Law
Negligence
Negligence refers to the failure to exercise the level of care that a reasonable person would in similar circumstances, resulting in harm or injury to another party. In legal terms, negligence involves a breach of duty of care owed to others, and it forms the basis for many personal injury claims and lawsuits.
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11 Key excerpts on "Negligence"
eBook - ePubBusiness Law
A Straightforward Guide
- (Author)
- 2014(Publication Date)
- Straightforward Publishing Digital(Publisher)
Ch.2 BUSINESS LAW-Negligence AND DUTY OF CARE-GENERAL In everyday parlance, Negligence means a failure to pay attention to what ought to be done or to take the required level of care. Whereas its everyday usage implies a state of mind, the tort of Negligence is concerned with the link between the defendant’s behaviour and the risk that should have been foreseen. Key definition of Negligence Negligence, as a tort, is generally defined as a breach of a duty of care. This duty of care is owed by one person to another. When damage is caused to a person, who then becomes a claimant, the type of damage has to be specified and also defined as actionable. The loss or damage can arise in a number of ways, arising through misfeasance or nonfeasance and can consist of personal injury, damage to property or can be pure economic loss. It can also consist of psychiatric damage. The duty of care-establishment of a duty Certain relationships between people, recognised by the law and developed by the law, give rise to a legal duty of care. The following are examples: • Employer-employee • Manufacturer to consumer • Doctor-patient • Solicitor-client Essentially, carelessness by one party which affects another gives rise, or can give rise, to legal action by the injured party. It is up to the claimant to prove that damage has been caused and that the case falls into a specific situation that gives rise to a duty of care. The neighbour principle Donoghue v Stevenson 1932 Outside of the categories of established duty, a duty of care will be determined on the basis of individual circumstances. One of the most prominent cases relating to Tort and Negligence is that of Donoghue v Stevenson (HL 1932) In this case, Mrs Donoghue and friend visited a café and Mrs Donoghue’s friend bought her a bottle of ginger beer. The bottle was made of opaque glass. When filling Mrs Donoghue’s glass the remains of a decomposed a snail floated out of the bottle
eBook - ePub- Kenny Chin(Author)
- 2014(Publication Date)
- Routledge-Cavendish(Publisher)
Injunction is an equitable remedy which will be appropriate when damages are not adequate in matters such as threatened or repeated trespass and nuisance. There are other remedies including abatement and forcible ejection. The former is available in nuisance and the latter for trespass to land. Such defences will be discussed in the sections regarding the relevant torts.NegligenceNegligence in a general sense could mean carelessness causing personal injury, damage to property or financial losses. Contractual obligations have been well established. Students will note that most contract law cases date back to the 19th century. The duty of care in Negligence is a relatively new concept. Since the classic case of Donoghue v Stevenson (1932), the courts recognise that citizens living amongst each other have a legal duty to take care when they go about their business and to avoid causing harm to others. There is a standard of care we should take and if we fall foul of this generally accepted standard (that is, breach of the duty) and cause damage to another then we are liable to pay compensation. This concept of duty of care is not very different from that of obligation arising from an agreement. Maybe we can say that the courts have ‘stolen’ the idea in contract to be used in tort.As mentioned in earlier sections, tort requires fault and harm. The fault elements in Negligence are the duty of care and a breach of that duty. A successful claimant in Negligence must therefore prove three things:(a) that the defendant owes him a duty of care; (b) that the defendant has breached that duty (that is, fallen foul of the standard of care); (c) that he has suffered damage caused by the breach and are not too remote. Duty of careBefore the case of Donoghue v Stevenson (1932), it was difficult to claim compensation in a civil court without relying on a contract or on other established tort like nuisance and trespass. Mrs Donoghue’s friend bought her a bottle of ginger beer and after she drank it she discovered the remnants of a decomposing snail in the bottle. She was ill afterwards. Mrs Donoghue had not bought the beer, so she was not a party to the contract and, therefore, could not sue the manufacturer under contract. She sued for Negligence. Lord Atkins in the House of Lords delivered his ratio
eBook - ePubTort Law in Bangladesh
Applications and Challenges
- Sakif Alam(Author)
- 2021(Publication Date)
- Routledge India(Publisher)
vehicular accidents, workplace injuries, medical malpractice, and the like) by focusing on the concept of Negligence. 4 In little more than a century, Negligence has transformed, and became the most important basis of, tort liability. 5 At its most basic form, Negligence is conduct that falls below the standard of care formulated by law to protect others from unreasonable risks of harm. In order to succeed in a claim for Negligence, the plaintiff must prove, firstly, a negligent act ; secondly, the injury that he has suffered; and thirdly, the injury must have been caused by the defendant’s negligent conduct. 6 As in, while the objective of tort law is to compensate one for the injury suffered (in other words, placing the party in the position he would have been in had the tort not been committed), if there was no negligent act, or alternatively, if there was, but the misconduct did not cause the injury, or if the damage is too remote, then liability cannot be imposed on anyone. 7 For example, while walking on a sidewalk, if you trip, fall, and fracture your left-wrist, nobody can be held liable for your injury, as it was not caused by another’s negligent act. Nonetheless, what if a passenger on a rickshaw saw your fall, became momentarily inattentive, fell off the rickshaw, and scraped her elbow
eBook - ePub- Julian Bailey(Author)
- 2016(Publication Date)
- Informa Law from Routledge(Publisher)
(ii) Duty to third parties- Engineer
- (i) Duty to client
- (ii) Duty to third parties
- Supplier
- (i) Physical harm, injury or damage to "other property"
- (ii) Pure economic loss
- Quantity surveyor
- Property surveyor
- (i) Generally
- (ii) Scope of duty
- (iii) Damages
- Public authority
- (i) Introduction
- (ii) Physical harm or damage to "other property"
- (iii) Pure economic loss
- (iv) Liability for breach of statutory duty
- (v) Liability for conduct of independent contractors
- Expert
- (i) Expert determination
- (ii) Expert witness
- Arbitrators and adjudicators
- Trade association
- Concurrent duties in contract and tort
- Contributory Negligence
- (i) Generally
- (ii) Defence to an action in contract?
- (iii) Fault and causation
- (iv) Reduction in damages
- (v) Contractual defences and limitations
What is Negligence?
10.01 Negligence refers to an obligation in tort, imposed by law, upon a person to conduct himself with reasonable care so as to ensure that another person or a class of persons will not suffer a particular type of injury, harm or loss. The obligation is founded on an impersonal standard of how a reasonable person should act in particular circumstances, where a particular type of injury, harm or loss is reasonably foreseeable.1 An obligation to act with reasonable care may apply in respect of the action or inaction of a person, including the making of a representation or the failure to make a representation. A duty of care requires a person to act with reasonable care (or reasonable skill and care), as opposed to requiring that a person ensures that another does not come to harm, or suffer a particular type of loss or damage.210.02 Central to the concept of Negligence is the notion of fault based upon careless or unreasonable behaviour. Harm, loss or damage that occurs through no-one’s fault, as a “piece of bad luck”,3
eBook - PDF- Helen Caulfield(Author)
- 2011(Publication Date)
- Wiley-Blackwell(Publisher)
Where the health outcome is different from what had been expected, this does not mean that a Negligence action will be successful. The law will not deal with genuine accidents in the context of a Negligence claim. The key issue in a case of negli-gence is that another person can be shown to be at fault for the outcome. Where there is no one to blame for the outcome, there can be no Negligence. Summary • There is no Act of Parliament that defines Negligence. • A set of principles have been decided by case law that must succeed for a claim in Negligence to succeed. Concepts: Negligence 113 • Each principle has to be proved before a claim in Negligence will succeed. • Negligence has been criticised for the time, cost and remedies that are involved. • Genuine accidents should not be confused with Negligence. • The key issue in Negligence is that a person or a system is at fault. The first principle: duty of care This first principle of Negligence is that a duty of care must be owed by one person to another. This is based on the ideal that a duty to take care is owed by one person to another where there is a connection that can be described as a neighbour principle. If this duty does not exist, there cannot be a claim in Negligence. This principle was based on the case of Donoghue v. Stephenson in 1932, set out in more detail in Case Study 8.1. In health care the duty of care is usually straightforward and not an issue of contention. A person receiving treatment from a doctor or nurse will be owed a duty of care by that professional. If the person has treatment using equipment which is faulty, the manufacturer of that equipment will owe a duty of care to the patient. How far the duty of care can be extended is an issue that has been tested in the courts.
eBook - ePub- Elaine Pritchard, Richard Reeves(Authors)
- 2013(Publication Date)
- Routledge(Publisher)
However, it should be noted that claims of Negligence are the most commonly arising of all the torts for it covers a host of illnesses which may arise through working conditions, accidental injury situations or harm which may arise as a result of medical treatment. All of these areas could well be encompassed within a company’s quality or combined quality/safety procedures. In addition to which, Negligence also affords a degree of consumer protection, which is an area with which all quality assurance management systems should be concerned. An additional point to be borne in mind is that, it is not only negligent acts which need to be avoided. People involved with giving professional advice, such as lawyers, accountants and surveyors, need also to be aware of the potential liability they face for any negligent statements that they may make, or advice they may give. As with all civil law, the burden of proof is on the plaintiff. The plaintiff must prove his case on the balance of probabilities. In cases of Negligence the plaintiff has to be able to prove the other party was negligent. This is known as fault liability. To be successful in a Negligence action, the plaintiff must show the following. 1 that the defendant owed the plaintiff a duty of care; 2 there was a breach of that duty of care; and 3 loss or injury arose directly as a result of that breach of duty of care. The concept of a duty of care, was derived from case law rather, than from an Act of Parliament. Similarly exactly what constitutes a breach of that duty and whether or not injury arose directly because of the breach is also governed by case law. As a result the following pages contain an explanation of these terms together with the relevant cases from which they were derived, refined or put to the test. Duty of Care Since the case of Donoghue v. Stevenson (1932) a manufacturer can be sued in the tort of Negligence for harm caused by a defect in their product
eBook - ePub- Andrew Mitchell(Author)
- 2008(Publication Date)
- Routledge-Cavendish(Publisher)
not require a contractual relationship between the parties, though often such claims arise where a contract exists (for example, in accident at work claims the employee will be contracted to the employer).Therefore, the tort of Negligence is the law concerned with a wrong that one party has committed and which thereby causes another party or parties to suffer harm, loss or injury. Negligence law – which is very largely judge-made – considers whether it is ‘fair’ or appropriate for loss to be shifted from the victim to the person who has caused harm. This is expressed by an award of damages (in the form of monetary compensation) paid by the person who caused the harm (defendant) to the person who has been injured (claimant). Since much of the tort of Negligence is underpinned by insurance, with compensation claims made against insured parties such as businesses, some have argued that the law of tort fails in its aim of loss-shifting. Instead, the argument goes, it leads to the practical consequence of loss-spreading, and this undermines the principle of ‘fault’ that lies at the heart of Negligence law. Why can this point be made? It is because those who have contributed to an insurance pool are not those who are at fault.DISTINGUISHING TORTS FROM OTHER LEGAL WRONGS
Tort law and criminal law
The comments in Table 13.1 below build on your knowledge of the criminal law (see Chapter 12 ) by providing a basic set of comparisons between tort law and criminal law.The law of tort has been developed by the common law and has relied largely on judicial creativity for its growth. There are relatively few Acts of Parliament in the law of tort, though a notable example of relevance here is the Law Reform (Contributory Negligence) Act 1945. By contrast, while criminal law has also developed through common law, many more Acts of Parliament have been passed in that area of law. A number of criminal law statutes are mentioned in Chapter 12 , though the most significant for your studies are the Offences Against the Person Act 1861 and the Criminal Justice Act 1988
eBook - ePub- Chris Turner(Author)
- 2013(Publication Date)
- Taylor & Francis(Publisher)
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 - PDF- Peter Cane, James Goudkamp(Authors)
- 2018(Publication Date)
- Cambridge University Press(Publisher)
This test was satisfied in a case in which a burglar fell from a van and was injured while fleeing from the scene of the crime. 79 77 Patel v. Mirza [2016] AC 467. For discussion, see J. Goudkamp, ‘The End of an Era? Illegality in Private Law in the Supreme Court’ (2017) 133 Law Quarterly Review 14. 78 Developed in Gray v. Thames Trains Ltd [2009] 1 AC 1339. 79 Joyce v. O’Brien [2014] 1 WLR 70. 3 The Scope of the Tort of Negligence 3.1 The Nature of the Duty of Care The concept of negligent conduct, which was discussed in Chapter 2, together with the notions of causation and remoteness of damage (which are discussed in Chapter 5), may be said to constitute the idea of fault as embodied in the tort of Negligence. But not all faulty conduct in this sense gives rise to legal liability. The tort of Negligence, it is sometimes said, cannot be committed ‘in the air’. 1 A person will be liable for damage that is caused by negligent conduct only if that person owed the claimant a duty to take care. In the famous case of Donoghue v. Stevenson, 2 Lord Atkin enunciated the equally famous ‘neighbour principle’ according to which a duty of care is owed to persons whom you ought reasonably to foresee as likely to be injured if you do not take reasonable care. On the basis of that principle, it was, for many years, said that the test of duty of care was foreseeability.
eBook - PDF- Jonathan Morgan(Author)
- 2022(Publication Date)
- Hart Publishing(Publisher)
3 That we owe duties to our ‘neighbours’ – those we can foresee may be harmed by what we do 4 – is not on this view a gratuitous flourish of Christian ethics nor a naïvely simple definition, hopelessly too broad. Rather, Weinrib claims that the ‘Atkinian’ duty of care is required by the ‘normative unit’ of careless fault. To act negligently with respect to some person or some kind of damage, it must have been foreseeable that they could suffer (and suffer such damage) from the conduct in question. One can only be negligent for failing to avoid that which one could have foreseen. Thus a duty can arise only where the damage was fore- seeable. This underlines the ‘relational’ nature of Negligence – an invasion of this particular claimant’s rights by the defendant, not ‘Negligence in the air’. Such arguments (considered further below) reject the dominant modern approach. The duty concept is more typically viewed as a ‘control device’ which the courts use to limit the scope of liability. 5 Such a ‘device’ is needed because the pull of the Negligence principle (‘pay for foreseeable harm you carelessly 134 GREAT DEBATES IN TORT LAW 6 T Weir, ‘The Staggering March of Negligence’ in P Cane and J Stapleton (eds), The Law of Obligations: Essays in Celebration of John Fleming (Oxford, Oxford University Press, 1998) 98–99, 137–38. 7 D Howarth, A Textbook on Tort (London, Butterworths, 1995) chs 2 and 5. 8 Le Lievre v Gould [1893] 1 QB 491, 497 (Lord Esher MR). 9 FH Lawson, ‘Duty of Care in Negligence: A Comparative Study’ (1947) 22 Tulane LR 111. 10 Hedley Byrne & Co v Heller & Partners [1964] AC 465, 534, 536 (Lord Pearce). Similarly: Dorset Yacht v Home Office [1969] 2 QB 412, 426 (Lord Denning MR). 11 (See further L Green, ‘Foreseeability in Negligence Law’ (1961) 61 Columbia LR 1401 (discussed in ch 3, ‘The Structure of Negligence’.)). 12 Smith v Littlewoods Organisation Ltd [1987] AC 241, 280 (emphasis added).
eBook - PDF- Elizabeth Wicks(Author)
- 2007(Publication Date)
- Hart Publishing(Publisher)
suffers harm as a result of the failure of a healthcare professional to meet his or her professional standards, the patient will be entitled to some compensation for that harm. Increasingly, however, a patient can also expect some vindication of his or her rights to quality healthcare regardless of whether the doctor met his professional standards. While Negligence continues to be the focus of legal regulation of healthcare quality in the UK, it is no longer the bar to patient’s rights that it once was. Given that studies show that there is a surprisingly high risk of being the victim of a preventable error when in hospital, 8 there is no doubt that the question of healthcare quality is central to the law’s involvement with medicine. II. The Legal Requirements of Negligence In order for a patient to succeed in a claim for Negligence against a doctor he must satisfy three requirements: he must establish that a duty of care was owed by the doctor or hospital to himself; he must prove that the doctor breached that duty of care by failing to reach the standard of care required by the law; and finally the patient must prove that his injury or harm was caused by the doctor’s negligent act. Each of these requirements for Negligence will now be considered in detail, with particular emphasis upon the way in which the strict requirements have evolved to incorporate some consideration for the rights of the patient suffering an adverse event in a medical context. (a) Establishing a Duty of Care Generally, in Negligence cases, the establishment of a duty of care is a complex issue. In the healthcare context, however, the burden on the claimant to prove that a duty of care was owed to him is considerably lessened due to a general assumption that a doctor will inevitably owe a duty of care to his patient. 9 This assumption is based on the fundamental nature of the doctor-patient relation-ship which incorporates an obligation of caring as an inherent feature of it.
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