RECKLESSNESS, NEGLIGENCE, INDIFFERENCE, AND AWARENESS
| Published date | 01 July 1980 |
| DOI | http://doi.org/10.1111/j.1468-2230.1980.tb01599.x |
| Date | 01 July 1980 |
RECKLESSNESS, NEGLIGENCEy INDIFFERENCEy
AND AWARENESS
MY
main purpose
in
this article will be to investigate the connection
between recklessness and negligence. In particular,
I
shall be con-
cerned with two issues:
(1)
the relation of
“
awareness of risk
”
to
negligence and recklessness.
Does
the element
of
awareness of
risk
distinguish between reckless and negligent conduct?
(2)
the relation
of
“
indifference to realised risks
”
to recklessness.
The relevance of these two questions to the distinction between
recklessness and negligence, the subject of earlier discussion in this
journal among Professors
P.
J.
Fitzgerald, Alan White and Glanville
Williams, recently has been revived by Professor Winslade.’
I
shall
argue that
“
awareness of risk
”
does provide
a
distinction between
recklessness and negligence and that
“
indifference to realised risk,”
while not adequate as
a
definition, does provide an explanation for
reckless conduct in the sense that it shows
a
connection between the
various cases
of
recklessness.
A
preferable definition
of
recklessness
is in terms
of
“
consciously disregarding risks.” In analysing this
definition,
I
distinguish between
six
degrees of recklessness and
argue that there are also mixed modes of culpability where the agent
is both reckless and negligent. Finally,
I
argue that the opinions in
Hyam
v.
D.P.P.2
have the effect of obscuring recklessness
as
a
mode
of
culpability distinct from intention.
In the background are two larger questions:
(1)
what is the rela-
tion between ordinary language and legal language?
(2)
what is the
justification for the distinctions between the various modes of
culpability-intention, recklessness and negligence?
I
shall defer
consideration of the second question until after the arguments are
presented for the distinctions between intention, recklessness and
negligence.
ORDINARY LANGUAGE AND LEGAL LANGUAGE
The question to what extent the legal meaning of concepts should
correspond to ordinary use is, of course, too large to consider fully in
this article. However, some attention to the question of whether the
law should develop technical concepts of recklessness and negligence
is
necessary. This was
a
subject
of
debate between Professors White
and Williams in the articles cited above, White argued that legal
analysis typically relies upon an analysis of the ordinary use and
1
See William Winslade,
‘‘
Brady
on
Recklessness
”
(1972)
33
Analysis
31;
James
B.
Brady,
“
Indifference and Voluntariness
”
(1972) 32
Analysis
98;
Winslade,
‘‘
Recklessness
’’
(1970)
30
Analysis
135;
Alan White,
“
Carelessness and Reckless-
ness-A Rejoinder
”
(1962) 25
M.L.R.
437;
P.
J.
Fitzger$d. Glanville Williams,
“
Carelessness, !FdifPerence and Recklessness:
Two
Replies
(1962) 25
M.L.R.
49
and
55;
White, Carelessness. Indifference and Recklessness
”
(1961) 24
M.L.R.
592.
a
[I9741
2
All
E.R.
41.
381
3
82
THE MODERN LAW REVIEW
[Vol.
43
that mistakes arise from an incorrect analysis of that ordinary use.
Williams argued that although it is important in some cases for legal
language not to stray from ordinary language,s there are good
reasons for the law to develop technical concepts. The most
important of these seems to be t,hat the law needs to provide sharper
distinctions than those found in ordinary language. Specifically,
Williams proposed that ordinary language be avoided and a technical
term developed for
"
recklessness."
There are several aspects to the debate concerning the cor-
respondence of legal language to ordinary use. At one extreme is the
view that legal terms should correspond exactly with ordinary terms.
If
this is the case, judges need not provide interpretations of ordinary
words to the jury. For example in the recent Court of Appeal case,
R.
v.
Cato,K
Lord Widgery
C.J.
considering the sufficiency of the
instructions, stated that
"
After all, recklessness is
a
perfectly simple
English word. Its meaning is well known and it is in common use.
There is
a
limit to the extent to which the judge in the summing up
is expected to teach the jury the use of ordinary English words.''
'
This is, of course, inadequate and it is all the more surprising since
the trial judge in
Cato
equated recklessness with gross negligence,
t,hereby obscuring the distinction between subjective and objective
1iability.l Even if legal terms are based on ordinary use, an explana-
tion of that ordinary use may be necessary. After all, popular usage,
as distinguished from the ordinary use of
a
word may be loose.8
If
we reject the view that legal terms should correspond exactly
with ordinary terms, should we conclude that the law ought to shun
ordinary terms and instead use technical language? This will not
solve the problem, for even
if
a
technical term
is
invented it will have
to be explained in terms of ordinary use since we cannot explain
technical language by technical language
ad
infiniturn.
Williams's
arguments for the substitution
of
technical language for ordinary
language must be viewed with this last point in mind. Williams has
argued that, philosophers' opinions notwithstanding, ordinary
language has no
"
intrinsic validity
"
superior to technical language.
J
Williams
is
somewhat vague as
to
why this
is
important. In the M.L.R. article
he states that the law should
try
to
talk the language of laymen in order
to
make
it
as intelligible as possible
to
laymen who are governed by
it,
up.
cir.
note
1,
p.
55.
In
The Mental Element
in
Crime
(196.5) he
states
that where
a
concept, such
as
intention,
is
given an extraordinary meaning
the
law is discredited (at p.
87).
At
Arst
glance,
there appear
to
be
two reasons which argue for the correspondence of
legal meaning
to
ordinary meaning: the necessity for
''
fair warning
"
and
for
jury
instruction.
4
The terms he
suggests
are
"
conchneg
"
or
''
conscious negligence
'*
(1962) 25
M.L.R. 56;
The Mental Element
in
Crime
(1965) at p.
55.
6
[1976] 1 W.L.R. 110.
6
Op.
cit.
p.
119.
1
Cf.
the comment on
Cam,
"
The legal meaning of recklessness is. unhappily, not
perfectly simple, but for the purpose
of
gross
negligence manslaughter
it
does n$
need to
be
mentioned at all." Celia Wells,
"
Perfectly Simple English Manslaughter
(1976) 39 M.L.R. 474,471.
8
For the distinction between
"
use
"
and
"
usage
''
see
Gilbert
Ryle,
''
Ordinary
Language
"
(1953) 62
The Philosophical Review
167, 114.
9
Williams,
op.
cir.
note
1
at p.
55.
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