CARELESSNESS, INDIFFERENCE AND RECKLESSNESS1
| DOI | http://doi.org/10.1111/j.1468-2230.1961.tb02189.x |
| Published date | 01 September 1961 |
| Author | Alan R. White |
| Date | 01 September 1961 |
CARELESSNESS, INDIFFERENCE AND
RECKLESSNESS
THE law commonly distinguishes
“
negligence
”
as the name of an
independent tort from
“
negligence
”
as referring to the manner in
which a man may behave. Although the existence of such an inde-
pendent tort is possibly due to the seductiveness of the Objective
Theory of negligence considered below and although
it
gives rise to
the logical absurdity that a man who deliberately causes harm may
be guilty of negligence,2 technical definitions may perhaps plead
exemption from the rules of ordinary use. When, however, juris-
prudents suggest analyses of
‘(
negligence
”
(and of
“
carelessness
”
and
“
recklessness
”)
outside this independent tort, they are open to
objection from considerations of logic and use.
(a)
CARELESSNESS
AND
INDIFFERENCE
Salmond subsumed negligence, that is culpable carelessness, under
men8 rea
because he defined the careless man as
“
he who does not
care,” while Pollock argued that carelessness is a
“
type
of
con-
duct,”
e.g.,
“
a failure to take precautions against harm.” More
recently, Glanville Williams has tried to reconcile these views by
suggesting that there are two senses of
‘‘
negligence.” The con-
ceptual facts, however, are otherwise.
A
“
careless
”
man is one who does not take care; a man who
does not care is called
“
indifferent.” Indifference is an attitude
which one may take
or
show to something; but a failure to take
care includes a failure to pay attention to certain risks and insur-
ances against them to which we ought to attend. Often the failure
of attention of
“
carelessness
”
may be due to, and
is
evidence
of,
the not caring of
‘‘
indifference
”;
but the two are not equivalent.
An
attitude may, perhaps, be described as a
‘‘
state
of
min.d
”
and, thus, as
a
form of
mens rea.
A
man who is indifferent need
not be doing
or
failing to do anything, mental
or
physical. The
kind of explanation that indifference provides for an agent’s action
or
lack of action is in terms of a temporary mood
or
of his general
character, An attitude, such as indifference, can be
‘‘
felt,” but it
cannot be
‘‘
used
”
or
“
exercised.” To attribute carelessness, on
the other hand, is not. to impute an attitude
or
state of mind.
A
1
I
am
indebted
to
my
legal colleaguee at
Hull
and to
Prof.
H.
L.
A.
Hart
of
Oxford
for
criticisms
of
an
earlier draft.
2
Charlesworth,
Negligence,
1966,
pp.
8-9.
__
3
Torts,
12th
ed.,
$3
119
et
seq.
4
Torts,
14th
ed.,
Chap.
11.
5
Salmond
on
Jul.ispfudence,
11th
ed.,
$9
149
et
seq.;
cf.
nas
and
Hughes,
Jurisprudence,
1st
ed.,
p.
913.
592
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