What is negligence? (Tort Law)

Negligence is all about fault

The law of negligence is complicated, but let’s discuss what it really means in plain English.

Fault is what underlies the law of negligence. If someone is not at fault then they are not negligent.

Negligence covers many different situations, such as (amongst others):

  • road traffic accidents
  • negligent advice (e.g. a doctor giving the wrong advice to a patient)
  • accidental physical injury (e.g. a cyclist accidently injuring a pedestrian)
  • nervous shock (e.g. someone seeing their relative being injured in a traumatic and distressing negligent event)

Regardless of the type of negligence claim, fault is the centre to a negligence claim. Any claim in all the above situations would focus on whether someone is at fault or not. For example:

  • In the case of a road traffic accident the focus is on who caused the accident and whether the person took reasonable care.
  • In the case of negligent advice the focus would be focused on the standard of advice.

All of the above situations have their own unique rules. The factors which would be considered in a road traffic accident are very different from those in a negligent advice claim.

In light of the above please keep in mind the law of negligence is complex. Anything but a generalisation in a short post is impossible. This post is a generalisation of the many different possible rules. The aim of this post is to give you a feel for negligence, rather than the detailed rules.

What are the key elements of negligence?

Negligence is usually focused on proving:

  1. The defendant owed a duty of care to the claimant (= person bringing the claim);
  2. The defendant must have breached that duty of care; and
  3. The claimant suffered damage as a result.

A duty of care

In claims of negligence a duty of care will usually be recognised where:

  • 1. There was foreseeability of damage;
  • 2. A sufficient proximate relationship existed between the parties; and
  • 3. It must be fair, just and reasonable to impose a duty.

The three stage-test is very vague. The idea behind this is it gives courts discretion over the situations in which a duty should be allowed or denied.

Duty of care explained in plain English

Considerations will vary enormously on the circumstances involved. The type of damage suffered (e.g. pure financial loss, physical injury, etc.) will also be a factor. However, when considering whether a duty is owed (in the context of negligence), the court usually will likely look at:

  • the likelihood of harm;
  • the closeness of relationship between the parties; and
  • whether imposing a duty is fair, just and reasonable in the circumstances

The likelihood of harm is called ‘foreseeability’. This is usually focused on looking at the circumstances and facts of each scenario to determine how likely harm was.

The closeness of relationship is called ‘proximity’. Consider:

  • The relationship between drivers with other road users. In terms of law, drivers have a close ‘proximity’ with each other as well as pedestrians.
  • A mother has a close ‘proximity’ with her child.
  • A doctor would also likely have a close ‘proximity’ with their patient.
  • The ambulance service would not usually have a close ‘proximity’ with general members of the public. (However, this may change once they agree to attend a call and assume a responsibility for the individual in question).

On the question of whether it is ‘fair, just and reasonable’ to impose a duty, public policy factors come in. This area of law can be complicated, but some arguments that could be raised are:

  • Imposing a duty could lead to too many cases coming to court.
  • The loss should have been covered by insurance (e.g. some financial losses incurred as a result of electricity negligently being cut by roadworks should have been insured against).
  • It would lead to defensive practice (e.g. doctors would have to refer everyone to specialists just in case of a negligence claim).
  • Public resources were limited (e.g. the ability for ambulances to arrive quickly on scene is subject to prioritising limited resources).

Raising a public policy reason could mean that a duty is denied in the circumstances. However this is not necessarily the case. Public policy considerations are complex. Each case is looked at in light of the considersations before a decision is made.

In reality it is often difficult to separate completely ‘foreseeability’, ‘proximity’ and the ‘fair, just and reasonable’ considerations. All the circumstances need to be considered in light of the tests to decide whether a duty is appropriate.

Breach of duty

Even if a duty is owed, it would next be necessary to prove a breach of duty. The normal test that applies to most sitiuations looks at whether the person fell below the standard of care expected of that person in the circumstances.

The standard is usually that of a reasonable person. If the person however has relevant special skills or knowledge, the person will be judged against the higher standard of someone with those skills or knowledge.

In assessing whether there has been a breach, it is usually necessary to consider:

  • The likely level of harm;
  • The likelihood of harm; and
  • Where relevant the expense of taking steps to avoid (or reduce the likelihood) the harm

Essentially:

  • The higher the likely harm, the higher the standard of care;
  • The more likely the harm was going to happen, the higher the standard of care; and
  • If the risks could have been avoided or reduced by taking precautions, the cost of those precautions and the practicality of doing so (in light of the level of likely harm and the likelihood of harm) would be taken into account

One unusual point to note is for learner drivers’ inexperience is not taken into account in assessing the standard. All drivers, regardless of their experience, are judged as having the standard of a reasonably competent driver.

Failing to act at all when there was a duty to act could be a breach of duty in certain circumstances. An example of this could be where a lifeguard on duty at a swimming pool fails to try to save a drowning swimmer.

Damage

Most negligence situations need damage to be proven. This could be physical injury, financial loss, etc. There should be a clear link between the breach of duty and the damage. This is known as proving ‘causation’.  Essentially the court needs to be satisfied that as a matter of fact the defendant caused the damage/injury suffered by the claimant. Logically it would be unfair to hold the defendant liable for damage/injury if the court does not think the defendant caused.

In straightforward cases causation is proven by the ‘but for’ test. This focuses on whether the injury/damage would have occurred but for the defendant’s negligent act (or omission).

Sometimes, however, the ‘but for’ test is inappropriate. This could be, for example, where there are multiple possible causes of the damage/injury and it is not clear which one caused the damage/injury. To cope with this, the courts may use other alternative tests to establish causation, but these tests are not discussed further here.

Regardless of the above, tests of remoteness (not discussed here), may also limit any financial losses/injuries/damage that can be claimed where the type of loss was unforeseeable. The complicated rules on remoteness I do not discuss here further

I hope the above has given you an introduction to ‘negligence’. Remember that the above is only intended to give you an insight to ‘negligence’. Detailed rules on certain types of loss (e.g. pure economic loss (financial loss without physical damage), psychiatric harm, etc.) have not been discussed.

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