Tort of Negligence and Criminal Negligence - A Comparative

Study
(Project Report)
Submitted To:

Dr. Deepak Das

Faculty Member in Law of Torts

Submitted By:
Ajay Bhatt
B.A. LL.B (HONOURS) Student
Semester III, Section B, Roll No: 05

HIDAYATULLAH
NATIONAL LAW UNIVERSITY
Uparwara Post, Abhanpur, New Raipur 493661 (C.G.)
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Date of submission: 24-08-15

Certificate

I, Ajay Bhatt, hereby declare that, this project report entitled, Tort of Negligence and
Criminal Negligence - A Comparative Study submitted to Hidayatullah National Law
University, Raipur is record of an original work done by me under the guidance of Dr. Deepak
Das, Faculty Member, H.N.L.U., Raipur and that no part of this work has been plagiarized without
citations.

Ajay Bhatt,
Semester III
Section - B
Roll no 05

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Table of Contents
1.
2.
3.
4.
5.
6.
7.

Introduction..4
Statement Of Problem.6
Objectives of The Study, Hypothesis..7
Methodology, Chapterization.8
Tort of Negligence9
Criminal Negligence10
Difference between Tort of Negligence and Criminal
Negligence.12
8. Conclusion....18
9. Bibliography.....19

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Chapter 1 : Introduction
Tort of Negligence
In everyday usage, the word negligence denotes mere carelessness. In legal sense it signifies
failure to exercise standard of care which the doer as a reasonable man should have exercised in
the circumstances. In general, there is a legal duty to take care when it was reasonably foreseeable
that failure to do so was likely to cause injury. Negligence is a mode in which many kinds of
harms may be caused by not taking such adequate precautions.
According to Winfield and Jolowicz, negligence is the breach of a legal duty to take care which
results in damage, undesired by the defendant to the plaintiff.

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In order to prove that the defendant was negligent and therefore liable for your injuries, you must
prove all of the elements. For instance, one of the element is damages, meaning the plaintiff
must have suffered damages (injuries, loss, etc) in order for the defendant to be held liable. So
even if you can prove that the defendant indeed acted negligently, you may not collect damages if
you didnt suffer any injuries.

Criminal Negligence
Criminal Negligence is negligence which requires a greater degree of culpability than the civil
standard of negligence. The civil standard of negligence is defined according to a failure to follow
the standard of conduct of a reasonable person in the same situation as the defendant. To show
criminal negligence, the state must prove beyond a reasonable doubt the mental state involved in
criminal negligence. Proof of that mental state requires that the failure to perceive a substantial
and unjustifiable risk that a result will occur must be a gross deviation from the standard of a
reasonable person. Criminal negligence is conduct which is such a departure from what would be
that of an ordinary prudent or careful person in the same circumstance as to be incompatible with
a proper regard for human life or an indifference to consequences. Criminal negligence is
negligence that is aggravated, culpable or gross.
The following is an example of one state's statute defining criminal negligence:
''A person acts with 'criminal negligence' with respect to a result or to a circumstance described by
a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such
result will occur or that such circumstance exists. The risk must be of such nature and degree that
the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable
person would observe in the situation.''

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Statement of Problem
The problem arising here is in both Tort of Negligence and Criminal Negligence shares the
term "negligence". But there's a lot of margin of degree in both the terms. If this is the case,
howre they different from one another?

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Objectives of the Study

The primary objective of this project report is to present the difference between Tort of
Negligence and Criminal Negligence. The other specific objectives of this project report include:

To present the circumstances in which these are used.

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To analyse the cases mentioned and thus differentiating them on the basis of judgement.

Hypothesis
Tort negligence is negligence thought of as a "civil wrongdoing" which is addressed in civil
courts. Criminal negligence is an act of negligence that results in a crime-such as involuntary
manslaughter which are tried in a criminal court.

Overview of Literature
1.

Bangia R.K.,Law of Torts

This book deals with the negligence defining their ambits and exceptions to those. It
further gives a proper insight to the various case laws.

2. Singh G.P.,Law of Torts

This book provides great insight on the difference and co-relations between various
negligence thus making the concept clear.

Methodology
This study has been carried out in a descriptive manner. Secondary and published
documented data has been collected through various sources and analyzed accordingly. Many
of the available literature and studies have also been consulted and reviewed to make the study
more objective. No field work has been carried out in the development of this work.

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Chapterization
1. Chapter 1: Introduction Deals with basic definition of Tort of Negligence and
Criminal Negligence.
2. Chapter 2 : Tort of Negligence Deals with the idea as well as the conditions which
leads to this Tort of Negligence..
3. Chapter 3: Necessity Deals with the idea as well as the conditions which leads to
Criminal Negligence.
4. Chapter 4: Interrelation and difference between Tort of Negligence and Criminal
Negligence Deals with similarities between the two Negligences and then the
comparison between the two.
5. Chapter 5: Conclusion Sums up the paper and stands by the hypothesis.

Chapter 2 : The Tort of Negligence

Torts are legal wrongs that one party suffers at the hands of another. Negligence is a form of tort
which evolved because some types of loss or damage occur between parties that have no contract
between them, and therefore there is nothing for one party to sue the other over.

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In the 1932 case of Donoghue v Stevenson1, the House of Lords decided that a person should be
able to sue another who caused them loss or damage even if there is no contractual relationship.
Donoghue was given a bottle of ginger beer by a friend, who had purchased it for her. After
drinking half the contents, she noticed that the bottle contained a decomposing snail and suffered
nervous shock as a result. Under contract law, Donoghue was unable to sue the manufacturer
because her friend was party to the contract, not her.
However, the House of Lords decided to create a new principle of law that stated everyone has a
duty of care to their neighbour, and this enabled Donoghue to successfully sue the manufacturer
for damages.
Lets consider a hypothetical case and use it to demonstrate how the tort of negligence works.
Harry is involved in an accident in which his car is hit by one driven by Alex. As a consequence of
the accident Harry breaks a leg and is unable to work for two months. Can Harry sue Alex for
damages?
On the face of things the answer seems obvious. Harry was injured as a result of Alex driving into
his car and so it seems fair that he should be able to sue him. However, think of the situation from
Alexs point of view, is it fair that Harry should be able to sue him just like that? People have
accidents everyday should they all be able to sue each other for every little incident? If they are
then the courts would be overwhelmed with cases.

[1932] UKHL 100[1932] SC (HL) 31

[1932] AC 562

[1932] All ER Rep 1

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Chapter 3 : Criminal Negligence

What is Criminal Negligence?

Under some criminal law statutes, criminal negligence is defined as any type of conduct that
grossly deviates from normal, reasonable standards of an ordinary person. It generally involves
an indifference or disregard for human life or for the safety of people. Sometimes the definition
for criminal negligence also requires a failure to recognize unjustifiable risks associated with the
conduct.
Examples of criminally negligent behavior may include knowingly allowing a child to be in very
dangerous conditions, or driving in an extremely irresponsible way. Criminal negligence is less
serious than intentional or reckless conduct. Generally, reckless conduct involves a knowing
disregard of risks, while negligence involves an unawareness of the risks. (R v Murphy)2

What are types of criminal negligence?

The two most common forms of criminal negligence are criminally negligent homicide and
negligent endangerment of a child. Criminally negligent homicide is willful and wanton conduct
that causes the death of another. The neglect of a child is the failure to provide for the needs of
the child and dereliction of ones duties as a parent or caretaker. The implication in a child neglect
case is that the parents lacked the mental, physical and emotional capacity to care for the child,
rather than the willful abuse of the child. (R. v. Bhalru)
2

[1997] NJ No. 143 (CA)

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Is there room to hold individuals to a lower reasonable person standard?

As the reasonable person standard is an objective benchmark by which an individual is judged,
only in cases involving mental and physical disabilities can there be room for reinterpretation. If
the individual, due to disability cannot foresee how his or her actions will lead to serious
consequences and a breach of the standard of care, then that case may be open to reinterpretation.
There is still the expectation that the individual will exercise due diligence about his or her
limitations before engaging in dangerous activity. In the case of mental disability, the court may
consider if the individuals mental state has made them unaware to perceive how his or her actions
may have lead to negligence that eventually caused serious harm.

Is criminal negligence always a criminal matter?

In cases involving insanity, some jurisdictions maintain separate standards that result in alternative
or lesser punishments to those that could not hope to maintain a normal reasonable person
standard. The liability for this person is lowered if there is the expectation that the individual
lacks the ability to function as a normal person. However, others with fully developed mental
capacities, regardless of physical disabilities are held to the same standard as able bodied
individuals. R v Coombs)

2003 BCCA 645

[2004] NJ No 162 (SC)

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Chapter 4 : Difference between Tort of Negligence and Criminal

Negligence
Tort of Negligence

In order to prove negligence and claim damages, a claimant has to prove a number of elements to
the court.
These are:

the defendant owed them a duty of care

the defendant breached that duty of care, and

they suffered loss or damage as a direct consequence of the breach.

Even if negligence is proved, the defendant may have a defence that protects them from liability,
or reduces the amount of damages they are liable for.

ELEMENT 1 THE DUTY OF CARE

As we saw earlier, the concept of a duty of care was created in the Donoghue case. The House of
Lords stated that every person owes a duty of care to their neighbour. The Lords went on to
explain that neighbour actually means persons so closely and directly affected by my act that I
ought reasonably to have them in contemplation as being so affected. This is a very wide (and
complicated) definition that could include almost anyone if still in operation today the courts
would most certainly be overrun with cases.
The later cases of Anns v Merton London Borough Council (1977)5 and Caparo Industries plc v
Dickman (1990) 6 restricted the definition a little by introducing proximity and fairness.
Proximity simply means that the parties must be sufficiently close so that it is reasonably
5 [1977] UKHL 4
[1978] AC 728
[1977] 2 All ER 492
[1977] 2 WLR 1024

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foreseeable that one partys negligence would cause loss or damage to the other. Fairness means
that it is fair, just and reasonable for one party to owe the duty to another.
What does this mean for Harry? I think youll agree that Alex owes him a duty of care. There is
sufficient proximity (ie Alex drove into Harrys car); it is reasonably foreseeable that a collision
between the cars could cause Harry some injury, and it seems fair, just and reasonable for Alex to
owe a duty of care to Harry (and indeed all other road users).

ELEMENT 2 BREACH OF DUTY OF CARE

In many cases brought before the courts it is evident that a duty of care exists between the
defendant and the claimant. The real issue is whether or not the actions of the defendant were
sufficient to meet their duty. To determine this, the court will set the standard of care that they
should have met. This standard consists of the actions which the court considers a reasonable
person would have taken in the circumstances. If the defendant failed to act reasonably given
their duty of care, then they will be found to have breached it.
This reasonable standard may be adjusted given the actual circumstances of the case. For
example, if the claimant is vulnerable, such as being disabled or frail, it is reasonable to expect the
defendant to have paid them special attention or taken extra care over them as compared to
someone who is fit and healthy.
Other circumstances which may be taken into account include whether:

The actions the defendant took are in line with common practice or industry
recommendations. If they were, then it is likely that the defendant will be found to have met
their duty unless the common practice itself is found to be negligent.
There was some social benefit to the defendants actions. If there was, then the court may
consider it inappropriate for them to be found to have breached their duty.
The defendants actions had a high probability of risk attached to them. If they did, then
the court will expect them to show they took extra precautions to prevent loss or damage.
There were practical issues that prevented reasonable precautions being taken, or
unreasonable cost would have been involved in taking them. If there were, then the court is
unlikely to expect the defendant to have taken them in order to meet their duty of care.

1990] UKHL 2, [1990] 2 AC 605

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The defendant is a professional carrying on their profession. If they were, then the court
will judge their actions against a reasonable professional in their line of work, rather than just
any ordinary person. If professional guidelines are in place then the court will judge the
defendants actions against these rather than its own expectations.

Back to the case of Harry and Alex. In determining whether or not Alex broke his duty of care, a
court will consider whether or not, given the circumstances, he drove as a reasonable person
would have. For example, if it was foggy or wet at the time, he would be expected to show that he
drove cautiously. In determining whether Alexs actions were reasonable, evidence may have to be
taken from witnesses and expert analysis of the crash may be required. For now, lets assume Alex
was not driving reasonably.

RES IPSA LOQUITUR

In extraordinary cases, the facts may be so overwhelmingly in favour of the claimant that the court
decides the defendant should prove that they were not negligent. The legal term for this is res ipsa
loquitur (meaning the facts speak for themselves). It applies in circumstances where the cause of
the injury was under the control of the defendant and that the incident would not have occurred if
they had taken proper care. It is often applied in medical cases, for example in Mahon v Osborne
(1939), a surgeon had to prove it was not negligent to leave a swab inside a patient.

ELEMENT 3 LOSS OR DAMAGE AS A RESULT OF THE BREACH

In this element the claimant simply has to prove that the loss or damage was a direct consequence
of the defendants breach of duty of care. In other words that there is a chain of causality from the
defendants actions to the claimants loss or damage. A simple test, called the but for test is
applied. All the claimant has to prove is that if it were not but for the actions of the defendant
then they would not have suffered the loss or damage.
Where there is more than one possible cause of the loss or damage, the defendant will only be
liable if it can be proved that their actions are the most likely cause.
A good case which illustrates how the but for test operates is Barnett v Chelsea and Kensington

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HMC (1969) 7 another medical case. A casualty department doctor negligently sent a patient
home the patient died. However, the doctor was not found liable for damages because the patient
was suffering from arsenic poisoning and would have died no matter what the negligent doctor
could have done.
The loss itself must not be too remote. It is an important principle that people should only be
liable for losses which they should have reasonably foreseen as a potential outcome of their
actions. The Wagon Mound (1961) is a case often cited in explanation of this principle. Oil leaked
out of the defendants boat within Sydney harbour and came into contact with some cotton waste
which had fallen into the water. The oil was of a particular type which would not foreseeably
catch fire on water. However, the cotton ignited and this in turn set the oil ablaze causing damage
to the claimants wharf. The defendants were not found liable for fire damage as the actual cause
of the fire was held too remote.

NOVUS ACTUS INTERVIENIENS

Other events, which are outside the control of the defendant, may intervene in the chain of
causality adding some confusion to the outcome of a case. The good news is that there are some
simple rules to remember that deal with them.
At all times you should bear in mind that the defendant will only be liable if their actions are the
most probable cause of the loss or damage. They will not be liable if an intervening act becomes
the real cause. Examples of intervening acts which remove liability from the defendant include:

Actions of the claimant which are unreasonable, or outside what the defendant could have
foreseen in the circumstances.
Actions of a third party which become the real cause of the loss or damage. The defendant
is only liable for damages up until the point when the third party intervened.
Unforeseeable natural events natural events which the defendant could have reasonably
foreseen do not affect things.

Lets return to Harry and Alex. It is entirely possible for the accident to be caused by a third party
driving into Alex, forcing him into Harry. It is also possible that Harry himself was an intervening
7

[1968] 3 All ER 1068

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factor maybe he was driving erratically. Either of these factors could mean that Alexs breach of
duty is not the real cause of Harrys injuries.
For now, lets assume that no third party is involved and that any actions Harry took are not
enough to take the blame for the cause of the accident away from Alex. The court will therefore
find Alex liable for negligence to Harry.

DEFENCES

There are two defences a defendant can use where they are found liable for negligence. One will
exonerate them completely; the other reduces the level of damages they are liable for.
Volenti non fit injuria simply means the voluntary acceptance of the risk of injury. If a defendant
can prove the claimant accepted the risk of loss or damage, they will not be liable. Acceptance can
be express (usually by a consent form being signed) or implied through the claimants conduct.
Contributory negligence takes part of the blame away from the defendant if it can be proved the
claimant contributed in some way to their loss or damage. The defendant is still liable, but will
face a reduced damages payout.
In Harry and Alexs case, volenti is not an issue in no way did Harry consent to the accident.
However, if his actions contributed in some way to his injuries, maybe by not wearing a seatbelt,
then he may find the amount of damages he receives is reduced.

Criminal Negligence
Is Criminal Negligence Different From Civil Negligence?

Yes- the standard for proving criminal negligence is somewhat higher than that for civil
negligence. Civil negligence is usually defined as a failure to fulfill ones duty, or a failure to
follow the normal standards of conduct for a reasonable person.

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In comparison a finding of criminal negligence requires that the person exercised a gross or
aggravated deviation from acceptable societal norms. In other words, the conduct must have
some element of an unjustifiable disregard of standards in order for it to be considered criminal.
Part of this difference also lies in the way that criminal cases are tried in comparison to civil
negligence claims. In a criminal case, it is the state that is filing the claim against the defendant.
Criminal cases involve punishments such as fines or jail time for the purpose of penalizing the
defendant. Basically, the conduct must be sufficiently disruptive or damaging in order to justify a
punishment by the state.
In contrast, a civil negligence claim is filed by one private citizen against the other. Rather than
punishment for the defendant, the focus in a civil claim is on reimbursing the victim for their
losses.

What are the Legal Penalties for Criminal Negligence?

One thing about criminal negligence is that it is often used to characterize the seriousness of other
types of crimes. The mind state of criminal negligence is usually attached to a different type of
charge.
For example, typical criminal cases involving negligence might list charges such as:

Criminally negligent homicide

Negligent endangerment of a child

Negligent driving of an automobile

Thus, the legal penalties will usually be based on the base crime to which the negligence is being
attached. For instance, with criminally negligent homicide, the defendant may face penalties
that are associated with most homicide claims, such as prison time for over one year. However,
for a less serious base crime such an automobile violation, the punishments may only involve a
criminal fine, or time in jail for less than one year.
Defenses to criminal negligence typically involve some sort of negation of the defendants mind
state, such as involuntary intoxication.

How is this more serious than other forms of negligence?

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Criminal negligence, as the name implies is not a civil lawsuit but rather a criminal matter as it
violates the standard of care expected by the community. Therefore, all that is needed for a
conviction is proof off the accused partys culpability in the death of the other party and that the
defendant was willfully unaware of his or her actions and its potential to hurt others. R. v. Carleton

Under what circumstances could a person avoid legal liability?

If it is found that the defendant took all adequate precautions in the accidental death of another,
then that person may avoid liability. For instance, if a skydivers parachute fails to deploy,
causing the death of that individual, the organizer may avoid liability if it is proven, beyond
reasonable doubt that, that the parachutes were inspected, adequate lessons were given and the
parachute was aware of the inherent risks of this activity. Criminal responsibility could stem from
9

a lack of proper preparation or safety precautions. R v Regier

8
2012 MBPC 54 (CanLII)

9
[2011] OJ No 3749

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Conclusion
In Tort of Negligence, the mens rea might not be present. But in Criminal Negligence,
there is mens rea of the offender. And the degree of brutality Criminal Negligence is far more
greater than the Tort of Negligence. The decree of punishment is greater that that of Tort of
Negligence because the outcome or the result of the act is more disturbing than that of Tort of
Negligence.

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Bibliography
Books
1. Dr. S.K. Kapoor, Law of Torts and Consumer Protection Act, 6th Edition 2003; Published by
Central Law Agency, Allahabad.
2. M.N. Shukla, The Law of Torts and Consumer Protection Act, 18th Edition 2010; Published by
Central Law Agency, Allahabad.
3. R.K. Bangia, Law of Torts , 19th Edition, 2008, Publisher: Allahabad Law Agency.
4. Ratanlal and Dhirajlal, The Law of Torts, 24th Edition 1997 Reprint 2002; Published by
Wadhwa and Company, Nagpur, India.
5. B.M. Gandhi, Law of Torts, Third Edition 2006 Reprint 2010; Published by Eastern Book
Company, Lucknow, India.

Websites
1.
2.
3.
4.

http://www.jstor.com/
http://lawoctopus.com/
http://www.scribd.com/
http://www.slideshare.net/

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