Negligence — Theories, Subjective & Objective — Jurisprudence Notes

Negligence — Theories, Subjective & Objective

In Donoghue v Stevenson (1932), a decomposed snail in a ginger-beer bottle gave the law its most famous sentence — Lord Atkin’s “neighbour principle”: you must take reasonable care not to injure your “neighbour”, meaning anyone so closely affected by your act that you ought to have them in mind. That single idea — a duty to take care — is the heart of negligence.

What negligence is, its essentials, and the two theories

Everyday hook: negligence is the wrong of carelessness — not meaning to harm, but failing to take the care a sensible person would, and causing harm as a result. Negligence is the breach of a legal duty to take care, resulting in damage to the plaintiff.

The essentials of negligence (learn the three — the mark-winner):

1. A duty of care owed to the plaintiff. The defendant must owe the plaintiff a legal duty to take care (the neighbour principle decides to whom a duty is owed).

2. Breach of that duty. The defendant failed to come up to the standard of care the law requires — he did not do what a reasonable person would have done, or did what a reasonable person would not.

3. Resulting damage (caused by the breach). The breach must have caused the plaintiff actual damage that is not too remote. No damage, no negligence (negligence is not actionable per se).

The two theories of negligence (this is the part that separates a good answer):

A. The Subjective Theory (Salmond)

Negligence is a state of mind — a mental attitude of undue indifference or carelessness towards one’s conduct and its consequences. On this view negligence is culpable carelessness: the wrongdoer did not desire the harm (which separates it from intention), but his inattentive, careless mental state is itself blameworthy. Negligence is thus a fault of the mind — the opposite of taking care.

B. The Objective Theory (Frederick Pollock)

Negligence is not a state of mind at all but a type of conduct — a failure to conform to an objective standard of the “reasonable person”. The question is not what the defendant actually had in mind, but whether his conduct fell below the care a reasonable, prudent person would have taken in the circumstances. What the defendant personally intended or foresaw is irrelevant; the law measures him against an external, objective yardstick. Modern tort law follows this objective theory.

The practical difference: the subjective theory asks “was his mind careless?”; the objective theory asks “did his conduct fall below the reasonable standard?” Because the objective test is easier to apply and does not require proving a state of mind, it prevails in modern law — the standard is that of the reasonable man, not this particular defendant.

Baron Alderson (Blyth v Birmingham Waterworks, 1856): “Negligence is the omission to do something which a reasonable man would do, or doing something which a prudent and reasonable man would not do.”

In Simple Terms: Negligence is careless conduct that breaches a duty of care and causes damage. You need three things — a duty, its breach, and resulting harm. The subjective theory treats negligence as a careless mind; the objective theory (now preferred) treats it as conduct falling below the reasonable-person standard.

🧩 WORKED EXAMPLE — Applying the three essentials

Facts. A driver texting at the wheel fails to brake and injures a pedestrian on a crossing.

Rule. Negligence needs (i) a duty of care, (ii) breach, (iii) resulting damage.

Apply. (i) A driver owes a duty of care to other road-users (the pedestrian is his “neighbour”). (ii) Texting instead of watching the road is a breach — a reasonable driver would not do it (objective standard). (iii) The pedestrian’s injury is the damage caused by that breach.

Conclusion. All three essentials met — the driver is liable in negligence. Note that we judged him by the reasonable driver (objective theory), not by whether he “meant” to be careless.

flowchart TD
    NG["NEGLIGENCE<br/>breach of a duty of care causing damage"]:::root
    NG --> E1["Duty of care (neighbour principle)"]:::leaf
    NG --> E2["Breach (below reasonable standard)"]:::leaf
    NG --> E3["Resulting damage (not too remote)"]:::leaf
    NG --> TH{"Theory"}:::dec
    TH -->|"Salmond"| SUB["Subjective — a careless state of MIND"]:::leaf
    TH -->|"Pollock (preferred)"| OBJ["Objective — CONDUCT below reasonable person"]:::leaf
    classDef root fill:#FFF8DC,stroke:#000,stroke-width:1px,color:#000;
    classDef leaf fill:#E6F3FF,stroke:#1E3A8A,color:#000;
    classDef dec fill:#FFE8C2,stroke:#B45309,color:#000;
    linkStyle default stroke:#888,stroke-width:1px;

Case Laws

• Donoghue v Stevenson (1932) — the neighbour principle: a duty of care is owed to those closely and directly affected by one’s acts.
• Blyth v Birmingham Waterworks (1856) — the classic objective definition of negligence (the reasonable man).
• Municipal Corporation of Delhi v Subhagwanti (1966) — the collapse of a clock tower; failure of the duty of care by the body in control (res ipsa loquitur).

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