Law
Elements of Negligence
The elements of negligence are the key components that must be proven in a negligence case. These elements typically include duty of care, breach of duty, causation, and damages. Duty of care refers to the legal obligation to act reasonably to avoid causing harm to others, while breach of duty occurs when this obligation is not met. Causation establishes the link between the breach of duty and the resulting harm, and damages refer to the actual harm suffered.
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2 Negligence: basic elements2.1 Duty of care2.1.1 Negligence – origins and character1 The modern starting point is Lord Atkin’s judgment inDonoghue v Stevenson (1932), which established negligence as a separate tort – though its origins were in actions on the case.2 A new approach was needed, as no other action was available.3 The judgment contained five key elements.Negligence is a separate tort.Lack of privity of contract is irrelevant to mounting an action.Negligence is proved as a result of satisfying a three-part test:i) there must be a duty of care owed by defendant to claimant;ii) the duty is breached by the defendant falling below the appropriate standard of care;iii) the defendant causes damage to the claimant that is not too remote a consequence of the breach.
eBook - ePub- Janice Denoncourt(Author)
- 2013(Publication Date)
- Routledge(Publisher)
8 Consumer Law and the Tort of NegligenceIntroductionUnder the tort of negligence everyone, including business people, owes a duty to other people in society not to act unreasonably and thereby cause them harm. If a person, or a legal person such as a company, causes harm to another by negligence, the injured person (the claimant) can recover compensation from the one who caused the harm (the defendant). A tort is a civil wrong, which is not a breach of contract. Liability in tort is not undertaken voluntarily. It is imposed by the courts, which have determined that certain types of behaviour will amount to a civil wrong, giving rise to tortious liability. Liability is based on fault, for example, dangerous driving causing an accident with another vehicle. The driver who drove dangerously without regard for the safety of others on the road is at fault and is therefore liable.A classic definition of negligence states: ‘negligence is the omission to do something which a reasonable man … would do, or doing something which a prudent and reasonable man … would not do.’ In a legal action for negligence the claimant must prove three things:- Duty of care;
- Breach of duty;
- Damage caused by the breach.
First, in relation to the duty of care, the claimant must prove that the defendant owed him or her a duty of care. Generally, a duty of care is owed to anyone who one can reasonably foresee may be injured by one’s act or omission. This was established in the most famous case in English law: the ‘snail in the ginger-beer bottle case’,Donoghue v Stevenson (1932).Second, in relation to breach of duty, the standard of care required by law is one of reasonableness. If the defendant has acted reasonably, there is no breach of duty. The standard of care varies according to the danger. The greater the risk of more serious injury, the higher the standard of care owed, and thus the more that has to be done in order to have acted reasonably:Latimer v AECandHaley v LEB
eBook - ePub- Timon Hughes-Davies, Nathan Tamblyn(Authors)
- 2019(Publication Date)
- Routledge(Publisher)
Chapter 3Negligence: Breach
3.1 Introduction
Breach is the second element of the tort of negligence. The claimant has to show that the defendant not only owed him or her a duty of care, but also that the defendant breached the duty.Figure 3.1 The Elements of Negligence: breachThe law adopts an objective standard: if the defendant did something that a reasonable person would not have done, or did not do something which a reasonable person would have done in the circumstances, then there will usually be a breach of the duty. Why the defendant breached the duty is less important. It does not matter that the defendant was tired, or distracted, or inexperienced.1 The well-meaning, but incompetent, defendant is just as liable as the lazy or reckless defendant.1 Nettleship v Weston [1971] 2 QB 691.The law does, however, take the circumstances into account. Obviously, it would be unreasonable for a driver to go through a red light in ordinary circumstances. But if the person is driving an ambulance, then the same act may be reasonable.____________As you read
- Understand the standard of care and what is meant by breach.
- Identify the duty of care as applied to children.
- Understand the care to be taken when vulnerable people and children may be involved.
- Understand the test applied in professional negligence.
3.2 Reasonable care
The duty of care is a duty to take reasonable care not to cause damage to the claimant. As a nineteenth-century judge put it, ‘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’.2
eBook - ePub- Graham Stephenson, Graham Stephenson(Authors)
- 2012(Publication Date)
- Routledge-Cavendish(Publisher)
CHAPTER 3
BREACH OF DUTY
INTRODUCTION
The second element which a claimant must establish in a negligence action is that the defendant was in breach of duty. It is often the most difficult element to satisfy and in the majority of cases, made up primarily of road traffic accidents and work related injuries, it is the singularly most contentious issue. In these types of cases, the duty issue is rarely a problem, as the case will normally fall within one of the established categories of duty situation. Most of the trial judge's deliberations will be taken up with this breach issue. Even if the claimant can show that the situation is one in which a notional duty is owed to her and in addition that the defendant's conduct caused her harm, she will fail unless she can establish on the balance of probabilities that the defendant's conduct fell below the standard set by the law. There are two issues involved here:(1) what is the standard of care required of the defendant in law; (2) has this defendant fallen below the standard demanded of him?This latter question is often described as being one of fact, but this may disguise the fact that a judge in deciding whether the defendant's conduct had the character of negligence, may be making inferences from what are called the primary facts. For example, in a road accident the judge is required to find the facts surrounding the incident from the witnesses. What were the weather conditions, was the road well lit if the accident took place at night, what was the speed of the defendant's vehicle? These are the primary facts, but, in deciding from these as to whether the defendant's driving amounted to fault, the judge will often be making a value judgment. In a sense, such a decision is properly regarded as one of mixed fact and law. In nearly all civil trials these days, the judge sits without a jury and is therefore the arbiter of both fact and law. This makes it extremely difficult at times to ascertain whether the judge is dealing with a matter of law or fact, as the distinction becomes blurred. This can be crucial when it comes to the issue of an appeal. Rarely will the appeal courts interfere with the trial judge's view of the facts on the basis that it is her task to evaluate the strength of the evidence by seeing the witnesses in the court room being cross-examined. However, inferences from the primary facts may well be treated almost like statements about the law and be challengeable on appeal. There is also an important point about the precedent value of decisions made on the breach issue. As the actual decision may depend on the facts, the value of any particular decision is likely to be minimal. The endless citing of cases decided on the breach point is not to be encouraged, rather the cases that follow may be seen as containing guiding factors only. A further word of warning is needed: the courts often use the word duty in the context of breach when they are concerned whether a defendant was required by the appropriate standard of care to do a specific thing, for example, a judge might suggest that the defendant was under a duty to sound his car horn when approaching a dangerous junction. In this context, the word is being used to signify that this is something that the reasonable person would have done in these circumstances.
eBook - ePub- Gary Slapper, David Kelly(Authors)
- 2009(Publication Date)
- Routledge-Cavendish(Publisher)
The tort of negligence7.1 Introduction
Negligence is a tort. It is, however, necessary to define what is meant by ‘a tort’ before considering the essentials of negligence. A tort is a wrongful act against an individual or body corporate or his, her or its property, which gives rise to a civil claim (usually for damages, although other remedies are available). Principally, liability is based on fault, although there are exceptions to this such as breach of statutory duty, vicarious liability and the tort established in Rylands v Fletcher (1865). The motive of the defendant in committing the tort is generally irrelevant.Negligence is the most important of all the torts, not only because an understanding of it is vital to the comprehension of other torts, such as employers’ and occupiers’ liability, but also because it is the one tort which is constantly developing in the light of social and economic change. This can be seen by reference to product liability, professional negligence and economic loss, all of which were originally only compensated if there was in existence a valid contract; in other words, ‘no contract, no claim’. After a period of continual development in the scope and application of this tort, there are signs that the courts are beginning to be more cautious. They are aware of the economic implications for the public and private sectors if they continue to extend the scope of actions in negligence. Whether this should be an issue for the courts is always open to debate, but if the courts are to be pragmatic, then they may have no choice but to be restrained in the current economic climate.A professional person, such as an auditor, accountant, lawyer or doctor, may find themself in a non-contractual relationship with another who will have little choice but to pursue a claim in negligence if they are injured as a result of professional malpractice. Indeed, in order to cover potential claims in negligence and contract, many professional bodies require, as part of membership approval and the issue of practising certificates, that their members take out insurance cover to meet the cost of potential claims (usually, a minimum amount of cover is stipulated for an individual claim). This is known as professional indemnity insurance.
1 Negligence – Duty of Care Generally and Economic Loss INTRODUCTIONPlease note the first four chapters are all concerned primarily with the tort of common law negligence. They are divided into chapters for the purpose of clarity with different areas emphasised. However as you will know by now the concepts of duty, breach, causation and the general defences all form key components of forming liability in the law of negligence. Therefore the coverage of the answers will, to a greater or lesser degree, be duplicated in many of the first 14 questions in this book.Questions solely on duty of care, however, usually take the form of an essay, typically on the test for imposing a duty. It is important therefore that you are aware of the stages of its development. It is also vital to be thoroughly familiar with situations in which limits are placed on whether a duty of care will exist. This chapter will include coverage of such limitations that are found within the area of negligent misstatement and economic loss, through the form of three essay questions and two problem questions. The second chapter will consider limits posed on the existence of a duty of care when considering recovery for psychiatric injury, the liability of the emergency services as well as the policy implications of the ‘compensation culture’ phenomena.
eBook - ePub- Jane Lynch, Senthill Nachimuthu(Authors)
- 2018(Publication Date)
- CRC Press(Publisher)
Negligence is also referred to as a breach of the duty of care. A breakdown of communication either through system failures or poor records or in some other way may result in injury to the patient. This may give rise to an action in negligence. If a patient is injured as a result of the negligence of a health professional then the patient may sue for financial compensation. (Compensation is also referred to as ‘damages’.)Negligence occurs when the standard of care falls below the reasonable standard expected.A person who brings a claim for negligence (the person who sues) is called the ‘claimant’ and the person or organisation being sued is called the ‘defendant’. The legal process for bringing a claim is often referred to as ‘litigation’.Components of a Legal Claim for Compensation
Claims for compensations can include:- ➤ patient falling out of bed
- ➤ pressure sores developing
- ➤ wrong dose of medicine, or at the wrong time, or wrong site
- ➤ wrong limb being amputated
- ➤ treatment given to the wrong patient
- ➤ delay in birth of a baby
- ➤ patient dies as a result of a mistake.
What does the claimant have to show?
Task Consider this scenario. Tom, a keen gardener, also makes homebrew in his garden shed. Having enjoyed a glass of his homebrew he invites his next-door neighbor, Bill, into his garden shed for a tipple of his homebrew.In order for a patient to succeed in suing for compensation the onus is upon them to establish the legal principles. They have to establish all of the following:Bill has a better idea, ‘Why don’t we go to the pub instead?’ Off they go to the pub and they order half a pint of beer each. Tom takes a sip of his beer and says, ‘I don’t feel very well.’ Bill says, ‘You look terrible; I think you ought to go to the hospital.’They arrive at the accident and emergency department and Tom is triaged by the nurse. Tom tells the nurse, ‘I had a tipple of my homebrew and then we went to the pub.’ The nurse tells Tom, ‘You are drunk, go home and sleep it off, if you are not better by the morning go and see your GP.’By the morning Tom was dead. Tom had inadvertently drunk paraquat in his garden shed. An assumption had been made by the triage nurse that Tom was drunk. Do you think Tom’s family would succeed in claiming compensation? We will review the answer at the end of the chapter.
