Jurisprudence-II

Assignment
Prepared by: Muhammad Ahmed Salar
(007)
Abdul Sumair (049)
Amir Qalab (008)
Mehmood ul Hassan Umar (080)
Mahboob Aftab (070)
Section: Blue
 Intention and Negligence

Intention:
The desire of consequences is termed intention. Intention is the purpose or design with
which an act is done. An act is intentional if, and in so far as, it exists in idea before it
exists in fact, the idea realising itself in the fact because of the desire by which it is
accompanied. All the law systems make a man responsible for the consequences of certain
acts, just because he foresaw them. Intent is made up of two factors i.e. foresight of certain
consequences that follow an act, and work for those consequences working as a motive
which induces the act.
Austin’s analysis:
Austin has analysed intention into the following components:
1) An advertence to the consequences.
2) A desire that it shall happen.
3) A belief that the contemplated act will bring it about, or at least, an indifference as
to whether it will or will not follow from the act.
From the points above, we can see that Austin considers not only the desire for a
consequence as intention but also recklessness and rashness or that due indifference to a
certain degree in which profitable consequences arise.
Acts with respect to intention:
An act may be of three types with regards to intention:
a) It may be wholly unintentional for example, if I forget to pay a debt because I have
forgotten that it exists. This means that the wholly unintentional has no purpose or
design.
b) It may be wholly intentional for example, if I don’t pay the debt because I don’t
want to lose my money. This means that the wholly intentional has some intended
consequences that the actor is aware of when he acts.
c) It be intentional in part only, for example if I throw a stone to break a window but a
bystander in the process instead.
Intention in wrongs:
To Salmond, any wrong which is intended only in part, must be classed as unintended and
the doer cannot be dealt with as a wilful wrongdoer. If A raises a loaded gun knowing it is
loaded directs it at B and pulls the trigger and as a consequence of which B dies, A will not
be allowed to plead innocence. Or, if A intentionally upsets a glass of water, he will not be
allowed to maintain that he did not intend to spill the contents on the surface beneath. This
iterates the concept of intention in common law that in all those cases where inevitable
consequences may as matter of common-sense imply both foresight and desire, a person
may be held to have intended them and be dealt with accordingly.
Now cases in which there is foreknowledge without desire, must be distinguished from
another class, where there may be foresight of consequences without any desire for them
and where there is no foresight at all and yet the wrongdoer is held for the consequences.
Also, advertent negligence is usually placed on a level with intention for according to the
maxim, ‘Gross negligence is intentional wrong.’
A range of words represents shades of intent in criminal laws around the world. The mental
element, or mens rea, of murder, for example, is traditionally expressed as malice
aforethought, and the interpretations of malice, "maliciously" and "willful" vary between
pure intent and recklessness or negligence, depending on the jurisdiction in which the crime
was committed and the seriousness of the offence. The intent element of a crime, such as
intent to kill, may exist without a malicious motive, or even with a benevolent motive, such
as in the case of euthanasia, where one intentionally ends a life to relieve pain and
suffering.
Intention and motive:
Intention and motive are taken as synonyms in our daily lives but they must be
distinguished for the sake of jurisprudence. It is not always to do so. Motive is that which
moves a person to a particular course of conduct for an act and certainly a wrongful act is
seldom intended and desired for its own sake. The harmful consequences are intended and
desired. The harmful consequences are intended because the actor hopes to obtain some
advantage for himself. He intends both his consequences as well as his ulterior object. The
former is the immediate intent or intention, the ulterior intent or motive of the act.
An example of immediate intent is the case of A murdering B because A is B’s legal
inheritor. Now the immediate intent is that A wants to end the life of B. The ulterior object
or motive is that A wants his inheritance before his time.
A person's ulterior intent may be complex instead of simple; he may act from two or more
concurrent motives instead of from one only. He may institute a prosecution, partly from a
desire to see justice done, but partly also from ill-will towards the defendant.
Malice:
Closely connected with the law and theory of intentional wrongdoing is the legal use of the
word malice. In a narrow and popular sense this term means ill-will, spite, or malevolence;
but its legal signification is much wider. Malice means in law wrongful intention. It
includes any intent which the law deems wrongful, and which therefore serves as a ground
of liability. Different meanings assigned to malice In English law are:
1. It may simply mean ‘an intention to inflict harm’.
2. Causing a particular kind of harm. Damaging goods, vandalism etc.
3. In murder it means there is present one of the several forms of mens rea necessary
to constitute the crime. This is also known as ‘murderous motive’.
4. It may mean improper motive. For example, wounding the feelings of the plaintiff.
5. It amounts to wrongful motive or ill will against a defence of qualified privilege in
defamation.
Relevance and Irrelevance of motives:
Intention and negligence are the two alternative formal conditions of penal liability.
Generally in law, a man’s motive is irrelevant. As a general rule no act otherwise lawful
becomes unlawful because done with a bad motive; and conversely no act otherwise
unlawful is excused or justified because of the motives of the doer, however good. The law
will judge a man by what he does, not by the reasons for which he does it.
An illustration of this irrelevance of motives is the right of a landowner to do harm to
adjoining proprietors in certain defined ways by acts done on his own land. He may
intercept the access of light to his neighbour's windows, or withdraw by means of
excavation the support which his land affords to his neighbour's house, or drain away the
water which would otherwise supply his neighbour's well. His right to do all these things
depends in no way on the motive with which he does them. The law cares nothing whether
his acts are inspired by an honest desire to improve his own property, or by a malevolent
impulse to damage that of others. He may do as he pleases with his own.'
But to this rule, there are some exceptions as well. First is criminal attempts. An attempt to
commit an indictable offence is itself a crime. Every attempt is an act done with intent to
commit the offence so attempted. The existence of this ulterior in- tent or motive is of the
essence of the attempt. The act in itself may be perfectly innocent, but is deemed criminal
by reason of the purpose with which it is done. To mix arsenic in food is in itself a perfectly
lawful act, for it may be that the mixture is designed for the poisoning of rats. But if the
purpose is to kill a human being, the act becomes by reason of this purpose the crime of
attempted murder. In such cases a rational system of law cannot avoid considering the
motive as material, for it is from the motive alone that the act derives all its mischievous
tendency, and therefore its wrongful nature. We may say that for all practical purposes
every intentional crime involves four distinct stages—Intention, Preparation, Attempt, and
Completion. The first two coupled with criminal intent are in the eyes of law completely
innocent while in the case of the latter two are considered to be criminal.
 A second exception comprises of all those cases in which a particular intent forms part of
the definition of a criminal offence. For example, breaking into houses for burglary or
making false documents for forgery etc.
In civil as opposed to criminal liability the ulterior intent is very seldom relevant. In almost
all cases the law looks to the act alone, and makes no inquiries into the motives from which
it proceeds. There are, however, certain exceptions even in the civil law. This is dependent
upon the principle that the inherent intent of an act must be injurious and be done with a
proper motive.
Negligence:
Negligence is a failure to exercise appropriate and or ethical ruled care expected to be
exercised amongst specified circumstances. It is a blameworthy form of behaviour.
Behavior of conduct is said to be negligent in two respects:
1) It is negligent in so far as it falls short of the standard of a reasonable man in the
circumstances.
2) It is negligent in regard to some person or thing.
From this we can see that a negligent person is one who has no regard which an ordinary
prudent man would have for the interest of his fellowmen, and he causes the harm not
because he desires it but because he is indifferent.
According to Salmond:
To Salmond, the essence of negligence is not inadvertence but indifference. The term
negligence has two uses, for it signifies sometimes a particular state of mind, and at other
times conduct resulting therefrom. In the first sense, it represents one of the forms charged
with penal liability, mens rea. In the latter sense, it is opposed not to wrongful but to
intentional wrong-doing. This means that Salmond puts negligence in two senses; a
subjective sense which cannot be penalized and the objective sense which is the physical
manifestation of the objective sense.
Salmond has therefore put two kinds of inadvertent acts in the category of negligence:
a) Heedlessness: It is the state of mind of one who does an act but does not advert to
the probable consequences. For example, a man driving a car at a furious speed
through a narrow crowded street through a narrow crowded street. He breaks a
positive duty because he fails to think of it.
b) Rashness: The actor adverts to the probable consequences but assumes on
insufficient ground they will not follow. For example, a man makes quick turns on a
motorcycle instead of slowing down.
c) Recklessness: This is considered negligence by Austin. It is the state of mind where
there is advertence to the probable consequences of the act, but the actor does not
 care whether they ensue or not. For example, he drinks heavily that intoxicates him
and drives (only in the case of foreign countries) and then doesn’t care when he
drives recklessly.
Elements of (civil) negligence:
A tort has been defined as a civil wrong which infringes a right in rem and is remediable by
an action for damages. Professor Winfield states that ‘tortious liability arises from the
breach of a duty primarily fixed by the law: this duty is towards persons generally and its
breach is redressible by an action for unliquidated damages.’ This means that a failure to
address someone’s right due to negligence is to be challenged in the eyes of law. Any
negligence action (civil) has to it 4 elements (these are the most common and are found in
some form in the all the legal systems of the world. But the following are the standards
form as interpreted by American courts):
1) Duty of Care: This means there is a duty to take care and there arises a duty towards
the plaintiff. The legal liability of a defendant to a plaintiff is based on the
defendant's failure to fulfil a responsibility, recognised by law, of which the plaintiff
is the intended beneficiary. For example, a duty of care is owed by an accountant in
correctly preparing a customer’s tax returns, to minimize the chance of an FBR
audit. The first step in determining the existence of a legally recognised
responsibility is the concept of an obligation or duty. In the tort of negligence the
term used is duty of care.
2) Breach of duty: In English tort law, there can be no liability in negligence unless the
claimant establishes both that they were owed a duty of care by the defendant, and
that there has been a breach of that duty. The defendant is in breach of duty towards
the claimant if their conduct fell short of the standard expected under the
circumstances. Once it is established that the defendant owed a duty to the
plaintiff/claimant, the matter of whether or not that duty was breached must be
settled. For example, the clear irresponsible of the accountant mentioned above.
3) Damages: The loss is calculated due to the negligence of a certain person. The
plaintiff has to proof in a court of law that these are the certain things upon which the
defendant did not act upon which resulted in the loss of the plaintiff which he wants
to remedy through the right given to him by law. Damages place a monetary value
on the harm done, following the principle of restitutio in integrum (Latin for
"restoration to the original condition").
4) Causation: In the English law of negligence, causation proves a direct link between
the defendant’s negligence and the claimant’s loss and damage. For these purposes,
liability in negligence is established when there is a breach of the duty of care owed
by the defendant to the claimant that causes loss and damage, and it is reasonable
that the defendant should compensate the claimant for that loss and damage.
Theories of Negligence:
Negligence is one of the controversial topics in law and jurisprudence. The field is
divided between the subjective (negligence as a state of mind) and objective
(negligence as a state of body). To the modern jurist there is simply no conflict between
the two views.
1. The Subjective Theory of Negligence: To Salmond a careless person is a person
who does not care or in other words a negligent wrongdoer causes the harm not
because he is inadvertent but because he is indifferent. His attitude towards his act
and the consequences of that act is essentially an attitude of indifference.
To Austin, on the other hand, want of advertence, which one’s duty would naturally
suggest is the fundamental or radical idea in the conception of negligence. Thus
negligence results from inadvertence or failure to apply one’s mind to the nature
and consequences of one’s wrongful act. In this sense, the negligent act is the
opposite of an intentional act.
The merit contained in the subjective theory is that in certain situations any
conclusion as to whether a man had been negligent will depend partly on his state
of mind. In criminal law a sharp distinction is drawn between intentionally causing
harm and negligently causing harm, and in deciding whether the accused is guilty
of either, one must have regard to his knowledge, aims, motives and so on. Cases
of apparent negligence may, upon examination of the party’s state of mind, turn out
to be cases of wrongful intention.
A trap door may be left unbolted in order that one’s enemy may fall through it and
so die. Poison may be left unlabelled, with intent that some one may drink it by
mistake. A ship’s captain may wilfully cast away his ship by the neglect of the
ordinary rules of good seamanship. A father who neglects to provide medicine for
his sick child may be guilty of wilful murder, rather than a mere negligence. In the
cases we cannot penalize for the crime correctly until we determine the state of
mind of the actor.
The subjective theory then has the merit of making clear the distinction between
intention and negligence. The wilful wrongdoer desires the harmful consequences.
The negligent wrongdoer does not desire the harmful consequences. The wilful
wrongdoer is liable because he desires to do the harm, the negligent wrongdoer
may be liable because he does not sufficiently desire to avoid it.
2. The Objective Theory of Negligence: According to some jurists, negligence is
not a state of mind but a particular kind of conduct. In this view, negligence is due
to failure to take reasonable precautions. According to Clark and Lindsell,
negligence consists in the omission to take such care as under the circumstances it
 is the legal duty of a person to take. According Pollock, negligence is the opposite
of diligence and no one describes diligence as a state of mind.
According to objective theory, negligence is not a subjective but an objective fact.
It is not a particular state of mind or form of mens rea at all, but a particular kind of
conduct. Negligence is a breach of the duty of taking care. To take care means
take precautions against harmful results of one’s actions. Negligence consists in
pursuing a course of conduct that an ordinary prudent man would not. To drive at
night without light is negligence because carrying light is an act of a prudent man.
To take care, therefore, is no more a mental attitude or state of mind.
Salmond criticized the objective theory on the following grounds:
i) Total identification of negligence with failure to take care is the product of
incomplete analysis.
ii) Failure to take care need not always be due to negligence. Failure to take
precautions may be accidental or wilful.
iii) By merely looking at the conduct of a man, it is not possible to assert
whether the lack of care is negligent, intentional or accidental.
iv) One can identify of the negligent act only by looking into the mental
attitude of the man that produced the conduct in question.
3. Reconciliation of the two theories: In reality, there is really no conflict between
the two views. Law still has to judge the action not the intention. In this way
negligence has two meanings.
Contrasted to intention which is a state of mind negligence is also state of mind. As
already seen, we can distinguish between intentional and negligent wrongdoing
only by looking into the mind of the doer, for externally and objectively the closes
of offences are indistinguishable.
Negligence can be contrasted to inevitable accident. Negligence is a particular type
of conduct. Here the state of mind is not relevant. The question is whether the
conduct of the doer was that of a reasonable man.