quasi-contract ” and “quasi-delicit"3.

Very likely the Roman law had some good practical reason for so doing.

between the

arisen out of

1 MARKBY, Elements of Law (3rd Ed. 1885) P.2922 SALMOND : Jurisprudenc (12th Ed.) P.349’ MARKBY : Op.eit. PP 293-294

875

English lawyers seem to have kept up the distinction between contract and delict chiefly

because of the rule which one existed as to the joinder of actions; an important branch of

that rule being that causes of action arising on a breach of contract could not be joined with causes of action arising on a delicit1. But there is a good deal of liability which is

never considered as arising out of either the one or the other, for instance, the liability of

trustees or the liability of a person who has used a ferry to pay the toll. Of course, it

would be possible to extend the word "delict" so as to cover any breaches of duty, but

this extension has rarely been made. By “delicts" only certain classes of breaches of

duty are intended. English lawyers often called them torts.

According to MARKY : “the word liability is used to describe the condition of a person

who has a duty to perform ".

According to AUSTIN, liability consists in those things which a wrongdoer must do or

suffer. It is the ultimatum of law and has its source in the supreme will of the state.

Liability rises from a breach o duty which may be in the form of an act or omission.

AUSTIN prefers to call liability as "imputability". To quote him, “these certain

forbearnaces, commissions or acts, together with such of their consequences as it was the

purpose of the duties to avert are imputable to the persons who have forborne, omitted or

acted. Or the plight or predicament of the persons who have forborne, omitted or acts, is

styled imputability”.

It is thus evident that liability arises from a wrong or the breach of a duty in law.

Liability is in the first place either civil or criminal and in the second place either

remedial or penal. In the case of criminal/ penal liability the purpose of the law, direct or

ulterior, is or includes the punishment of a wrongdoer while in the case of remedial

liability the law has no such purpose at all; its sole intent being the enforcement of the

plaintiffs right, the idea of punishment being wholly irrelevant. The liability of a

1 Some peculiar expressions in English law, such as, a tort founded on a contract, or a tort flowing from a contract, were perhaps invented to get rid ot the objection of misjoinder. The only questions now affected by the considerations of whether a claim is founded on a contract or on a tort seem to be the amount of costs ot be allowed in an action and the jurisdiction of country courts, see, Campbell on Negligence, 2nd Edn. P.19

876

borrower to repay the money borrowed by him is remedial and that of the publishers of a

libel to the imprisoned or to pay damages to the person injured by him is penal. All

criminal liability is penal while the civil liability is sometimes penal and sometimes

remedial.

KINDS OF LIABILITY

Liabilities can be of many kinds. There are civil and criminal liability, remedial and

penal liability, vicarious liability and absolute or strict liability.

CIVIL LIABILITY AND CRIMINAL LIABILITY

Civil liability is the enforcement of the right of the plaintiff against tire defendant in civil

proceedings. Criminal liability is the liability to be punished in criminal proceeding. A

civil liability gives arise to civil proceedings whose purpose is the enforcement of certain

rights claimed by the plaintiff against the defendant. Examples of civil proceedings are

an action for recovery of a debt, restoration of property, the specific performance of a

contract, recovery of damages, the issuing of an injunction against the threatened injury,

etc.

It is possible that the same wrong may give rise to both civil and criminal proceedings.

This is so in cases of assault, defamation, theft and malicious injury to property. In such

cases, the criminal proceeding are not alternative proceedings but concurrent

proceedings. Those are independent of the proceedings. The wrongdoer may be

punished by imprisonment. He may be ordered to pay compensation to the injured party.

The outcome of proceedings in civil and criminal liability is generally different.

In the case of civil proceedings, the remfedy is in the fonn of damages, a judgment for the

payment of debt, an injunction specific performance, delivery of possession or property, a

decree of divorce, etc. The redress for criminal liability is in the form of punishment

which may be in the form of imprisonment, fine or death. In certain cases, the remedy

for both civil and criminal liability may be he same, viz. the payment of money. In

certain cases, imprisonment may be awarded for both civil and criminal liability. Even in

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a child case, if a party dares to defy an injunction, he can be imprisoned. Civil liability is

measured by the magnitude of the wrong done but while measuring criminal liability we

take into consideration the motive, intention, character of the offender and the magnitude

of the offence.

DISTINCTION BETWEEN CIVIL AND CRIMINAL LIABILITY

About the distinction between the two, different jurists have given different views.

AUSTIN says : "an offence which is pursued at the discretion of injured party or his

representatives, is a civil injury. An offence which is pursued by the sovereign or by the

subordinates of the sovereign is a crime...All absolute obligations are enforced

criminally".

SALMOND’s view is that "the distinction between criminal and civil wrong is based on

any different in the nature of the right infringed, but on a difference in the nature of the

remedy applied".

One view is that the main difference between the two lies in the procedure. In other

words their procedures are different. Generally, four points of distinction between the

two have been put forward:

1) Crime is a wrong against the society but a civil wrong is a wrong against a private

individual or individuals.

2) The remedy against a crime in punishment but the remedy against the civil

wrongs is damages.

3) A third difference between the two is that of the procedure. The proceedings in

case of a civil wrong are called civil proceedings and criminal and civil

proceedings takes place in two different sets of courts.

4) The liability in a crime is measured by the intention of the wrongdoer; but in a

civil wrong the liability is measured by the wrongful act and the liability depends

upon the act and not upon the intention.

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POINTS OF DISTINCTION NOT WELL FOUNDED

It is submitted that most of those points of distinction between the two are not well

founded. To take the first point, there are wrong which are against the sate or society, but

they are not considered as crimes, for example, a breach of a contract by an individual

made with the state is not a crime. In the same way, there are wrongs which are only

against a private individual made with the state is not a crime. In the same way, there are

wrongs which are only against a private individual but they are considered as crimes.

Secondly sometimes civil proceedings result in punishment. For example, in the case of

disobedience of an injunction granted by a court punishment is awarded although it is

civil proceeding.

Thirdly to say that the measure of criminal liability is intention and of civil liability in the

wrongful act itself is also not occrect. In modern times "mens rea (intention) ” has gone

under an eclipse and the question of intention has become more of a form than of a

substance. Tire distinction on the basis of proceedings is more sound and contains

substantial truth. Though in some cases civil and criminal both the proceedings can be

instituted for the same act they are always different and are regulated by two different

sets of rules.

THEORY OF REMEDIAL AND PENAL LIABILITY

Civil and criminal liability cannot be treated as identical with that between remedial and

penal. For the distinction has been made on the notion of the legal consequences of the

action against the wrong. Thus where after a successful proceeding the defendant is

ordered to pay compensation for damages, or to pay a debt or to make a specific

performance of a contract, the liability"may be known a remedial, but where it after a

successful proceeding the wrongdoer is awarded punishment, which may be the fine,

imprisonment etc. it may be called penal liability. Though civil liability may generally be

remedial and the criminal penal, the argument is not always true, because in some cases

liability may be both remedial and penal. So also is true of criminal liability, though in

exceptional cases.

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Remedial Liability

In so far as remedial liability .is concerned it is founded on the well-known maxim

- “ubi jus ubi remedium” which means, where there is right, there is remedy.

Thus where the law creates or imposes duty, it also enforces its specific

performance. For every breach of duty, there is a remedy in the law. But there

are certain exceptions where the duty is not specifically enforced.

fl D UTIES OF IMPERFECT OBLIGA TION

In the first place, there are duties of imperfect obligation. A time-barred

debt is an example of it. Thought eh debt exists in law, it is not

enforceable.

Ul Duties which by Nature are Incapable of Specific Performance

Another exception of the rule are duties of such a nature, which once

broken cannot be specifically enforced, for example, in an act done the

defendant cannot be made to refrain from it. Everyone has a right to

reputation, and therefore, there is a corresponding duty imposed on others

not to violate such right. But if at a libel, is committed the specific

enforcement of corresponding duty of defendant “i.e. the person who has

committed libel’’ is not possible. In other words, once a mischief has been

done, it cannot be undone. In such case damages are perhaps the only

adequate remedy.

in) Where Specific Performance is Inexpedient or Inadvisable

In the third place, there are cases where thought eh specific performance

of duty is plausible, the tew does not enforce its specific performance but

rather awards damages to the plaintiff. For example, law does not enforce

the specific performance of a promise of marriage or painting to picture

but normally award damages in such cases.

880

In other words, “ubi jus ibi" remedium - which means where there is right there

must be a remedy.

When law creates a duty it ensures its fulfillment also. For the breach of duty

there is some remedy prescribed by law, and it is enforced by law.

Thus, the purpose of remedial liability is to ensure the specific enforcement of

plaintiffs rather than punishing the wrongdoer.

According to the theory of remedial liability whenever law creates a duty it

should enforce the fulfillment of such duty. The law imposes remedial liability on

one who fails to perform such duty.

Briefly ordinarily a duty is enforced by law except in the following cases where

law will not enforce the same.

1) Duties of imperfect application, e.g. time-barred debt

2) Incapable of specific performance due to its intrinsic nature — here only

compensation will come into play e.g. tarring one’s reputation.

3) Specific performance inexpedient - promise of marriage. Court would not

insists on enforcing a marriage.

-In all above cases duty is there but it cannot be enforced. Remedy is lost.

2) Penal Liability

As stated earlier, the main purpose of penal liability is either directly or indirectly,

to punish a wrong-doer.

The basic principle underlying penal liability is contained in the maxim - "actus

non facit reum, nisi mens sit rea ” which means that act alone does not amount to

crime, unless it is accompanied by guilty mind. Therefore, two elements i.e.

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i) act; and

ii) guilty mind

are essential to constitute a crime. No person can be punished merely because his

act resulted into some crime unless it was accompanied by “Mens Rea” or guilty

mind. Conversely, mere presence of “mens rea" shall not constitute a crime

unless it is accompanied by some act. Thus "act ” is he physical element of the

crime and “mens rea ” is the mental element.

Generally a man is hold criminally liable only for those wrongful acts which he

does either willfully or negligently. There are, however, some exceptional cases

when law imposes strict liability as in case of offences under the lincensing acts

or offences against public health. In such cases, the act itself becomes punishable

even without the presence of guilty mind or negligence. That apart, the criminal

law exempts certain categories of cases from penal liability. These are commonly

known as defences or general exceptions and include mistake of act, accidents,

infancy, minority, necessity, self-defence, voluntary intoxication, etc. If the

offender succeeds in establishing any of these defences, he is not punished though

his offence may satisfy the two conditions of “actus ” and “mens rea".

The maxim “actus non facit reum nisi mens sit rea” stated long before by St.AUGUSTINE1, became, with slight change the best known maxim of the

English criminal law though the words ultimately used by COKE. As late as in

1798, KENYON, C.J. had stated that “the intent and act must both concur to

constitute the crime”. Since that time the English reports do not show any case in

which the authority of Lord KENYON has been denied by the English courts.

1 St AUGUSTINE had said : "Ream Lmguam non facit nisi mens rea", sermons no. 180 C.2; cited m Pollock & MaiHand, Hist. Of English law, 11476, N.5

882

The maxi thus, which has been accepted by the English courts as a cardinal

doctrine of English law for centuries, recognizes that there are two constituent

elements in crime,

i) A physical element, and

ii) A mental element, and

It makes plain that at common law no man may be found guilty of crime and

therefore legally punishable unless in addition to having brought about a harm

which the law forbids, he had at the time a legally reprehensible state of mind. It

is, therefore, necessary to reach an understanding of these two constituent parts of

criminal responsibility.

According to AUSTIN intention and negligence are the alternative forms in which

‘‘mens rea” can exhibit itself. It is a condition precedent for the existence of

guilt. In other words, a person is liable to be punished if he does a wrongful act

intentionally or negligently.

SALMND calls it the physical or material condition of liability. If there is no act,

there can be no punishment.

To quote Justice BRYAN : “the thought of man cannot be tried, for the devil itself

knoweth not the thought of man

KENNY gives the following example : “a man takes an umbrella from a stand at

his club with intent to steal it, but finds it his own”. He has committed no

offence. The second condition 6f penal liability is “mens rea" or guilty mind.

An act is punishable only if it is done intentionally or negligently. Intention and

negligence are the alternative forms in which “mens rea ” can exhibit itself.

The conditions of penal liability, the act does not constitute a guilt unless it is

done with a guilty intention. Two things are required to be considered in this

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connection and those are the act and the “mens rea” or the guilty mind of the doer

of the act. "Mens rea ” requires the consideration of intention and negligence.

The act is called the material condition of penal liability and the "mens rea” is

called the formal condition of penal liability.

ACT

An act is not capable of being defined in exact terms. It denotes only such physical facts

which follow immediately upon the determination of will to effect them.

SALMOND defines act as “any event which is subject to the control of human will”.

AUSTIN defines act as a "movement of the will. It is the bodily movement caused by

volition — a volition being a desire for bodily movement which is immediately followed by

such movement provided the bodily members is in a normal condition”.

The view of HOLMES is that “an act is always a voluntary muscular contraction and nothing else”1. Thus, according to AUSTIN & HOLMES both the jurists an act is a

wiled movement of the body.

SALMOND takes “act” in a wider sense. He says "we mean by it (act) any event which

is subject to the control of human will”. S ALMOND’s use of the word "event” is of

great significance. “Event” is not an act in the strict sense nor is movement, but

SALMOND by act means those events which are subject to the control of human will.

An act consists of three stages:

a) Its origin in some mental or Bodily activity or passively of the doer

b) Its circumstances, and

c) Its consequences.

The Common Law

884

For example, if we take theft it has five ingredients1.

1) Dishonest intention to take property.

2) The property must be movable property

3) It should be taken out of the possession of another person.

4) It should be taken without the consent of the person, and

5) There must be some moving of the property in order to accomplish the taking of

it.

If we examine the ingredients in the light of the above definition we can say that it is an

act according to the definition.

Leaving the first ingredient which is the second condition - mens rea “that shall be

discussed later on” if we arrange the other ingredients in the light of the definition,

intention to take the property is a mental activity where the act originates.

The circumstances are : the property must be movable “ingredient-2 it should be taken

without the consent of that person “ingredient-4” there must be some moving of the

property in order to accomplish the making of it “imgredient-5 The consequence is

that the property is taken out of the possession of another person “ingredient-3

A theft would take place when all the ingredients are complete. When we use the word

“act" as condition of penal liability it is used in its wider sense, and not in its limited as

sense as the movement of the body only. Therefore, the definition given by SALMOND

is move accurate than the definition by AUSTIN and HOLLAND.

The law prescribes under what circumstances and consequences an act shall be

punishable or, in other words, a person committing the act shall be under penal liability.

The circumstances so prescribed are relevant in determining whether a particular act

“wrong” has taken place or not. A person is liable only for his own acts and not for the

acts done by others, or the events which are independent by human activity.

1 See section 378 of the Indian penal code

885

From legal point of view, an act does not necessarily mean a bodily movement or a

muscular contraction alone, but it must be accompanied by the consequences to the

attainment of which the original act is directed or aimed at.

For example, a man will not be held liable for gales, thunderstorms and other natural calamities1 which are beyond human control. Nor shall a man be liable for his thoughts

and intentions alone unless they are actually transformed into an act. It may be pointed

out that a bodily movement or muscular contraction alone shall not be act unless it is

caused by volition which is a movement caused by human will. The reason being that

muscular contraction may be due to some disease or pain and may not be intentional at

all.

It is significant to note that for the purposes of penal liability the "act” also includes

within it “omission An omission consists in not performing an act which is expected of

a man because he normally does it or because he ought to do it. Thus, omissions in our

liability where there is a duty to act.

ACT AND EVENT DISTINGUISHED

The distinction between act and event also deserves consideration.

An act must be purposeful but an event is purposeless.

IHERING illustrates the distinction between an act and an event by an example. A

jumped down from a tower because he wanted to kill himself. Here jumping constitutes

an act. It is composed of muscular movement which is necessary for jumping. The

jumping is also done with a purpose of killing himself. But A’s losing life by a fall from

the tower is an event. The falling, therefore, is an event and not an act. This is so

because it does not consist of any bodily movement following upon volition.

An act is an event which is subject to the control of the human will.

1 In legal terms they are called “act of God" or vis major

886

1) It may be positive or negative, i.e. doing something or omitting to do something.

2) Internal or external i.e. acts of mind or act of body.

3) Intentional or unintentional : an act is intentional when it is foreseen and desired

by the doer.

Three aspects of act:

a) Origin

b) Circumstances

c) Consequences

Illustration : shooting -physical doing of the act.

Origin : a person is in range of revolved

Circumstances: the bullet enters the body of the man - consequences.

Law punishes acts sometimes considering the hour at which these are done, e.g., house

breaking at night.

KINDS OF ACTS

The various kinds of acts are:-

11 Voluntary and Involuntary Acts

For the purposes of law, the distinction between voluntary and involuntary acts in

important. A voluntary act consists in a willed muscular contraction which incurs

liability by virtue of circumstances in which it is committed or the consequences

which flow from it. In short, if the act is willed, i.e. deliberate, it is a voluntary

act. Involuntary act, on the other hand, is not willed this is, absence of will makes

the act involuntary. Activities beyond normal human control such as beating of

human control such as beating of one’s heart, sneezes and twitches, acts done in

sleep or in a fit of automation are the examples of involuntary acts. Involuntary

acts incur no liability.

887

21 Intentional and Unintentional Acts

When an act is desired and foreseen by the doer, it is called an intentional act but

when it was not willed towards the actual result and cannot be said to be its

consequence, it is called unintentional. For instance, A shoots at B with the

intention that it should cause B’s death, the act of A is intentional and he shall be

punished for the offence of homicide under Section 302 IPC. But if A fires at a

bird on a tree and the bullet from his gun glanced off the bough of a tree and his

B, who carried the cartridges and injured him, A would not be liable because the act is unintentional1. It is rather an accidental act.

■ 3) Internal and External Acts

Internal acts are the acts of mind while external acts are the acts of body. Thus, to

think is an internal act, to speak is an external act. Every external act is precedent

by an internal act, but every internal act need not necessarily be followed by an

external act.

The internal or external acts may either be “positive or negative ”. According to

Dr.SETHNA, “mental passivity signifies an internal negative act while mental

activity shows an internal positive act. A man who, seeing a drowning person,

think whether to rush for help or not, he is said to have committed an internal

positive act as soon as he arrives at the decision to rush forwards to help the

drowning person. If he actually rushes to help, his physical act is called an

external positive act, but if he sits quiet and decides not to move for help, this act of sitting quiet is an external negative act”2. Where a man deliberately abstains

from doing an act, his forbearance is an outcome of his desire and, therefore, it is

an internal negative act. Whefe a man forgets to do something which he is

supposed to do, his act of forgetting is unintentional negative act.

1 STANLEY V. POWELL (1891) 1 QB 862 Dr.SETHNA : Jurisprudence P.417

888

WRONGFUL ACTS

Every wrong is an act which is mischievous in the eyes of law, that is, an act to which the

law attributes harmful consequences. These consequences may be of two kinds, namely,

1) Actual, or

2) Anticipated

Thus, there are acts which actually result in harmful consequences while there are others

which may not lead to harmful consequences but which are nevertheless regarded as

mischievous under the law. In other words, wrongful acts from the point of view of their

consequences, can be placed in the following two categories:-

1) Those which are actionable without the proof of actual damages, e.g. trespass,

libel, etc. which are actionable “per se ”.

2) Those which are not actionable without the proof of actual damages e.g. malicious

prosecution, deceit, breach of contract, etc. The loss if any incurred in these cases

may, however, be relevant to decide the quantum of damages.

Criminal liability usually arises on proving that the act was dangerous or mischievous

even though it did not causes any harm. An unsuccessful attempt is also a ground for

criminal liability like a completed offence. Thus, dangerous and rash driving or riding is an offence1 punishable under the law though no harm is caused.

As to the civil liability, no corresponding general principle like that of penal liability, can

be laid down. In some civil cases proof of actual damages is insisted upon while in

others there is no such necessity. As stated earlier, in case of criminal responsibility,

persons are judged by their acts and by the mischievous tendencies of them, but so far

civil liability is concerned they are often judged by the actual event. The difference

between the two, as pointed out by SALMOND can be illustrated thus:-

Criminal law says, “you should not do this, if you do this you will be punished". Civil

law on the other hand, says, “you may do this, but if any evil consequences chance to

' Sec. 279 IPC

889

follow, you will be held liable The essence of civil liability is contained in two latin

maxim, namely,

1) Damnum sine injuria, and

2) Injuria sine damno

DAMNUM SINE INJURIA

All wrongs are mischievous in the eyes of law but the converse is not true. There may be

cases in which damage is caused knowingly and willfully but the law will not hold the

wrongdoer accountable for it. The law ignores the harm of his nature because no legal

injury is caused. Such cases are covered under the maxim - damnum sine injuria. The

word "injury” signifies “an act contrary to law" or violation of legal right. The maxim

means that damage without “injuria ” “infringement of right” is not actionable. Mereloss

in money or money’s worth does not itself constitute legal damage and is not a good

ground of action. There are many acts, which though harmful, give right of action to him

who suffers their effects. Damage so done and suffered is called "damnum sine injuria”

i.e. actual and substantial loss without infringement of any legal right and in such cases

no action lies. Hence the maxim implies that loss or detriment is not a ground of action,

unless it is the result of a species of a wrong of which the law takes cognizance. Thus if I

have a mill, and my neighbour sets up another mill, and thereby the profits of my mill fall

off, I cannot bring an action against him eventhough, I have suffered damage.

SALMOND’S CLASSIFICATION

SALMOND classifies the principal cases of “damnum sine injuria ” as follows:

i) Where the harm is caused by a persons’ lawful exercise of his own right, as in the

case of loss inflicted on individual traders by competition in trade.

ii) Where the defendant exercises alright to his property.

iii) Where the damage is caused by a man acting under necessity.

iv) Where the harm complained is too trivial, too indefinite or too difficult to prove

for effective legal recogniton.

v) Where the harm caused is of such a nature that the law considers it expedient to.y

confer any right of pecuniary redress upon the individual’s injury.

890

According to SALMOND, the cases covered under the maxim “damnum sine injuria”

can be grouped in two categories, as under:'

1) Cases in which there is an injury to an individual but the society as a whole is

benefited, therefore such acts are not actionable. For example, competition in

trade might result into harm to some traders but the society in general is benefited by it. Therefore, harm caused thereby is not "injury1" and hence does not incur

civil liability. Again, a land owner may so excavate his land as to withdraw

support need for adjoining building or he may drain away water which supplies his neighbour reservoir2. These acts may be harmful to individuals nevertheless

they are justified in law for they are in public interest.

2) The second category of cases falling under the maxim “damnum sine injuria” includes all those cases in which the harm caused is so insignificant or trivial3 in

nature or so difficult to prove that any attempt to prevent them shall “make the remedy worse than the disease ”4. There are number of leading cases on the

subject, some of them being

Aj Gloucester Grammar School Case

The defendant a school maser, set up a rival school next door to the

plaintiff. Plaintiff sued the defendant for the loss. It was held that no suit

could lie on the ground that “bona fide ” competition can afford no ground

of action, whatever damage it may cause.

Bj Chasemore V. Richards(1819) 7H.L.C. 349

In this case a land owner and a mil owner who had for about six years

enjoyed the use of a stream, which was chiefly supplied by percolating

underground water; has lost the use of the stream after an adjoining owner

had dug, on his own ground an extensive well for the purpose of supplying

1 Mogul Steanship Co. V. Mac Gregor (1889) 23 GBD 6122 Allen V Flood (1898) AC 11 De minimus non curat lex4 Dr. WINFIELD : Textbook of law of torts (7,h Ed.) P.13

891

water to the inhabitants of the district. In an action brought by the land

owner it was held that he had no right of action.

INDIAN CASE

U Anand Singh V. Ram Chandra, AIR, 1963 MP. 28The defendant built two “pacca ” walsl on his land on two sides of his house. The

result of this action was that the water flowing through lane belonging to the

defendant and situated between defendant’s and pliantiff s houses damaged the

wall of the plaintiff. This was to be a case of "damnum sine injuria ".

2j Dhadphale V Gurav, (1881) 6Bom. 122

Where the servants of a Hindu temple had a right to get the food offered to the

idol, but the person who was under an obligation to the idol of offer food did not

do so, and the servants brought a suit against him for damage, it was held that the

defendant was under no legal obligation to supply food to the temple’s servants,

and though the result of his omission to supply food to idol and might involve a

loss to the plaintiff, it was “damnum absque injuria" and could not entitle the

plaintiffs maintain a suit.

INJURIA SINE DAMNQ

“Injuria sine damno" - literally it means injury without damages and is limited to those

kinds of breach of law which consists in the violations of another’s private rights. Law

recognizes certain permanent importance for an individual’s living in the society that an

infringement of it “ipso facto” presents a cause of action. The maxim, therefore, means

that where there is an infringement of an absolute private right is so infringe has a direct

cause of action. In such a case it is no ndcessary for the plaintiff to prove damage, for the

law presumes damage, when an absolute right is infringed. “Injuria sine damno”

therefore in other words, provides that actual perceptible damage, loss or detriment is not

indispensable as a foundation in an action for tort. Trespass to person i.e. assault, battery,

false imprisonment, libel and trespass to property, whether it be land or goods are

instances of tort that are actionable "per se

892

The maxim is just converse of the earlier maxim “damnum sine injuria”. There are

certain acts which though not harmful, are actionable. In other words, an injury without

damages incurs civil liability.

The case of “Ashby V. White"1 - the leading case on the maxim is "Ashby V White”

wherein it was held that where a person is injured in the exercise or enjoyment of a right,

an action is maintainable whether or not any material damage has been caused.

W, the returning officer, in a parliamentary election wrongly rejected A!s vote. The

candidates for whom A would have voted were elected. A sued W and was awarded

$200/- damages. In the course of his judgment Hott, C .J., observed “if a plaintiff has a

right, he must of necessity have a means to indicate and maintain it, and a remedy if he

in injured in the exercise or enjoyment of it must be provided; and indeed it is a vain

thing to imaging a right without a remedy for want of right and want of remedy are

reciprocal”.

The case of Ashby V. White is an illustration on the point of “Injuria sine damno In

this case the plaintiff was wrongfully prevented from exercising his right to vote by the

defendant returning officers in a parliamentary election. The candidate for whom the

plaintiff wanted to caste his vote had come out successful in the election, still the plaintiff

could recover damages against the defendants for maliciously preventing him from

exercising his statutory right of voting in the election. Lord HOTT CJ. observed that

there was the infringement of a legal right vested in the plaintiff hence the defendants

were liable. Since no actual damages were caused, the court awarded $20 by way of

recognition of plaintiffs legal right.

CAUSATION

In law, a man is held liable either for doing acts which are mischievous or for causing

actual injury to the plaintiff.

(1703) 1 ER417

893

Causation, therefore, is an important concept for determining liability in law. In fact,

before deciding the question of liability the question of causation should be decided first.

Thus, if A is to be held responsible for burning B’s house, he must first be shown to have

caused it.

Causation, therefore, is an important factor to determine responsibility whether it is of a

criminal or civil nature. The causation broadly involves two types of occurrences,

namely,

i) Abnormal factors;

ii) Human acts

Thus in the above illustration where a house has been burnt down, presence of

inflammable gas, ignition, an electric short circuit, etc. may be abnormal circumstances

causing fire or it may have been caused by some person. Once either of these factor is

found present, it is easy to know the causation and attribute responsibility.

An act may have been caused due to a change of causation involving several factors. It is

the established principle of law that a man is not held liable for his act if the chain of

causation is broken or interfered with. This is contained in the maxim - “novus actus

interveniens”.

SALMOND explains the maxim through an illustration. He says "if A stabs B and B is

taken to hospital where, despite the fact that he is shown to be allergic to terramyein, is

injected Math a large dose of it, then his treatment and not the stab would be treated as a

cause of B’s death because the treatment which was abnormal, broke the casual connection between the -wound by the accused and the victim's death ”/.

RV JORDAN, (1956)40 Cr.App R-152

894

The leading case on causation is relation to civil liability is “in Re Polemis1 ” wherein the

defendant’s servant carelessly dropped a plank into the ship’s hold, the plank struck a

spark which ignited petrol vapour whose presence in the hold was unsuspected. The

defendant’s were, however, held liable for damages caused to the ship. But this decision has been overruled by the Privy Council in Wagon Mound2 case and now forcibility of

consequences is the test for determining causation and liability.

In certain cases, the law will presume that a man has intended the natural and probable

consequences of his act. Thus in Scott V. Shepherd the defendant shepherd

mischievously threw a lighted cigarette squib into the market place. It fell where Yates

sold ginger-bread. One will is, to prevent injury to himself and Yates, picked it up and

threw it across when it fell in the shop of one Royal who took it and threw it across when

it struck the plaintiffs eye and injured it. The court held that the injury to the plaintiff

was directly and immediately caused by the defendant, as willis and royal, the

intermediate agents acted involuntarily and for self-protection. The injury was held to be

not too remote. It is true that the defendant did not intend to injure the plaintiff and much

less to destroy his eye, nevertheless, he was held liable for one must answer for the

consequences which common sense would attribute to his wrong doing.

MENS REA

It may be reiterated that a man is held criminal liable not for his act alone but if it is also

accompanied with “mens rea”or guilty mind with which he does it.

Thus, “mens rea’’ refers to the mental element necessary for the particular crime and the

mental element may either be intention to do the act or recklessness “or negligence ” as

to consequences of that act. Generally, the knowledge of the consequences is considered

as part of mens rea because mental condition of a man can be judge by his conduct and it

is rather difficult to peep whether he did the act intentionally or recklessly with the

knowledge of the consequence.

'(1921) 3 KB 5602 (1961) AC 388

895

Guilty mind "mens rea” may assume two forms, i.e.

1) Wrongful intention; or

2) Culpable negligence

A person shall be punished if he intentionally and willfully does an act which is

prohibited by the criminal law of the land. He shall also be criminally liable if he does a

forbidden act negligently or carelessly without bothering about the consequences

following there from. There are, however, some exceptional cases when a person is held

liable irrespective of his wrongful intention or culpable negligence. Such cases are

covered under what is known as the “strict liability’’ cases. Thus wrongs incurring penal

liability are of three kinds considered from the point of view of mens rea.

1) International or willful wrongs;

2) Wrongs of negligence;

3) Wrongs of strict liability which are independent of mens rea

The doctrine of mens rea has been well explained in the famous English case of R.V.TOLSON1. In this case a woman whose husband had deserted her married another

man before the expiry of seven years which was against English law relation to

marriages. The jury, however, found the woman "not guilty” of bigamy as the bonafide

believed that her husband had died. The court acquitted her of the charge of bigamy as

mens rea was not proved in this case.

Thus a mere act does not constitute an offence unless it is coupled with mens rea.

In other words, mens rea is an essential ingredient for a crime. Sir J.STEPHENS,

however, thinks that the doctrine mens reea is misleading. In his view, the doctrine

originated when offences were not defined unless the criminal law. Some persons found

that the crime consisted not merely in doing a particular act such as killing, stealing, etc.

but doing it with a paxticular knowledge or purpose. The mental condition came to be

'(1889) 15 Cox 629

896

called as mens rea. But now at the present stage when every offence is well defined, the

doctrine of mens rea has become unnecessary if not obsolete.

APPLICATION OF THE DOCTRINE OF MNES REA IN INDIA

Whatever may be the position of mens rea in English criminal law but this doctrine is

wholly out of place with reference to the Indian penal code.

As J.D.MAYNE, the learned author of criminal law in India, has pointed out, "every

offence is defined and the definition states not only what the accused must have done, but

the state of mind with regard to the act when he was doing it”.

For example, theft must involve dishonestly, cheating must be committed fraudulently,

murder must be committed either intentionally or knowingly. Thus, there is no need for

the general doctrine of mens rea in India since each definition of the offence is self-

sufficient. All that the prosecution has to do is to prove the various ingredients to a

particular offence which the accused is alleged to have committed.

EXCEPTIONS TO THE DOCTRINE OF MENS REA

Besides the fact that the importance of doctrine of mens rea has receded in modern times,

there are certain special circumstances which the law imposes strict liability. They are

exceptions to the doctrine of mens rea. These exceptions are:

a) Where the law imposes strict liability the requirement of mens rea is dispensed

with. For instance, the statues relating to matters concerning public health, food,

drugs, public safety and social welfare measures impose strict liability and the

presence or absence of mens red is irrelevant in such cases. Likewise, the motor

vehicle act, licensing legislations, etc. are covered under absolute liability rule and

presence of guilty mind is not a relevant factor to decide the guilty of the accused

in these cases.

897

The Privy council, however, observed that tire offences in which liability could be imposed without guilty mind must be comparatively far and few1.

b) In cases where it is difficult to prove mens rea and the penalties are petty fines,

the expediency demands that dispensation of the requirement of mens rea would

facilitate speedy disposal of trials. The accused can be fined even without the

proof of mens rea

c) It is not necessary to take mens rea into consideration in deciding cases relating to

public nuisance. It is so in the interests of public safety.

d) Mens rea is unnecessary in those cases which are criminal in form but in fact they

are only summary mode of enforcing a civil right.

e) Mens rea is not relevant in cases in which the plea of ignorance of law is raised inv

defence. In such cases the fact that the offender was not aware of the rule of law

and that he did not intend to violate it, is no defence and he shall be liable as if he

knew the law.

PRESUMPTION OF INNOCENCE

It is the fundamental principle of criminal law that everyone is presumed to be innocent

until his guilt is proved by the prosecution. This, in other words, means that a person

who is accused of a crime is not bound to make any statement or offer any explanation

regarding the incidence of crime. He stands before the court as an innocent person. It is

for the prosecution to prove the guilt of the accused beyond reasonable doubt. However,

there are certain exceptions to this fundamental doctrine of criminal law. They are:

a) The court may presume that a person who is in possession of stolen goods soon

after the theft is either a thief or a guilty receiver unless he has a satisfactory explanation for the possession of that goods2.

b) Where the accused pleads of protection under some of the exceptions “i.e.

defences”, the court need not presume innocence of the accused. In such

circumstances if the defence fails the accused will be convicted.

1 Sriniwas Mall Bairoliya V. Emperor (1947) 49 Bom LR 6882 Section 114 Illustration (a) of the Evidence Act

898

c) There are certain offences relating to trademark1, property mark2 and currency

notes3 under the Indian penal code the burden of proof of innocence is shifted on

the accused instead of the prosecution. In such cases the presumption of

innocence is negatived by the courts. In such cases the burden of proving

innocence is on the accused.

MAILCE

Malice in popular sense means ill-will or spite. In legal parlance it, however, means

wrongful intention. It includes any intent which the law deems wrongful. An act done

with a bad intention or with bad motive is said to have been done maliciously. An evil

motive is called “malice ”.

The term “malice, ’’ therefore, includes both forms of intent, viz.

1) Immediate, and

2) Ulterior

Motive is the ulterior object or intent, or the the ultimate purpose with which an act is

done.

In the case of “maliciousprosecution’’, the term does not mean intentional prosecution,

but a prosecution inspired by some motive which is disapproved by law. It is only in

exceptional cases that malice is the sense of improper motive is relevant for determining

the question of legal liability; otherwise the law merely asks what the defendant has done,

and not why he did it.

Malice “is a wish to injure the party rather than to vindicate the law4". It is indicative of

an evil mind which is disdainful of duties, social or legal, and disregards the duties to

others.

1 Sec 486 IPC2 Sec 487 & 488 IPC1 Sec. 489 E IPC4 POLLOCK on torts, I5,h Ed. P.237

899

In common parlance, malice means ill-will against a person, but in legal acceptation, it

means a wrongful act done intentionally without just cause or excuse; Bromage V. Prosser1; Clark V, Malyneux2.

It is the doing of a wrongful act to another without legal excuse or justification willfully

or purposely.

Malice indicates varying shades of wickedness and includes cool depravity and hardness

of heart, vindictiveness, perpetration of injurious acts without lawful excuse, cruelty,

recklessness of consequences and regardless of one’s obligation. It is a disposition which

impels injury to another without cause, from a spirit of revenge, or from personal

gratification. It may be implied from a deliberate intention to do a wrong without

justification. It is not necessarily hate or ill-will, but it is a state of mind which is

reckless to law and of the legal rights of others. All acts done with an evil disposition or

unlawful motive with an intention to cause injury and without a lawful excuse may be

characterized by malicious. Malicious act is not one which is done accidentally,

thoughtlessly or negligently but diligently willfully or wantonly.

TRANSFERRED MALICE

Though there is a principle of criminal law that no act is intended unless all the three

aspects of the act, namely.. •

1) Physical doing,

2) Circumstances, and

3) Consequences

Are present, there is an exception to this rule. This exception is covered under what is

known as the doctrine of transferred malice. It is also sometimes called as

“transmigration of malice ”. The doctrine is explained by an illustration.

1 (1825)4 B&C247, 2552 (1877) 3 QBD 237, 247

900

If a person intends to cause the death of A and in his attempt to cause the death of A, he

kills B, he would be guilty of having committed the murder of B though he never

intended to kill B. In this case, the general intention to kill is transferred to the killing of

B. The doctrine of transferred malice is reflected in section 301 IPC which reads as

under:

"If a person by doing anything which he intends or knows to be likely to cause death of

any person, whose death he neither intended nor knows himself to be likely to cause, the

death caused by him shall make him liable as if he had caused the death of the person

whose death he neither intended nor knew likely to be caused”,

DIFFERENT STAGES IN THE COMMISSION OF CRIME

There are four stages in the commission of every offence. They are..

1) Intention to commit "intention & motive ”

2) Preparation;

3) Criminal attempt; and

4) Commission of the offence

H Intention & Motive

Mere intention or will to commit does not constitute an offence if it is not

followed by an external act. Every act of an individual can be analyzed in two

stages, namely,

i) The ultimate purpose of it and

ii) The immediate intention of doing it.

The former is called the motive"which is different from intention of committing

an offence.

For example, if a person steals a few loaves of bread from someone’s kitchen for

feeding his starving children, his motive or purpose is good nevertheless the

intention of stealing constitutes the offence of thought which is punishable under

901

the criminal law. Thus, the ultimate object or purpose which includes a person to

do an act is called the motive.

In other words, motive moves of a person for a certain course of conduct. The

court while deciding the guilt of the accused takes into consideration, his

immediate intention and the motive behind it. If the immediate intent preceding

the act is unlawful, the person is held liable even though the ultimate purpose may

have been laudable and good. The dacoits who commit dacoity in a rich man’s

house and distribute the body among the poors to save the latter from poverty and

misery, shall be punishable because their immediate intention is to commit the

offence of dacoity though it may be for a charitable purpose.

An intention is the design with which an act is done to bring about the desired

consequences. The unintentional act is one in which such a design is wanting.

Thus, if a man trespasses into another’s land believing it to be his own, he intends

to enter upon the land which in fact belongs to another, but he does not intend to

another, but he does not intend to enter upon that another’s land. Here the act is

partly intentional and partly unintentional. Again, if a woman marries again

during the lifetime of her husband believing him to be dead, she does not commit

bigamy for though she intends to marry again while her husband is in fact alive, she does not intends to marry again during her husband’s lifetime1.

The distinction between intention and motive an be well illustrated by reference to English decision in R.V.SHARPE2. In this case the accused dug out the corpse of

his dead mother from her grave with the object of burying her near his father’s

grave which was at a short distance from her grave. Though his motive was

noble, he was nevertheless held criminal liable.

1 R V.TALSON (1889) 15 Cox 6292 (1881) 7 Cox 214

902

From the above analysis it can be inferred that motive is generally not taken into

consideration while deciding the guilt or innocence of the accused. It is the

interior alone which is relevant and not the "motive" to determine criminal

liability. A lawful act done with howsoever bad a motive will not make the act

unlawful. Conversely, an illegal act with howsoever high a motive shall not make

an act lawful. However, there are certain exceptions to this general principle

when motive may be relevant in criminal cases. These exceptions are

WHERE MOTIVE ITSELF IS AN INGREDIENT OF THE OFFENCE

There are certain offences in which malice itself is an ingredient of the offence.

For instance, the wrongs of defamation, malicious prosecution, criminal

conspiracy, deceit, fraud, forgery, etc. cannot be committed unless fraught with

malice. Motive is, therefore, relevant in these cases. Thus, in case of criminal

trespass if the motive is not proved, the offence shall be reduced to one of a

simple civil wrong which is redressible by money compensation.

JUS NECESSITATIS

It is generally said that an act which is intentionally done might not be wrongful if

it done under compulsion of dire necessity. The proverb “necessity knows no law' ” fully justifies this contention. Thus pulling down a house on fire to prevent

its spread to other property or throwing overboard to lighten a ship caught in a storm are common illustrations of Jus Necessitates1 2. It has, however, been held

that no amount of necessity would justify taking away the life of another.

The case of Dudkey V. Stephens3 is a leading decision on the limitations of the

doctrine of necessity. In this cast, it was held that a man, who in order to save his

life from starvation, kills another for the purpose of feeding of his flesh, is guilty

of murder, although at that time he was in such circumstances that there was no

other chance of preserving his life. The facts of the case were that three ship

1 Necessitatis non habet legum2 WINFIELD : Law of Torts (6lh Ed.) P.633 (1884) 14 QBD 173

903

wrecked sailors in a both were without food for seven days and two of hem killed

the third, a boy and fed on is flesh under such circuriistances that there appeared

to the accused sailors every probability that unless they feel upon the boy or one

of themselves, would die of starvation. Lord COLLERIDGE delivering the

judgment observed, “in this case the weakest, the youngest, the most unresisting

was chosen, was it more necessaiy to kill him than one of the grownup men?

Obviously no

GLANVILE WILLIAMS1 refers to a similar American case2 wherein the accused

HOLMES was a member of a crew who had under the order of the mate, thrown

out sixteen male passengers to save the ship from wrecking. He was charged with

manslaughter and sentenced to six months imprisonment.

The law relating to necessity as a defence under criminal law is contained in

section 81 of the Indian penal code. It says that where an act causes apprehension

of death self- preservation or saving the life of another will certainly be

irresistible and the action would be justified provided it does not result into taking

away of any human life. However, if a surgeon kills a child in foetus to effect

safe delivery and save the mother’s life, his action shall be fully justified under

jus necessitates.

MOTIVE AS A FACTOR IN FIXING THE MEASURE OF LIABILITY

Though motive is irrelevant in deciding the guilt of the accused, the courts do take

motive into consideration in determining the measure of criminal liability, i.e. the

sentence of the accused.

For instance, if a theft is committed for saving the members of the family from

starvation and death, the sentence would be relatively lesser than that of the

sentence awarded for removing the gold-chain from a child’s person. Thus,

1 GLANVILE WILLIAMS : Criminal Law P.3822 US V HOLMES (1842) 26 FC 360

904

besides the gravity of the offence, the motive behind the commission of offence is

also taken into consideration by the courts while awarding sentence to him.

INTENTION AND KNOWLEDGE DISTINGUISHED

Where a consequence is expected, it is usually intended but this is not always true.

For example, an operation surgeon may know very well that there is a probability

of the patent’s death if the latter is operated, yet he does not intend it to be caused

though he expects that it is likely to occur. He in fact intends the recovery of the

patient. The illustration makes the difference between intent and knowledge

clear. To make yet another example, a military commander orders his troops into

action, knowing fully well that many of them will lose their lives, but he certainly

does not intend the deaths to be caused instead he intends to defend his country.

In other words, he has knowledge that loss of lives is probable but he certainly

does not intend the lives to be lost.

H Preparation

Preparation consists of devising means for the commission of an offence. The

Indian penal code does not provide any punishment for acts done in the mere

stage of preparation. There are, however, two exceptions when more preparation

is also an offence punishable under the criminal law. Section 122 of IP provides

preparation of wage war against the state is an offence. The second exception is

preparation to commit dacoity which is an offence punishable under section-399

IPC. Mere preparation is not punishable under the penal code because a person

may give up the idea of committing the offence before he reaches a stage beyond

preparation. Thus, a person who plans to commit a murder of some one buys a

pistol and travels to the place of the proposed victim’s place, has committed no

offense since he has not gone beyond the stage of preparation.

3[ Criminal A ttempt

An attempt to commit a crime is itself an offence under Section-511 of the Indian

penal code. A criminal attempt means making a headway towards the

905

commission of a crime after the preparation is made “an attempt can only be

manifested by acts which would end the consummation of an offence but for the

intervention of circumstance'; independent of the will of the party".

An attempt is punishable even though the intended offence is not completed.

For instance, if a person intending to pick another’s pocket thrusts his hand into the pocket but finds it empty, he shall nevertheless be guilty, of attempt1 2 to

commit an offence under section-511 of IPC

It is significant to note that out of the four distinct stages in commission of an

offence the first two, namely;

i) Intention, and

ii) Preparation....

Are commonly innocent. Thus, A may buy some petrol and match-box with

intend to set B’s house on fire. He has committed no offence upto the stage. The

reason being that he may anytime give up the wrong idea before attempting the

commission of the offence. But if A is found at the door of B’s house trying to

throw petrol and lighting the rags soaked in petrol, his intention has clearly

transgressed the preparation stage and reached a criminal attempt, therefore he

shall be criminally liable for his act.

Pointing out the distinction between preparation and attempt, Lord•yBLACKBURN m Reg. V. Chessman observed, “there is no doubt is difference

between a preparation antecedent to an attempt and the actual attempt, but if the

actual transaction has commented which would have ended in the crime if not

interrupted, there is clearly an attempt to commit the crime

1 R.V RING (1891) 17 Cox 4912 IL&C 140

906

SALMOND also contends that no man can be safely punished for the guilty

purposes, unless they have manifested themselves into overt acts which themselves proclaim his guilt*.

A few more illustrations would make the distinction between preparation and

attempt further clear:

A with the intention of causing the death of a child of tender age, exposes it in a

deserted place. A has committed the offence of attempting to murder though

death of the child does not ensure.

Again A ,intending to murder Z by poison purchases poison and mixes the same

with food which remains in A’s keeping. A has so far not committed the offence

of attempt under section 511 IPC. Now, if A places the food on Z’s table or

delivers it to Z’s servant to place it on Z’s table. A has committed the offence of

attempting to murder.

Commission of Crime

This is the last and final stage in the commission of a crime and it is punishable

under the criminal law of the land.

NEGLIGENCE

Jurists have defined “negligence” in different ways. SALMOND observed that

negligence is capable carelessness. To quote him: "negligence is the state of mind of

undue indifference towards one's conduct and its consequences". It is carelessness in the

matter in which carefulness is obligatory under the law. Carelessness excludes wrongful

intention.

POLOCK observes that negligence is the opposite of the diligence and since no one

refers to the diligence as a state of mind, he considers that negligence is also not a state of

1 Logitations, paenam nemo patitur

907

mind. But it is submitted that the opposite of diligence is idleness while negligence is

more appropriately the opposite of intention and since intention is admittedly a state of

mind, negligence is also as such.

Negligence - Intentional act is one that was foreseen and desired by the doer.

Forbearance is an intentional negative act. An unintentional negative act is referred to as

an omission. An omission is the non-doing a given act without adverting to the act not

done. -

AUSTIN said, “an omission is not the consequence of an act oj the will but of that state

of the mind which is styled negligence and implies the absence of will and intention

According to HOLLAND, negligence includes all those shades of inadvertence which

result in injury to others but there is total absence of consciousness on the part of the

doer.

WILLES J. holds that "negligence is the absence of such case as it was the duty of the defendant to use ”!.

According to SALMOND negligence is “the state of mind of undue indifference towards

one’s conduct and its consequences”.

Negligence can consist either "in faciendo" or “in non faciendo", being either non­

performance or inadequate performance of a legal duty.

According to CLARKE, “Negligence is the omission to take such care as under the

circumstances it is the legal duty of a person to take. It is in no sense a positive idea and

has nothing to do with a state of mind”.

WILLES J. in Grill V. General Iron Screw Colliery Co., (1866) LR 1 CP 612

908

The term “negligence” has been defined by BARON ALDESON as the “omission” to do

something which a responsible man, guided upon those considerations which ordinary

regulate the conduct of a human affairs, would do, or doing something which a prudent and reasonable man would not do1. Thus, negligence may exist in non-feasance or

misfeasance.

According to WINFIELD, “negligence defined as the breach of a legal duty to take care which results in damage2 is in contrast to that wrongful intent"

According to another writer, “negligence is the absence of care according to

circumstances”. It has been held in a case that “negligence is the case omitting to do

something that a reasonable man would do or the doing something which a reasonable

man would not do

Negligence essentially consists in the mental attitude of undue indifference with respect

to one’s conduct and its consequences.

Negligence is nothing short of extreme carelessness. Carelessness excludes wrongful

intention. A thing which is intended cannot be attributed as carelessness. Carelessness or

negligence does not necessarily consist in thoughtlessness or inadvertence. It is true that

it is the commonest form of negligence but it is not the only form. There can be a form

of negligence in which there is no thoughtlessness or inadvertence.

The essential of negligence is not inadvertence but indifference. A careless person is a

person who does not care. To quote SALMOND, “this term has two uses; for,

i) it signifies sometimes a partidular state of mind, and

ii) at other times conduct resulting therefrom

1 BARON BALDERSON in Blyth V. Birmingham Water Works o, (1856) 11 Ex 7892 WINFIELD, Law of Torts, 5"' Ed.n. P.405

909

The former is the subjective and latter objective sense. In the former sense, negligence is

opposed to wrongful intention, in the latter, it is opposed not to wrongful intention but to

intentional wrong-doing.

Negligence as a tort is the breach of a legal duty to make care which results in damage,

undesired by the defendant, to the plaintiff. Thus its ingredients are:

a) A the legal duty on the part of A towards B to exercise in such as conduct of A

falls within the scope of the duty.

b) Breach of that duty

c) Consequential damages to B

The duty must be one recognized by the law, a merely moral or religious duty will not

suffice. Duty means a restriction of the defendant’s freedom of conduct, and the

particular restriction here is that of behaving as a reasonable careful man would behave in

the like circumstances. c

Negligence and wrongful intent are two contrasted and mutually inconsistent mental

attitudes of a person towards his act and its consequences. A person who causes a

consequence intentionally cannot be said to have caused it negligently also, and vice

versa. Though at times, it may be difficult to make a distinction between them, they are

two separate and distinct attitudes of mind.

Negligence is of two kinds:

a) Advertent negligence, and

b) Inadvertent negligence

dl Advertent negligence

It is called willful negligence or recklessness also. In this negligence the harm

done is foreseen as possible or probable, but it is not willed. For example, a

person who drives furiously in a crowded street and causes injury or harm to

910

persons commits it by adverent negligence. For legal purposes such negligence is

classed with intention.

il Inadvertent Negligence or Simple Negligence

The negligence which is a result of ignorance, thoughlessness or forgetfulness is

inadvertent negligence. In such negligence the harm caused is neither foreseen

nor willful. For example, a doctor who treats a patient in property though

negligence, as forgetfulness is guilty of inadvertent negligence.

NO DUTY NO NEGLIGENCE, CRIMINAL AND CIVIL LAW

As the "negligence "is the omission to take such as under the circumstances it is the legal duty of a person to take1. Where there is no such duty there can be no negligence. In

different legal systems different duties have been imposed upon individuals.

In the criminal law negligence is a condition of liability only in exceptional cases.

Generally, crimes are willful or intentional wrongs, therefore, the question of negligence

rarely arises. However, there are cases where negligence is a condition of criminal

liability.

For example negligent homicide is a criminal offence. In civil wrongs now distinction is

drawn between the forms of "means rea” that is, the intention and negligence, and with

very few exceptions when an act would be a civil wrong if done intentionally, it a person

is civilly responsible for doing harm willfully, but is not bound to take any care not to do

it.

"he must not for example, deceive afiother by any willful or reckless falsehood, but

unless there is some special ground of obligation in the case he is not answerable for

false statements which he honestly believes to be true, however negligent he may be in

making them

1 Gill V. General Iron Screw Corrilery Co. (1868) LR 1 CP P.612

911

STANDARD OF CARE

As observed earlier, negligence is not taking care, where there is a duty to take care.

Now the question arises as to what is the standard of the care that a person is required to

take. The carelessness, unlike the intention, is of various degrees. The degree of

negligence is determined on the basis of the magnitude and probability of the wrong.

The greater the evil is, and there is more probability of its taking place, the greater is the

carelessness on the part of the person who creates the danger. However, there are certain

practices or acts to which people are accustomed and they are continued in public

interest. If one does in the general way in which it is being done, he is not considered as

negligent. For example, by driving trains at fast speed, sometimes a t a rate of 60 miles

an hour, a number of fatal accidents have been caused which could have been avoided by

reducing the speed rate, but it can be reduced at the cost of public convenience, therefore

in being negligent the railways are not guilty of negligence.

CARE OF A “REASONABLE” MAN

The standard of care which the law desires from a person is the care of a “reasonable

man ” or of "an ordinary prudent man ”. It was said that negligence is the omitting to do

something that a "reasonable man" would do, or the doing something which a reasonable man would not do1.

HOLMES is also of the same view. He says that “when the question of defendant’s

negligence is left to jury, negligence does not mean the actual state of the defendant’s

mind, but a failure to act as a prudent man of average intelligence would have done He is required to conform to an objective standard at his peril "2.

“Reasonableness ” does not mean uniform standard in every case, but it varies according

to the nature of the act.

1 BLYTH POLLOCK V. Birmingham Water Works Co. (1856), 25 LJ Ex.213“ The common law

912

For example, the standard of a care for a physician is what a reasonable physician would

do, and if he does not take care of the standard, he is guilty for negligence.

In the same way, the standard of the care required from a motor car drive is what a

reasonable motor car drive would do. If a person practices a particular profession

without having the competence and skill of that profession and thus causes harm, he is

guilty of negligence. A person who practices a profession must have the average skill

and efficiency of that profession. Thus, the standard of a care is the care that is expected

from a reasonable or prudent man, and a person who does not kept this degree of the care

is guilty of negligence in the eye of law. As the standard of care is one, the degree of

negligence is also one. Sometimes, negligence is said to be of various degrees and a

distinction is made between the various degrees. It is submitted that such a distinction is

only theoretical, and at the same time it is confusing.

THEORIES OF NEGLIGENCE

There are two theories of negligence. One theory was propounded by SALMOND. One

theory was propounded by SALMOND. According to this theory, negligence is a state of

mind - mental attitude. This theory is called the subjective theory of negligence.

The other theory has been given by Sir FREDERICK POLLOCK. According to him

negligence is a type of conduct. This is called the objective theory of negligence. These

theories shall be discussed separately.

U Subjective Theory of negligence

The exponents of the subjective theory maintain that negligence is a state of

mind. According to them, negligence consists in the mental attitude of undue

indifference with respect to one’s conduct and its consequence.

The subjective theory is given by SALMOND. His view is that negligence is

culpable carelessness. Although negligence is not the same as thoughtlessness or

inadvertence, it is nevertheless essentially an attitude of indifference. Therefore,

913

according to this view, negligence essentially “consists in the mental attitude of undue indifference with respect to one’s conduct and its consequences ”l.

A person is made liable on the ground of negligence because he does not

sufficiently desire to avoid a particular consequence- a harm. He is careless about

the consequence and does the act notwithstanding the risk that may ensure.

WINFIELD is also the supporter of this theory. He says that “as a mental

element is tortuous liability, negligence usually signifies total or partial inadvertence of the defendant to his conduct and for its consequence ”2.

According to AUSTIN, “want of advertence which one’s duty would naturally

suggest, is the fundamental idea in the conception of negligence In this opinion,

a negligent wrongdoer is one who does not know that his act is wrongful but

would have known it had it not been because of his indolence and inadvertence.

Thoughtless is thus the essence of negligence for AUSTIN.

AUSTIN goes a step further elaborating his subjective theory and distinguishes

negligence from heedlessness, rashness and recklessness. For him, negligence is

the state of mind of the person who inadvertently omits an act and breaks a

positive duty. In heedlessness he does not think of probable mischief and does not bother to avert the possible consequences3.

In rashness, he does foresee the consequences but foolishly thinks that they

“would not follow” as a result of his act./

Recklessness, on the other hand is a condition of mind where the doer foresees the

consequences but does not care whether they result from his act or not. Thus, the

line of distinction between rashness and recklessness is very thin. In the former,

1 SALMOND : Jurisprudence2 Law of Torts1 AUSTIN : Jurisprudence, P.427

914

there is erroneous thinking that consequences would not follow while in the latter

the person does not bother about the consequences at all.

Sir JOHN SALMOND objects to the above sub-classification of negligence made

by AUSTIN and treats all these categories under the common law, namely,

“negligence The reason being that in all of them there is failure of exhibit the

standard of care required of a reasonable man. In his opinion, AUSTIN’S view is

fallacious because negligence may also be deliberate or willful. He, therefore,

concludes that “the essence of negligence is not inadvertence but carelessness

which may or may not result in inaverfence ".

21 Objective Theory of Negligence

According to this theory negligence is not a condition of mind but a particular

kind of conduct which is to be judged objectively. This theory is supported by

FREDREIC POLLOCK. It is the breach of duty to take care which a reasonable

person under those circumstances would take. The tort of negligence is based on

objective approach to the conduct and its consequences.

According to Sir FREDERICK POLLOCK, “negligence is the contrary of diligence and no one describes it as the state of mind"1. This theory postulates

that negligence is an objective fact. It is not an attitude of mind or a form of

“mens rea ’’ at all, but to particular standard of conduct. It is a breach of duty of

not taking care and to take care means to take precautions against the harmful

results of one’s action and refrain from unreasonably dangerous kinds of act.

For example to drive at night without lights is negligence because having lights is

the conduct of precaution adopted by all prudent men. He who drives without

lights in the night has failed in that conduct. So to determine whether a man is

negligent or not, one need not to go into the state of min but to the standard of his

conduct Negligence thus is a type of conduct and not a state of mind. The view

1 POLLOCK : Law of Torts, (12,h Ed.)

915

appears to be correct chiefly in the law of tort where negligence is nothing more

than a failure to achieve the objective standard of a prudent man, and where a

person has failed to achieve that standard of a prudent man, any defence on the

ground of mental state that he took the utmost care shall be of no use at all to him.

Similar is the position in criminal law as well.

Dr. WINFIELD defined negligence as a tort is "the breach of a legal duty to take

care which results in damage, undesired by the defendant to the plaintiff ’. Thus,

the three essential ingredients of negligence as a tort are

i) Existence of a legal duty

ii) Breach of it and

iii) Consequential damages

All these are to be judged objectively on the basis as to how a reasonable man would have acted in those circumstances1.

SALMOND criticizes objective theory of negligence on the ground that it loses

sight of the essential distinction between intention and negligence. For him,

negligence is purely mental and nothing more than carelessness.

Professor GLANVILLE WILLIAM, the editor of SALMOND’s jurisprudence has

tried to reconcile the above two conflicting theories of negligence stating that they

are two aspects of the same problem. In his view, negligence is subjective when a

particular consequence is to be distinguished from the intended consequence. In

this sense, the pertinent question is whether the wrongdoer intended the

consequences or he was just indifferent to them.

On the other hand, when it is to be ascertained whether the consequence is

accidental or negligent, the objective theory would be appropriately applicable.

WINFELD • Law of Torts (6lh Ed.) P.478

916

In tills sense, the irrelevant question would be whether the defendant exhibited the

standard of care expected of a reasonable man under those circumstances.

The approach of Dr.GLANVILLE WILLIAM appears to be correct and more

practicable.

It is for this reason that negligence has been used in two senses in law of torts. It

is used in the sense of ‘‘state of mind” as one of the general principles of

determining tortuous liability while “negligence” as a tort is based on the

objective theory.

Dr.M.J.SETHNA who attempted to developed a mind-behaviour theory has also

stated that negligence is a faulty behaviour arising out of faulty thinking. It is

both subjective and objective. It is objective because it is something in the nature

of external behaviour and subjective because it arises from mental lethargy. For

he is not in favour of maintaining compartmentalist theories of negligence that is,

subjective and objective, etc. The theory which Dr.SETHNA develops is the

mind-behaviour theory of negligence - the theory of subjective-objective synthesis1.

The foregoing survey would, however, reveal that the traditional division of

liability into civil and criminal, and remedial and penal, and to state that all

criminal liability is only remedial is not accurate in the present circumstance

because such liabilities are more often penal and more often remedial and such a

division has grown more complex in the modem day jurisprudence.jt

KINDS OF NEGLIGENCE

Negligence is of two kinds.

1) Advertent negligence

2) Inadvertent negligence

1 Dr. M.J.SETHNA, Synthetic Jurisprudence, P.19-21

917

“Advertent negligence” is generally called as willful negligence. In this kinds of

negligence, the harm done is foreseen as probable but it is not intended or willed.

In “inadvertent negligence ” the harm is neither foreseen nor willed.

However, in both these cases, carelessness or indifference as to consequences is present.

The distinction between advertent and inadvertent negligence can be understood by an

illustration.

An operating surgeon may be folly aware of the serious risk involved in carrying out the

surgical operation of the patient but if he still performs the operation as a result of which

the condition of his patient deteriorates, it would be a case of advertent negligence. If

the surgeon wrongly operates the patient due to ignorance or a mistake, his negligence

would be inadvertent.

DEGREES OF NEGLIGENCE

Roman law recognizes different degrees of negligence depending on foe nature of

conduct in question. The law expects three degrees of care corresponding to the

following three degrees of negligence .

H Culpa lata

It means failure to show any reasonable care at all. It lias been called as gross

negligence which no man of prudence would commit.

21 Culpa Levis inAbstracto

It means failure to take that care as a reasonable head of the family “pater

families ” would have taken when a contract was being concluded for foe benefit

of his family.

918

31 Culpa Levis in Concreto

It implies failure by a person to take that care which he in ordinary course would

have shown in dealing with his own affairs. In simple words it means failure to

exercise ordinary diligence as against extra-ordinary diligence.

In short, in Roman law negligence could be “gross" or it could be “slight".

The English law, however, does not accept this distinction and holds that there

cannot be any degrees of negligence.

Indian law also takes a similar stand and does not recognize different degrees of

negligence. In civil law there is only one single standard of care that a reasonable

and prudent man would take under the circumstances in question. In criminal

law, however, degrees of negligence seem to have been recognized to determine

the sentence.

It must further be pointed out the expression good faith1 used in the Indian penal

code has a reference to degree of care and attention. It simply means an act done

with due care and attention and not an act done with good intention.

LEGAL WRONGS

The infringement of a legal right is known as legal wrong. It is a breach of duty

recognized by the law. Thus, if a person enters into a contract, he undertakes a duty to

perform it, and if he violates this duty, he commits a wrong known as breach of contract.

But there are other wrongs which are independent of contract. The state imposes certain

duties upon the subjects irrespective of their consent and breaches of such duties are

called “legal wrongs"

Legal wrongs are of two kinds, namely

1 Section 52 - I PC

919

i) Crimes, and

ii) Civil wrongs

Which are known as “torts

The distinction between crime and tort is based on the degree of gravity involved in the

consequences of wrongful act. In both, however the duty broken is fixed by the state

itself.

The state regards certain duties so important that their breach may lead to serious

consequences, and therefore, places them in the category of crime for which the offender

is punished under the law of the state. If the mischief called due to breach of duty is not

so serious as to require intervention of the state, then it leaves it to the individual to

vindicate his rights and recover compensation from the wrongdoer. The wrongs .of this

nature are called “torts " or civil wrongs.

CRIME AND TORTS DISTINGUISHED

It is difficult to draw a clear-cut distinction between a crime and a tort. A tort today, may

be a crime tomorrow and “vice-versa However, it is desirable to draw the distinction

between the two terms.

BLACKSTONE observes that civil injuries are private wrongs which concern

individuals, while crimes are public wrongs which concern the state and affect the

community as a whole. The former are redressible by adequate compensation or

damages while the latter are punishment with fine, imprisonment or even death sentence according to the magnitude of the offence1.

In case of crime, the prosecution is launched by the state and thus law is set in motion of

its own accord. In case of a civil wrong, however, the person wronged brings civil

proceeding against the defendant and recover compensation for the wrong.

1 BLACKSTONE : Commentaries, Book IV P.640

920

AUSTIN does not accept the BLACKSTONIAN distinction between crime and torts.

AUSTIN says all public wrongs are not crimes. For instance, it is a public duty to pay

tax hence refusal to pay tax being a public wrong, should have been a crime but it is not

so. it is infact a civil wrong. Again, theft of a watch is a crime but it cannot be said that

public is affected thereby. That apart, there are some wrongs which are both crime and

torts, e.g. defamation, assult, conspiracy, malicious prosecution, nuisance, etc.

KENNY also criticized that BLACKSTONIAN distinction between crime and torts. In

his opinion the division of wrong into crime and civil wrong on the basis of the difference

in their effect is not satisfactory. He further points out that the negligent mismanagement

of a company may prove far more harmful to the community than the stealing of a

handkerchief and yet the former is not regarded as a crime while the latter is certainly a

crime.

Acceding to SALMOND, "the distinction between criminal and civil wrongs is not based

on the difference in the nature of the right infringed but on a difference in the nature of

the remedy". The real distinction between the two is that the object of a criminal

prosecution is to punish the offender while the object of civil action, i.e. torts, is payment

of compensation to the plaintiff.

Dr.ALLEN thinks that out of the two views expressed by BLACKSTONE and

SALMOND, the former appears to be more near to the truth. He says crime is a “crime ”

not because it is a punishable wrong, but because if a wrongdoing of such a serious nature that it threatens the wellbeing of the society as a whole1.

WRONG OF STRICT LIABILITY '

Generally a man is held liable for the negligence which results into harm of violation of

rights of others. But there are certain exceptions to this general principle of liability.

Such cases are those cases where a person is held liable for his act even though he did not

do it intentionally or negligently.

1 ALLEN C.K.: Legal rights and duties, P.233

921

In other words, he is held liable irrespective of negligence or carefulness. These cases

are covered under “strict liability’’ which is known as absolute liability.

In cases covered under strict liability, the wrong arises from the breach of an absolute

duty.

An “absolute duty" may be defined as a “duty which renders a man liable without any

fault of his and irrespective of any consideration of intention or negligence on his part”.

The word ‘strict’’ or “absolute” denotes that it is not necessary for the injured party to

prove any intention or negligence on the part of the. wrong-doer and no amount of care or

caution proved by the latter would absolve him from liability. The principle of absolute

liability has been enunciated in the court of Exchequer chamber by BALCKBUM, J. and affirmed by the house of lords in Rylands V. Fletcher1 thus:-

BLACKBURN, J. moulded the different scattered legal rules or remedies into a brand

and comprehensive principle which combines restatement, remoulding and making of

new law. He collected several cases of liability without fault which in Dean

WIGMORE’s words "wandered about unhoused and unshepherded etc. in the pathless

field of jurisprudence

The doctrine of strict liability is applicable in cases involving wild animals, dangerous

premises or substances, electricity, water fir explosive etc. which are capable of escape.

The object of absolute liability is not to prevent persons from undertaking hazardous and

adventurous activities. The law only expect a person to do such acts at his own peril, and

keep himself ready to compensate the person wronged if any injury is caused to him by

the wrongful act.

SALMOND has grouped cases of strict liability under the following three heads:-

a) Mistake of law,

1 (1868)3 HL 330

Mistake of facts, and

Inevitable accident

Mistake of Law

An act done under the mistake of awl is not said to be an intention act because he

doer of it does not know that what he is doing prohibited by law.

If a person has committed a wrong under mistake of law, the law will not hear

him say that he had no guilty mind and that but for his ignorance of law, he would

have not done it.

Ignorance of law is no excuse in almost al the legal systems. This is expressed in

the maxim, “ignorantia juris meminem excusat 'ignorance of law is no excuse’”.

Therefore, it is obvious that in such cases the principle of absolute or strict

liability applied because of the presumption that every one must know the law

relating to his act or conduct. This principle however does not apply in case of

ignorance of a foreign law.

This irrebuttable presumption, or in other words, the strict liability is on the

following grounds:-

1) First, that law is definite and knowabie and it is the duty of every person to

know the law concerning his rights and duties.

2) Second, law in most of the cases is based on common sense, or in other

words, it is based on the principle of natural right and wrong which/

generally every person kftows. A person might not be acquainted with tire

Indian penal code, but he knows that to kill a man intentionally, or to seal

is a wrong.

3) Third, there shall be evidential difficulties in accepting the defence of the

ignorance of the law. In most of the cases the wrongdoers, in the first

instance, will take this defence and the court will have to enquire as to

923

whether the wrongdoer knew the law or not before going into the merits of

the case. This will create great difficulties before the courts and it will

hamper the course of the administration of justice.

ARGUMENTS IN SUPPORT OF THE ROLE NOT CONVINCING

It is submitted that the grounds given in support of strict liability are not very

convincing in modern times.

In a country like ours, where every citizen is governed by the law made by the

two legislatures and the rules made by the local bodies which undergo frequent

amendments also, to say that every person knows the law is nothing but a fiction.

The second argument that law is based on common sense also does not hold much

water. In modem times, the law has grown very complex and in many cases it has

nothing to do with the common sense. Some general rules and principles of the

law are undoubtedly based on common sense, but now most of them are based on

the expediency or other things.

Thus, the strict liability that every one knows the law is very hard and severe.

However, there are certain exceptions to this general rule.

For example, one is not presumed to know a by-law until it has been duly

punished.

§1 Mistake of Fact

It is generally said that mistake Of fact is a good defence in law of crimes.

But in English and Indian law mistake of fact is not a defence in law of torts, i.e.

civil wrongs. He who interferes with the right of another shall not be allowed to

say that he believed in good faith and on reasonable grounds in the existence ofc

some circumstances which justified his act.

924

The principle about it is that “ignorantia facit excusat” 'ignorance of the fact is

excuse ’ ”. It means that a person is not liable for wrongful at if he has done it

under a mistake of fact.

In other words mistake is a valid defence against a wrongful act. But this

principle applied only in case of a criminal wrong and not a civil wrong. In civil

wrongs, except in few cases the mistake of fact is not a valid ground for

discharging a person from liability. But in criminal law the strict liability for a mistake of fact is only in exceptional cases1.

An example of such exception, or strict liability is that if a person kidnaps a girl

below 16, he is always liable, although he honestly believed that she was above

16.

In R.V.Prince2 a person who abducted a girl under the legal age of consent was

held criminally liable and the plea of inevitable mistake as to her age failed as a

defence. This is so because the act of taking the girl away was itself wrongful.

However, if the intention of lawful, mistake of fact is a valid defence in criminal

law.

For instance, if A intending to kill b kills C mistaking him to be B. A has no

defence, but if A who is out-hunting in a forest shoots at a bush thinking that a

tiger was lurking inside and the bullet hits and kills B, he will be exempted from

criminality due to mistake of fact. This mistake, in order of quality for exemption

from criminal liability should fullfil two conditions, namely

i) It should be reasonable, and

ii) It should be mistake of fact and not of law.

1 To know how for a mistake of fact is a ground of defence in India, see Indian penal code, 1860, section-76 and 792 (1875) 2 CCR 154

925

A few more illustrative cases may be cited to explain the absolute liability

involved in acts under mistake of fact. If a person trespasses upon another man’s

land, it is no defence for him to say that he believed in good faith and on reasonable grounds to be his own1. Likewise, if a person meddles with another

person’s goods in absolute innocence and under an inevitable mistake of fact, he shall nonetheless be liable for al the loss incurred by the true owner2.

Q_ INE VITA BLE A CC1DENT

Inevitable accident is commonly recognized as a ground of exemption from

liability both in civil and criminal law.

Accident may either be culpable or inevitable. It' is culpable when caused due to

negligence but inevitable when the avoidance of it would have required a degree

of care exceeding the standard demanded by law.

In other words, an inevitable accident is that which could not possible by

prevented by the exercise of ordinary care, caution and skill. That is, it must be a

“physically unavoidable ” nature.

A person is not liable for an act taking place accidentally. Accident differs from

a mistake of fact. Every unintentional act is done by mistake when the

consequences of the act are intentional; the mistake is only about the

circumstances it is unintentional.

For example,, if I arrest A taking him to be B, it is a mistake of fact. In this case,

the consequence , that is arrest is intentional but there is a mistake about the

circumstances and I was to arrest B and A. So the arrest of A is unintentional.

An act is said to be done accidentally when it is unintentional in respect of its

consequences also.

1 BASSLEY V. CLARKSON (1682) 2 Liv. 372 HOLLINS V. FOWLER, (1874) HL. 757

926

For example, I am cutting wood with an axe and the axe slips away from hand

and falls upon the head of man and causes his death, it is accident because the

consequence was never desired. Accident is culpable or inevitable. It is

considered to be culpable in those cases where it could not have taken place at all

had the doer of it observed the proper care.

For example, if one dries a car above the fixed speed limit in a crowded place, and

harm or injury is caused to any person, the person so driving is liable, although it

is unintentional. The accident is called inevitable when it could not have been

avoided by the wrongdoer and it takes place without any fault on his part.

“culpable accident is no defense, save in those exceptional cases in which

wrongful intent is the exclusive and necessary ground of the liability”.

Inevitable accident is commonly a good defence in the criminal law1. It

exonerates the wrongdoer from the liability.

In civil law, inevitable accident is not always a ground of exemption from the

liability.

The case of Stanley V. Powel2 is a leading decision on inevitable accident as a

defence. In this case the defendant while firing at a pheasant accidentally and

without negligence shot the plaintiff with a pellet from his gun, it was held that he

had a good defence.

In a subsequent case of Ryan"V. Youngs3 the sudden death of the driver of a

motor vehicle due to heart-failure as a result of which an accident was caused,

was held to be a mere inevitable accident and defendants were held not liable.

1 See, Indian penal code, 1860, section 802 (1891) I QB 863 (1938) All ER 522

927

t

The rule in .. .Rylands V. Fletcher and in some other cases of that nature is that if

a person accumulates or keeps a thing which may cause danger if it escapes, he

does it at his own peril and he is strictly liable for any harm or damage that the

thing cause, although it is caused accidentally.

VICARIOUS LIABILITY

VICARIOUS LIABILITY ON THE GROUND OF RELATIONSHIP

The general principle of law is that person is liable for his own-acts and not for the acts

of others. But in certain kinds of cases a person is made liable for the act of another on

account of the standing in a particular relationship with that person. This liability is

called vicarious liability. This kind of liability existed in ancient times also but the

grounds of liability were entirely different from what it is in modern times.

The principle of vicarious liability in ancient times was that a person must be made

answerable for the acts of the person who are akin to him. With the onward march of

time this principle of liability underwent a great change, and in modem times, this

liability exists in a limited kind of cases. Now a person is made liable on the grounds of

expediency and policy, and not on any other ground.

Normally, it is tire wrong-doer himself who is held liable for the act. But there may be

certain circumstances when the liability of the wrongdoer is imposed on some other

person than the wrongdoer himself. That is, some other person is made liable for the

wrongful acts of the wrongdoer.

For example, a master is liable for the Wrongful acts of his servant done in the scope of

employment. Likewise a principal is liable for the wrongful acts of his agent done in the

ordinary course of business or a guardian is liable for the wrongful acts of his words.

The doctrine of vicarious liability is based n the principle of "respondent superior".

928

According to SALMOND the rational basis of the rule of vicarious liability, of which the

master-servant liability serves as the best illustration, is mainly evidential.

To quote his own words of SALMOND, “there are such immense difficulties in the way

of proving actual authority, that unless some such conclusive presumption is drawn,

masters would make tools of their servants to commit great wrongs. A word, a gesture or

a tone from the master will be sufficient to induce a servant to commit greatest wrongs,

yet who could prove such a measure of complexity".

- CRIMINAL LAW

In criminal law the general principle is that a person is not liable for the act of another.

A master is not criminally liability for the unauthorized acts of his servant. However,

there are certain exceptions to this rule. The legislature may prohibit an act or enforce a

duty in such terms as to make the prohibitions or the duty absolute; in that case die

principle is liable if the act is in fact done by his servant. Thus a statue may impose

criminal liability upon the master as regards tire acts or the omissions of his servants. A

master or owner is liable in case of public nuisance done by his agent. Similarly, if a

principal neglects the performance of an act, “which is likely to cause danger to other,

and entrusts it to unskillful hands, he will be in certain cases criminally liable .

The principle of vicarious liability has no application in criminal law for it would be

against the public policy to punish a person for the crime committed by someone else.

However, there are three exceptions to this general rule:-

1) In many cases the law imposes upon the owner of a property the obligation of

managing it so that it does not injure any one else or the public in general. In such

cases if a breach of obligation is committed the owner cannot escape criminal liability by delegating the management to someone else1 2.

1 See Indian Penal Code, 1860, Sections—154 and 1552 Section 154 and 155 IPC provide punishment by way of penalty upon the owner of land in certain cases where breach of duty is committed by his agent or manager

929

For example, the proprietor of a newspaper would be liable and punished for a

libel “defamation" published in it though he was living at a distance and know

nothing about the libel until he read the newspaper.

2) In case of public nuisance under section 268 IPC, also a master is held vicariously

liable for he act of public nuisance committed by his servants.

3) Under the licensing acts the professionals holding licenses would be vicariously

punished for the acts of violations committed by their servants. The same rule

shall be applicable in respect of vicarious price controlling laws. A master of a

business firm could be held liable if his servant committed an act in violation of

any provision of the statutory law.

CIVIL LAW

Vicarious liability exists mainly in civil law. It is recognized in civil law generally in two

kinds of cases.

1) A master is liable for all tortuous acts of his servants done in the course of his

employment.

2) The representative of the dead person are, in certain cases, liable for the acts of

the deceased.

IX Master ’s Liability for the Acts of his Servant

Most of the jurists are of the view that the origin of the liability of the master for

the acts of his servant is in the old institution of slavery.

HOLMES tracing the development of the liability says that in the beginning it

was the revenge that was the motive of the punishment. It was vengeance on the

immediate offender. If a slave committed a wrong, the master of the slave had to

surrender him to the person who had suffered the wrong. Even the inanimate

things were surrendered or forfeited if any injury to a person too place on account

of them. Later on, instead of surrendering the slave some compensation was paid

to the person suffering the injury by the master of the slave or the thing. Thus the

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master paid for the blood feud for taking back the salve or the thing. In other

words, the surrender was substituted by compensation. Gradually a practice

developed that the master was also made a party when an- action was brought

against his servant for his wrongful act. It was only as a matter of convenience to

establish the liability of the master and to realize the money from him. Though in

course of time the institution of slavery was abolished and the nature of the

liability also changed, a master continued to remain liable for the wrongful acts of

his servants on the same analogy.

The modern jurists are of the view that the liability of the master in modem times

is not linked with the old principle of liability. The liability of the master for the

acts of his servants in modern times is of recent origin and growth. The liability

of the master for acts of his servants is based on a legal presumption which later

on, became conclusive that the acts done by a servant in and about his master’s

business are under the express or implied authority from the master. Therefore,

these acts are the acts of the master.

It is this presumption which has appeared in the shape of the employer’s liability.

It has been embodied in various statues. The reasons of making the master liable

are mainly two:-

dl /r is Evidential Importance

To prove in every case of this nature that the servant acted under the actual

authority of his master would involve a lot of difficulties and in most cases

the master will escape the liability on the ground that there was no formal

authority given to the servant.

Secondly, to make masters liable for the acts of their servants makes them

to remain vigilant and caution in respect of the acts of their employers.

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Bl The Second Reason for making the Master Liable in his Pecuniary

Position

The master are in a financial position to redress the injury caused by the

acts of their servants. It is a principle of justice that one who is in a

position to make good the loss caused by him or on his behalf should not

escape the liability of the paying it delegating the exercise of it to the

agents from whom no redress can be obtained. If a matter keeps a servant

at a place where he can cause mischief the matter must be answerable for

that.

21 Representatives of a Dead Man are in certain cases liable for the Acts of

the Deceased

This is a second form of vicarious liability. As pointed out earlier, there is no

vicarious liability in criminal law, so the representatives of a dead man are not

liable for the criminal acts done by him before his death. So far s the civil

liabilities of the deceased are concerned most of them are transferred upon his

representatives.

For example, a debt or damages for which a deceased was liable will have to be

paid by his representatives. Whether the representatives of a deceased should be

liable or not in cases of the penal redress which was to be made by the deceased

in a question on which there has been a difference of opinion. The penal redress

partakes the nature of punishment and compensation both.

According to the principle, the former liability should extinguish with the death of

the wrongdoer, but.. .the latter liability survives him.

The main problem was how to transfer this liability on the representative.

932

The older view was that the action for the penal redress dies with the wrongdoer

and his representatives cannot be held liable for it. This view is no longer

accepted.

In modern times, the representatives of a deceased are liable in caes of penal

redress also and in many legal systems it has been embodied in a statute.

f

It is considered that although liability to afford redress ought to depend in the

point of origin upon the requirements of punishment, it should depend in point of the continuance upon those of compensation1.

Representative are held liable on the ground that when a valuable right of a person

"against a wrong has been committed" has come into existence, he should not be

disappointed. A person who has succeeded to the estate of the deceased must pay

and he is liable to pay it on the same ground on which he is liable to pay a debt of

the deceased.

Secondly, holding representatives liable will work as a deterrent. The person who

commits a wrong shall be made to think that in any case he shall have to redress

the wrong and after his death his representatives shall be liable. It will deter a

person from doing a wrong of this kind.

The principle of vicarious liability also extends to living representatives for the

acts of the dead in certain cases. This is enshrined in the Latin maxim- “action

personalis maritur cum persona ” which means that an action dies with the death

of the person. Therefore, all pergonal actions such as assult, defamation, trespass,

etc. come to an end with the death of a person. But in cases of unjust enrichment,

the heirs or successors of the deceased shall be vicariously liable for the wrongful

acts of the dead man.

1 SALMOND: Jurisprudence

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THE MEASURE OF LIABILITY

The nature, the kinds and the conditions of liability have been discussed. Now a practical

question remains to be answered, e.g. “what is the measure of liability"

In other words, it means that what are the consideration sin determining the punishment

for a criminal wrong and what are the consideration in determining the amount payable to

the plaintiff by the defendant as redress for a civil wrong. The principle to determine the

punishment in the case of a crime, and the damages of compensation in the case of a civil

wrong are entirely different from each other. Here they shall be discussed separately.

THE MEASURE OF CRIMINAL LIABILTY

DEPENDS UPON THE THEORY OF PUNISHMENT, ON THE CONCEPT OF

THE STATE

The measure of the criminal liability is different in different legal systems. The measure

of the liability is determined on various considerations:

a) First, the measure of liability in a particular society depends on the theory or, in

other words the aim of the punishment, recognized by the society. If eh

punishment is for the purposes of the retribution, the law will look into the motive

of the wrongdoer and would take it as the chief measure of the liability. If the

purpose of punishment is to refomi the wrongdoer, the measure of the liability

would be the character of the wrongdoer and so on:

b) Second, the measure of the liability depends upon the concept of the state and the

kind of the government in a particular society. In Nazi Germany to be a jew was

the gravest offence, and similarly to speak and to act against the wishes of the

dictator was a very serious crime. In a socialist state the grave offences are those

that undermine the interest of the society.

c) Third, the measures of the liability also on the values which are recognized n a

particular society. In India, where sex morality is considered to be a great virtue

the punishment for sexual offences has been very severe since early time, but in

England, where the sex morality is not the same as it is in India, adultory is not an

934

offence and in some cases seduction is a civil wrong and the wrongdoer is liable

only for compensation.

MODERN PRINCIPLE

Thus, in modem times the principle is that all the offences do not involve equal guilt on

the part of the wrongdoer and all the offender are not guilty for the same offence. This

being so, the punishment of all kinds of offences and for all wrongdoers having

committed the same offence cannot be uniform. The aim of the law is to bring the

maximum good at the costs of the maximum sacrifice, therefore, in awarding the

punishment it proceeds on foe same line. If the punishment is same for assault and

murder, a person who intends to cause injury to his enemy would prefer to cause the later

kind of the injury.

Thus the uniform punishment for every offence would bring more evil than good.

Similarly, if the punishment is very severe such as hanging for petty thefts it may bring

down the crimes, but the "evil so prevented would be far outweighted by that which the

law would be called on to inflict in the cases in which its threats proved unavailing”.

Therefore, the different offences have different punishments and secondly the judge is

left with ample direction in awarding punishments. The law has generally fixed the

maximum punishment that can be awarded in a particular offence and the judge awards

the punishment within the limit taking into consideration the nature of the guilt, and the

character of the offender, etc.

In modern times, thought there is a great theoretical support of the reformative theory of

punishment in practice, the punishment to some extent, serves the retributive purpose and

in the most part the deterrent purposd. Therefore, the factors which are taken into

consideration in determining the liability are the following.

1) Motive for the commission of the offence.

2) The magnitude of the offence

3) The character of the offender

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11 Motive for the Commission of the Offence.

The motive of the offence is a very important factor in determining the liability. If

the motive to commit the offence is very strong, the punishment would be severe,

because the punishment aims at counteracting the motives which made the

offender to commit the crime.

21 The Magnitude of the Offence

The other things being equal, if an offence brings greater evil consequences or has

greater evil tendencies the punishment should be severe. Some criticize this view

and say that the liability should not be determined on the basis of the evil caused

to a person, but it should be determined on the basis of the benefit derived by the

offender by his wrongful act. It is submitted that the punishment on the basis of

the magnitude of the offence greatly helps in preventing offences, and where the

offender is to choose one wrongful act out of many of the same nature, he would

prefer to commit one for which there is lesser punishment. Thus the severe

punishment for grave offences deters the wrongdoer from committing it.

21 The Character of the Offender

The character of the offender is also a fact or in the measure liability, in other

words, it is a consideration in determining the punishment. The offenders who

have become habitual and have undergone punishment, to them punishment loses

much of its rigour and light punishment does not deter them. Therefore, they are

given severe punishments.

SOME OTHER FACTORS

There are some other factors also which are taken into consideration in determining the

punishment. One such factor is the nature of the offence. The offences which are

inhuman and heinous deserve severe punishment. The sensibility of the offender is also

taken into consideration. A simple censor or rebuke might hurt the sensibility of a

wrongdoer who did a wrong casually in the heat of a passion or anger and he may not

936

commit the offence again, but to a habitual offender the censor or rebuke will have no

effect, therefore, he should be given a severe punishment for the same offence.

THE MEASURE OF CIVIL LIABILITY

In the case of a civil wrong, motive is irrelevant. It is only the magnitude of the offence

that determines the liability. The liability of the offender is not measured by the

consequences which he meant to ensure, but by the evil which he succeeded in doing.

The liability consists of the compulsory compensation to given to the injured person and

that is to be considered as a punishment for the offence. In penal redress, compensation

in money is given to the injured person and punishment is imposed upon the offender. A

rational system of law must combine the advantages of penal redress with a coordinate

system of criminal liability. The reason is that penal redress alone is not considered to be

sufficient.

The purpose of civil liability is compensation to the injured parts. The quantum of

damages is, however, dependent on the actual loss suffered by the plaintiff. It must be noted that neither the character nor motive1 of the defendant are relevant in determining

he liability in civil cases. Law takes into consideration only the actual consequences that

follow a wrongful act and not the probable or intended ones. However, in certain cases

higher damages may be awarded where defendant’s conduct has aggravated the

plaintiffs sufferings. In others higher damages may be justified in view of the

defendant’s behaviour. Thus, the court would award higher damages to a woman

plaintiff in a defamation case as compared with the male plaintiff because law expects

greater respect for woman in the society.

It would thus be seen that liability arises out of the legal sanctions provided by the state.

It is because of these legal sanctions that the laws seeks to protest the interest of the

individuals in the society. These sanctions are an effective measure to ensure

performance of duties by persons and refrain from committing breaches thereof.

1 By way of exception, motive is relevant in only a few civil wrongs such as defamation, conspiracy, deceit, malicious prosecution, etc. the reason being that they are crime also and a crime requires "mens tea"

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Civil and criminal liabilities ensure out of the legal sanctions. The remedy for civil

wrongs is compensation or damages while for crimes, it is punishment. But as stated,

' earlier, ail criminal liability is not penal in nature nor all civil liability remedial. It is for

this reason that in modem times much importance is not given to the classification of

liability in most of the developed legal systems of the world.