Negligence

I INTRODUCTION

Negligence, in law, failure to exercise due care in carrying out activities that result in damage for which the victim can claim compensation. Negligence is usually the careless commission of an act—often driving—but it may be a careless failure to act.

Bringing a successful legal action for damages for an act of negligence depends on establishing three stages. There must first of all be a duty to take care in performing the act: for example, a driver owes a duty of care to other road users. Secondly, the negligent defendant must be in breach of that duty: a breach of duty is made if the defendant did not match the standard of a reasonable person in that situation, and for these purposes, the defendant’s personality and temporary characteristics (such as drunkenness) are not considered. Thirdly, that breach of duty must have caused damage.

II DUTY OF CARE

A person will be taken to owe a duty of care to others chiefly when it is foreseeable that a breach of that duty will cause damage to them. The actual defendant need not have foreseen the possibility; it is enough that the possibility reasonably exists. Sometimes the duty is a general one: a driver owes a duty of care to all other road users, including other drivers, vehicle passengers, and pedestrians. Sometimes the duty arises from a particular relationship: a doctor owes a duty of care to his patient but does not generally owe a duty to the patient’s family. In the absence of a special relationship, there is no general duty to go to the rescue of those who are in danger.

III BREACH OF DUTY

When a person who owes a duty of care to another person fails to take proper care, there is a breach of duty. When the courts consider what amounts to “proper care”, they seldom make allowances for the defendant’s particular circumstances, so a learner driver will be expected to drive to the standard of an experienced driver, for example. The highest degree of skill is not required of a defendant: a junior hospital doctor will be expected to display the skills of a consultant, but not of a world expert on the subject.

IV CAUSATION OF DAMAGE

The necessity for the breach of care to have caused the damage is often obviously satisfied, as in a road accident. It presents more problems, however, when applied to more complex activities. In medical law, for example, it is necessary for the claimant to show that negligence was not just a possible cause, but the actual cause, of the injury: this means that if the injury might have been caused by other factors, even where there was admitted negligence on the part of doctors, they will often not be liable. Similar problems may arise where an industrial environment may have caused diseases that could be attributable to other factors.

V SPECIAL CASES

In certain circumstances, the rules are altered somewhat. The occupier of land owes visitors to the land “the common duty of care”, which is a duty to take reasonable care to see that visitors will be reasonably safe in using the premises for the purposes for which they are invited or permitted by the occupier to be there. A duty of care is also owed to trespassers, but the standards expected of the occupier are lower.

A defendant will seldom be held liable for the negligent acts of third parties unless they are his or her employees and are acting in the course of their employment. A National Health Service hospital will, therefore, be liable for negligent treatment given by one of its doctors, but it will not be liable if the doctor causes a road traffic accident while driving to work. (See “Vicarious Liability”, below.)

VI DAMAGES

Damages are recoverable for all kinds of physical injury and the resultant losses, such as loss of earnings or a requirement for medical care. They are available for “nervous shock”—psychological injury—for those who are physically injured, but those who suffer from injury to a loved one will only have a claim if they are present at the accident or immediately afterward. An exception is made for those who suffer trauma as a result of taking part in rescue work; in such cases, compensation can be recovered.

Economic loss—usually the loss of a chance of making a profit—is recoverable only in limited circumstances. The relationship between the parties must have been such that the defendant plainly knew that the claimant risked suffering the loss if the defendant was negligent.

VII BURDEN OF PROOF

The claimant in a negligence action is required to prove all the above factors as to the defendant’s negligence. In order to succeed, the proof must be on the balance of probabilities: it must be more likely than not that the claimant’s version is true. One aspect that may assist the claimant is the doctrine res ipsa loquitur (Latin, “the matter speaks for itself”): if the claimant can show that the injury was sustained in the course of the defendant’s activities, and it would not have occurred other than by negligence, the negligence is proved unless the defendant can show otherwise. For example, a passenger may be asleep in a car that leaves the road and runs into a tree. He might have no idea what caused the car to behave like that, but he would be able to say to the court that the only possible explanation was negligence on the part of the driver.

VIII CONTRIBUTORY NEGLIGENCE

A claimant may have the number of damages for an injury reduced if the defendant can show that the claimant contributed to the accident by his or her own negligence. For example, a pedestrian who carelessly walks in front of a car and is run down by a careless driver might have the damages reduced by 50 percent or more.

IX VICARIOUS LIABILITY

Many negligent acts are committed by employees in the course of their work. In such cases, the victim may sue the employer instead of the employee, and this is the usual course since the employer is more likely to be insured, or to be in a position to afford the damages. The rule applies regardless of any fault on the employer’s part. The employer can, in theory, recover the damages from the employee, but this is almost never done.

X CRIMINAL NEGLIGENCE

Certain criminal offences can be based on negligent conduct. If someone is killed through the gross negligence of another, it may constitute the criminal offence of manslaughter. Negligent driving will usually also constitute the motoring offence of careless driving. Although a motorist guilty of the offence of dangerous driving will have no defence to a claim for damages in negligence, this offence is much more serious, and usually constitutes a course of deliberately bad driving—for example, racing with another motorist, or deliberately overtaking on a blind bend.

Contributed By:
David Watson

Reviewed By:
Simon Levene

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