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  • Negligence is defined as the absence of such care asit was the duty of the defendant to use.
  • It is a form of Mens rea.
  • It is a culpable carelessness.
  • Intention is not a necessary requirement for all torts. i.e Few forms of torts does not require that intention be proved / established. However, Crime requires that intention be proved.

Not all forms are negligence are punitive. Courts generally bring only treat those acts of “gross negligence” or “recklessness” as criminal acts.

Types of Negligence

There are two types of Negligence

  • Advertent Negligence
  • Inadvertent Negligence

Advertent Negligence

  • Also called willful negligence or recklessness.
  • Harm done is foreseen as possible or probable, but it is not willed.
  • Example: Person who drives furiously in a crowded street causes injury to persons is said to have committed Advertent Negligence.

Inadvertent Negligence

  • Negligence as a result of ignorance, thoughtlessness or forgetfulness
  • Harm is neither foreseen nor willful.
  • Example: Doctor who treats a patient with negligence

Duty of care

Standard of care

Theories of Negligence

  • Subjective Theory
  • Objective Theory
  • Theory of Strict Liability

Related Cases / Recent Cases / Case Law

  • Wilson Vs Brett
  • Allen vs Gulf Oil Refinery Ltd., (1981) 1 All ER 353 (HL) p. 365: The lesser private right must yield to the greater public interest.
  • H H The Gaekwar vs Ghandhi Katcharubhai (1900) 2 Bom LR 357, (1901) ILR 25 Bom 243: An action is maintained if the damage could have been prevented by the reasonable exercise of the powers conferred.
  • Kailas Etc. Works vs Municipality, B&N (1968) 70 Bom LR 554: It is negligence to carry out the work in a manner which results in damage unless it can be shown that that and that only was the way in which the duty could be performed.
  • Bombay Steam Navigation Co. vs Vasudev Baburao (1928) 52 Bom 32, LT 1551:106 IC 470: A contract by the bailee exempting himself from liability from negligence is not valid.
  • Wu Siew Ying t/a Fuh Lin Bud-Grafting Centre v Gunung Tunggal Quarry & Construction Sdn Bhd & Anor [2011] 2 MLJ 1: “………… an employer is not responsible for the torts committed by an independent contractor in the course of the execution of the works.”
  • Rowe v Herman & Ors [1997] 58 CONLR 38
  • Century Insurance Co Ltd v Northern Ireland Road Transport Board [1942] 1 All ER 491: Case about liability of road tanker drivers and transportation company that employs them was considered. Court found liability on the independent contractor and held that the negligence was attributed to the lorry driver.
  • Burnie Port Authority v General Jones Pty Limited [1994] 4 CLJ 1: Exceptions to the general rule that an employer is not liable for tort committed by his independent contractor
  • Dalton v. Angus [1881] 6 App Cas 740 at 829
  • Hole v. Sittingbourne and Sheerness Railway Co.[1861] 6 H & N 488 at 497 [158 ER 201 at 204])
  • Black v. Christchurch Finance Co.[1894] AC at 54; McInnes v. Wardle: Authorization of a negligent act
  • The Commonwealth v. Introvigne [1982] 150 CLR 258 at 270-271, 274-275, 279-280: Non-performance of an employer's personal duty
  • Stoneman v. Lyons [1975] 133 CLR 550 at 574: Although the general rule is that a person is not liable for the negligence of his independent contractor, it is accepted that a person who owes a duty to a third party cannot avoid responsibility for discharging that duty by delegating performance of it to an independent contractor.”
  • Lealoris (M) Sdn Bhd v Bumiputra Commerce Bank Bhd [2013] 7 MLJ 25
  • Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555]
  • Leolaris (M) Sdn Bhd v Bumiputra Commerce Bank Bhd [2013] 7 MLJ 25
  • Asahi Kosei (M) Sdn Bhd Vs Petronas Dagangan Berhad, Civil Appeal No: B-02(IM)-1422-06/2012
  • Kamlesh and Others v Attar Singh and Others, Civil Appeal Jurisdiction, Civil Appeal No 8879 OF 2015, Supreme Court of India judgment dated October 27, 2015

Related Topics

Related Acts and Statutes

Malaysian Penal Code

  • Section 137A: Deserter concealed on board merchant vessel through negligence of master
  • Section 288: Negligence with respect to pulling down or repairing buildings
  • Section 289: Negligence with respect to any animal
  • Section 304A: Causing death by negligence