Chapter XI.: Negligence, I.—: The General Conception.

Omission contrasted with action as ground of liability. For acts and their results (within the limits expressed by the term “natural and probable consequences,” and discussed in a foregoing chapter, and subject to the grounds of justification and excuse which have also been discussed) the actor is, generally speaking, held answerable by law. For mere omission a man is not, generally speaking, held answerable. Not that the consequences or the moral gravity of an omission are necessarily less. One who refrains from stirring to help another may be, according to the circumstances, a man of common though no more than common good will and courage, a fool, a churl, a coward, or little better than a murderer. But, unless he is under some specific duty of action, his omission will not in any case be either an offence or a civil wrong. The law does not and cannot undertake to make men render active service to their neighbours at all times when a good or a brave man would do so. Some already existing relation of duty must be established, which relation will be found in most cases, though not in all, to depend on a foregoing voluntary act of the party held liable. He was not in the first instance bound to do anything at all; but by some independent motion of his own he has given hostages, so to speak, to the law. Thus I am not compelled to be a parent; but if I am one, I must maintain my children. I am not compelled to employ servants; but if I do, I must answer for their conduct in the course of their employment. The widest rule of this kind is that which is developed in the law of Negligence. One who enters on the doing of anything attended with risk to the persons or property of others is held answerable for the use of a certain measure of caution to guard against that risk. To name one of the commonest applications, “those who go personally or bring property where they know that they or it may come into collision with the persons or property of others have by law a duty cast upon them to use reasonable care and skill to avoid such a collision. The caution that is required is in proportion to the magnitude and the apparent imminence of the risk: and we shall see that for certain cases the policy of the law has been to lay down exceptionally strict and definite rules. While some acts and occupations are more obviously dangerous than others, there is hardly any kind of human action that may not, under some circumstances, be a source of some danger.General duty of caution in acts. Thus we arrive at the general rule that every one is bound to exercise due care towards his neighbours in his acts and conduct, or rather omits or falls short of it at his peril; the peril, namely, of being liable to make good whatever harm may be a proved consequence of the default.

Overlapping of contract and tort. In some cases this ground of liability may co-exist with a liability on contract towards the same person, and arising (as regards the breach) out of the same facts. Where a man interferes gratuitously, he is bound to act in a reasonable and prudent manner according to the circumstances and opportunities of the case. And this duty is not affected by the fact, if so it be, that he is acting for reward, in other words, under a contract, and may be liable on the contract. The two duties are distinct, except so far as the same party cannot be compensated twice over for the same facts, once for the breach of contract and again for the wrong. Historically the liability in tort is older; and indeed it was by a special development of this view that the action of assumpsit, afterwards the common mode of enforcing simple contracts, was brought into use. “If a smith prick my horse with a nail, &c., I shall have my action upon the case against him, without any warranty by the smith to do it well. . . . . For it is the duty of every artificer to exercise his art rightly and truly as he ought”. This overlapping of the regions of Contract and Tort gives rise to troublesome questions which we are not yet ready to discuss. They are dealt with in the concluding chapter of this book. Meanwhile we shall have to use for authority and illustration many cases where there was a co-existing duty ex contractu, or even where the duty actually enforced was of that kind. For the obligation of many contracts is, by usage and the nature of the case, not to perform something absolutely, but to use all reasonable skill and care to perform it. Putting aside the responsibilities of common carriers and innkeepers, which are peculiar, we have this state of things in most agreements for custody or conveyance, a railway company’s contract with a passenger for one. In such cases a total refusal or failure to perform the contract is rare. The kind of breach commonly complained of is want of due care in the course of performance. Now the same facts may admit of being also regarded as a wrong apart from the contract, or they may not. But in either case the questions, what was the measure of due care as between the defendant and the plaintiff, and whether such care was used, have to be dealt with on the same principles. In other words, negligence in performing a contract and negligence independent of contract create liability in different ways: but the authorities that determine for us what is meant by negligence are in the main applicable to both.

Definition of negligence. The general rule was thus stated by Baron Alderson: “Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do”. It was not necessary for him to state, but we have always to remember, that negligence will not be a ground of legal liability unless the party whose conduct is in question is already in a situation that brings him under the duty of taking care. This, it will be observed, says nothing of the party’s state of mind, and rightly. Jurisprudence is not psychology, and law disregards many psychological distinctions not because lawyers are ignorant of their existence, but because for legal purposes it is impracticable or useless to regard them. Even if the terms were used by lawyers in a peculiar sense, there would be no need for apology; but the legal sense is the natural one. Negligence is the contrary of diligence, and no one describes diligence as a state of mind. The question for judges and juries is not what a man was thinking or not thinking about, expecting or not expecting, but whether his behaviour was or was not such as we demand of a prudent man under the given circumstances. Facts which were known to him, or by the use of appropriate diligence would have been known to a prudent man in his place, come into account as part of the circumstances. Even as to these the point of actual knowledge is a subordinate one as regards the theoretical foundation of liability. The question is not so much what a man of whom diligence was required actually thought of or perceived, as what would have been perceived by a man of ordinary sense who did think. A man’s responsibility may be increased by his happening to be in possession of some material information beyond what he might be expected to have. But this is a rare case.

As matter of evidence and practice, proof of actual knowledge may be of great importance. If danger of a well understood kind has in fact been expressly brought to the defendant’s notice as the result of his conduct, and the express warning has been disregarded or rejected, it is both easier and more convincing to prove this than to show in a general way what a prudent man in the defendant’s place ought to have known. In an extreme case reckless omission to use care, after notice of the risk, may be held, as matter of fact, to prove a mischievous intention: or, in the terms of Roman law, culpa lata may be equivalent to dolus. For purposes of civil liability it is seldom (if ever) necessary to decide this point.

The standard of duty does not vary with individual ability. We have assumed that the standard of duty is not the foresight and caution which this or that particular man is capable of, but the foresight and caution of a prudent man—the average prudent man, or, as our books rather affect to say, a reasonable man—standing in this or that man’s shoes. This idea so pervades the mass of our authorities that it can be appreciated only by some familiarity with them. In the year 1837 it was formally and decisively enounced by the Court of Common Pleas. The action was against an occupier who had built a rick of hay on the verge of his own land, in such a state that there was evident danger of fire, and left it there after repeated warning. The hayrick did heat, broke into flame, and set fire to buildings which in turn communicated the fire to the plaintiff’s cottages, and the cottages were destroyed. At the trial the jury were directed “that the question for them to consider was whether the fire had been occasioned by gross negligence on the part of the defendant,” and “that he was bound to proceed with such reasonable caution as a prudent man would have exercised under such circumstances.” A rule for a new trial was obtained “on the ground that the jury should have been directed to consider, not whether the defendant had been guilty of gross negligence with reference to the standard of ordinary prudence, a standard too uncertain to afford any criterion; but whether he had acted bona fide to the best of his judgment; if he had, he ought not to be responsible for the misfortune of not possessing the highest order of intelligence.” The Court unanimously declined to accede to this view. They declared that the care of a prudent man was the accustomed and the proper measure of duty. It had always been so laid down, and the alleged uncertainty of the rule had been found no obstacle to its application by juries. It is not for the Court to define a prudent man, but for the jury to say whether the defendant behaved like one. “Instead of saying that the liability for negligence should be coextensive with the judgment of each individual—which would be as variable as the length of the foot of each individual—we ought rather to adhere to the rule which requires in all cases a regard to caution such as a man of ordinary prudence would observe”. In our own time the same principle has been enforced in the Supreme Court of Massachusetts. “If a man’s conduct is such as would be reckless in a man of ordinary prudence, it is reckless in him. Unless he can bring himself within some broadly defined exception to general rules, the law deliberately leaves his personal equation or idiosyncracies out of account, and peremptorily assumes that he has as much capacity to judge and to foresee consequences as a man of ordinary prudence would have in the same situation”.

Diligence includes competence. It will be remembered that the general duty of diligence includes the particular duty of competence in cases where the matter taken in hand is of a sort requiring more than the knowledge or ability which any prudent man may be expected to have. The test is whether the defendant has done “all that any skilful person could reasonably be required to do in such a case”. This is not an exception or extension, but a necessary application of the general rule. For a reasonable man will know the bounds of his competence, and will not intermeddle (save in extraordinary emergency) where he is not competent.