This explanation contains an important element of the truth, but it is inadequate. For in the first place, as has been already pointed out, all negligence is not inadvertent. There is such a thing as wilful or advertent negligence, in which the wrongdoer knows perfectly well the true nature, circumstances, and probable consequences of his act. He foresees those consequences, and yet does not intend them, and therefore cannot be charged with wilful wrongdoing in respect of them. His mental attitude with regard to them is not intention, but a genuine form of negligence, of which the theory of inadvertence can give no explanation.
In the second place, all inadvertence is not negligence. A failure to appreciate the nature of one’s act, and to foresee its consequences, is not in itself culpable. It is no ground of responsibility, unless it is due to carelessness in the sense of undue indifference. He who is ignorant or forgetful, notwithstanding a genuine desire to attain knowledge or remembrance, is not negligent. The signalman who sleeps at his post is negligent, not because he falls asleep, but because he is not sufficiently anxious to remain awake. If his sleep is the unavoidable result of illness or excessive labour, he is free from blame. The essence of negligence, therefore, is not inadvertence—which may or may not be due to carelessness—but carelessness—which may or may not result in inadvertence.
It may be suggested in defence of the theory of inadvertence that there are in reality three forms of the mens rea, and not two only: namely, (1) intention, when the consequences are foreseen and intended, (2) recklessness, when they are foreseen but not intended, and (3) negligence, when they are neither foreseen nor intended. The law, however, rightly classes the second and third of these together under the head of negligence, for they are identical in their essential nature, each of them being blameworthy only so far as it is the outcome of carelessness.
We have now to consider another explanation which may be termed the objective theory of negligence. It is held by some that negligence is not a subjective, but an objective fact. It is not a particular state of mind or form of the mens rea at all, but a particular kind of conduct. It is a breach of the duty of taking care, and to take care means to take precautions against the harmful results of one’s actions, and to refrain from unreasonably dangerous kinds of conduct.[[379]] To drive at night without lights is negligence, because to carry lights is a precaution taken by all reasonable and prudent men for the avoidance of accidents. To take care, therefore, is no more a mental attitude or state of mind than to take cold is. This, however, is not a correct analysis. Carelessness may result in a failure to take necessary precautions, or to refrain from dangerous activities, but it is not the same thing, just as it may result in inadvertence but is not the same thing. The neglect of needful precautions or the doing of unreasonably dangerous acts is not necessarily wrongful at all, for it may be due to inevitable mistake or accident. And on the other hand, even when it is wrongful, it may be wilful instead of negligent. 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 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 of mere negligence. In none of these cases, nor indeed in any others, can we distinguish between intentional and negligent wrongdoing, save by looking into the mind of the offender, and observing his subjective attitude towards his act and its consequences. Externally and objectively, the two classes of offences are indistinguishable. Negligence is the opposite of wrongful intention, and since the latter is a subjective fact the former must be such also.
SUMMARY.
The nature of Intention:
Foresight accompanied by desire.
Intention distinguished from expectation.
Intended consequences not always expected.
Expected consequences not always intended.