“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”.

– Winfield


From a common prudent man’s understanding, negligence is a breach of duty caused by omission to do an act that a reasonable man would do or doing something which a prudent man would not do[1]. There is some duty of care and it is an absence of such care which was implied in a person to do. Here when we talk about duty of care, it means ordinary care and skill. The Law of negligence is consistently derived due to social, economic, and political considerations.


There are three very essentials of negligence, they are:

  • Legal duty of care
  • Breach of that particular duty
  • Consequential damage


There are broadly three categories of negligence:

  • Non-feasance – It is a non-performance of some act that was obligatory and should have been performed.

Illustration: If there is a river in which there are some water games being held and to stop accidents divers are hired with some salary and accidentally one person losing control over the raft fall in the river and after some time dies. Now if the diver even after seeing the person drowning does not go to save him, here non- feasance will apply. It is the duty of the diver to go and save him but he breached that duty which resulted in the death of that person.

  • Misfeasance – In this negligence there is a performance of an act but not in a proper way.

Illustration: If a doctor operated on a person without following proper hygiene and used rusted scissors, it caused a serious wound that led to an infection which caused his death. Here the doctor was obliged under a legal duty to use proper tools. Here he performed an act of misfeasance.

  • Malfeasance – It is the commission of a wrongful act, especially by a public official. It is a legal and moral wrong.

Illustration: If a police officer is taking bribes from a person who is arrested in the offense of murder for tempering the evidence. Even after knowing that his act is illegal, the police officer continues to carry on doing the act, he is doing an act of malfeasance.


Comparison of Salmond and Winfield’s definition regarding tort:

According to Salmond, “Tort is a civil wrong for which remedy is unliquidated damages and is not exclusively the breach of contract or breach of trust merely equitable obligations[2]”.

Salmond said that torts are confined to some specific wrongs, outside that there is no scope and no remedy is available.

According to Winfield, “Tort is a breach of duty primarily fixed by law which is toward public generally. This breach is redressable by an action for unliquidated damages[3]”.Winfield said that the periphery of torts is never closed and as it is an emerging law, it has no barriers.

Analyzing both jurists’ views about torts, we can say that their views are not the same regarding the periphery of torts. But when we see their thought regarding negligence we did not find any difference as both of them do not consider negligence as a separate tort.


After analyzing Winfield and Salmond’s definition of let’s now discuss the subjective theory of negligence:

According to this theory, negligence is a state of mind. It is based on ‘mens rea. It does not consider negligence as a specific tort. It says that This theory is propounded by Salmond and supported by Winfield.


According to this theory, negligence is not a state of mind or a form of mens rea but a particular conduct. It is a specific tort in itself. Describing negligence as a specific conduct sir Federick Pollock said, “Negligence is the contrary of diligence and no one describes it as the state of mind”.


Contributory Negligence: Here, the damage is caused by the fault of the plaintiff himself. The concept of Volenti Non-Fit Injuria is well applied here. Here plaintiff him\herself causes negligence, they now cannot ask for damages. Here the burden of proof lies on the defendant that the plaintiff was also at fault.

Inevitable Accident: It is an accident that cannot be avoided even with reasonable precautions. It should be without intention and there is some sort of human intervention. Under negligence, a defendant is not liable for the inevitable accident.

Act of God: Vis-Majeure or act of God is a sudden act of nature resulting in greater harm. Example: Earthquake, storm, tempest, etc. The defendant will not be liable for an act of God.                               


Negligence as a separate tort brought a new kind of radiance in the field of law as there were so many wrongs that were not brought under tortious liability and the debate of whether negligence is a separate tort or a part of it was long and confusing. But with the rise of cases of negligence need was felt to include negligence as a separate tort. As we saw increasing cases of medical negligence and difficulty in fixing their liability, the court fixed their legal duty of reasonable care. Now we can easily approach the courts if we ever feel that somebody neglected their legal duty toward us. Laws are a matter of interpretation and the debate is still too long.

Author’s Name: Shweta Jugran (National Forensic Sciences University, Gandhinagar)

[1] Law of Torts by N V PARANJAPE

[2] The Law of Torts by Ratanlal and Dhirajlal

[3] The Law of Torts by Ratanlal and Dhirajlal

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