This is one of most important torts in law. In Blyth v. Birmingham Waterworks Co. (1856) it was defined as;
The omission to do something which a reasonable man, guided upon those consideration which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and a reasonable man would not do.
Elements of negligence
1. Legal duty of care
2. Breach of the legal duty of care
3. Loss or damage to the plaintiff
These elements must be in place before the defendant can be liable
Duty of care
This is the duty to take reasonable care to avoid acts or omissions reasonable foreseeable as to likely cause injury to your neigbour, your neighbor being anyone likely to be affect your actions or omission.
This started in a negligence case of Donoghue v Stevenson (1932) where the claimant (Mrs. Donoghue) went to a café with a friend. The friend bought her a drink of ginger beer and ice cream. The bottle of ginger beer had dark glass so that the content could not be seen. After drinking some of it, Mrs. Donoghue poured the rest out and then saw that it contained a dead (and decomposing) snail. This appalled Mrs. Donoghue and she became ill as a result of the sight and the ginger beer she had already drunk.
Mrs. Donoghue had no direct claim against the manufacturer or the shopkeeper based on contract because she did not buy the ginger beer. Mrs. Donoghue’s friend could claim against the café in contract, but had not suffered any loss apart from the fact that she had bought defective goods; she could get her money back, but nothing for Mrs. Donoghue’s illness. Therefore, Mrs. Donoghue claimed damages against the manufacturer,
Stevenson. Her claim was for the resulting shock and stomach upset, which she claimed was caused through drinking the ginger beer.
The court had to decide whether her claim against the manufacturer of the ginger beer could succeed. This led to Lord Atkin‟s famous statement:
“The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, „Who is my neighbour?‟ receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be: persons who are so closely and directly affected my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”
The duty of care principle should fit the the three-part test in the case of Caparo v Dickman (1990).
1. It was reasonably foreseeable that a person in the claimant’s position would be injured,
2. There was sufficient proximity (closeness) between the parties,
3. It is fair, just and reasonable to impose liability on the defendant.
All parts of the test must be satisfied if there is to be a duty of care owed the defendant to the claimant. Each part must be explained and proved separately.
Breach of duty of care
This means falling below given standards of care. Standard of care means the standards through which the defendants conduct is measured. Breach of duty is measured objectively the „reasonable man test‟. The reasonable man is the ordinary person performing the particular task: he is expected to perform it reasonably competently. Thus, when I am driving my car, I am expected to be a reasonably competent driver who can drive a car.
For a breach of duty to occur, the court will take four factors into account:
1. The degree of risk involved: the greater the risk, the more the defendant has to take care. (Bolton v Stone 1951).
2. The cost of precautions: the courts will see how high the risk is involved, and then take into account the expense of taking precautions to prevent that risk (Bolton v Stone and Latimer v AEC)
3. Potential seriousness of injures: so if there is a very high risk of serious injury, the more the defendant needs to be very careful (Paris v Stepney B.C. 1951).
4. The importance of the activity: in an emergency, sometimes it is not possible to reflect, think of a possible risk (Marshall v Osmand 1982).
Injury to the plaintiff
Having given proof of the above two the plaintiff still has to prove that he/she suffered some injury before the defendant can be liable for negligence.
There are a number of tests that are used when assessing the injury such as;
Causation – „But for Test‟
Would the damage have happened had it not been for the breach of duty?
This can be seen Barnett v Chelsea and Kensington Hospitals (1969) where three night-watchmen went to Accident & Emergency complaining of sickness after drinking tea made a fourth man. A nurse telephoned the doctor on duty, who did not come to examine the men but instead sent the men home and told them to go and see their own doctors in the morning. On returning home, one of the men died a few hours later from poisoning. His widow sued the hospital claiming that the doctor was negligent in not examining her husband. Evidence showed that the time the husband had called in to the hospital it was already too late to save his life. This meant that his death was not a result of the doctor’s breach of duty and so the claim failed.
The claimant has to show that the type of damage was reasonably foreseeable.
This is seen in the case of The Wagon Mound (1961) where fuel had negligently spilled onto water in a harbour. Two days later the oil caught fire because of wielding work being done on another ship. The fire spread to the claimants wharf and burnt it. The damage suffered was not reasonably foreseeable.
Thin Skull Rule (take your victim as you find him)
This rule means that the defendant must take his victim as he finds him. So, if the type damage is reasonably foreseeable, but it is much more serious because of something unusual about the claimant, such as a thin skull, then the defendant is liable. In this situation the damage is not too remote.
This is shown in the case of Smith v Leech Brain and Co. (1962) where because of a defendants negligence, a man was burnt on the lip molten metal. The burn caused him to develop cancer and his widow claimed against the defendant and because the burn was a foreseeable injury, he was also liable for the man’s death
The burden of proof in negligence
Generally the burden of proof in civil actions lies with the plaintiff. He has to prove that the defendant owe him a duty of care, that he breached it and this led into suffering. In certain cases however this isn’t so such as in the doctrine of Res ipsa loquitur.
Res ipsa loquitur translate to let the facts speak for themselves. It is applicable in situations where something happens in a way it ought not to have. It is applicable in negligence if;
1. The thing that caused the injury was in control of the defendant or someone over whom the defendant exercises control
2. The event wouldn’t have happened without negligence
3. There is no way of explaining how it happened.