Negligence (Latin: negligentia) is a failure to exercise appropriate care expected to be exercised in similar circumstances.
Within the scope of tort law, negligence pertains to harm caused by the violation of a duty of care through a negligent act or failure to act. The concept of negligence is linked to the obligation of individuals to exercise reasonable care in their actions and to consider foreseeable harm that their conduct might cause to other people or property. The elements of a negligence claim include the duty to act or refrain from action, breach of that duty, actual and proximate cause of harm, and damages. Someone who suffers loss caused by another's negligence may be able to sue for damages to compensate for their harm. Such loss may include physical injury, harm to property, psychiatric illness, or economic loss.
Elements of negligence claims To successfully pursue a claim of negligence through a lawsuit, a plaintiff must establish the "elements" of negligence. In most jurisdictions there are four elements to a negligence action: duty: the defendant has a duty to others, including the plaintiff, to exercise reasonable care, breach: the defendant breaches that duty through an act or culpable omission, damages: as a result of that act or omission, the plaintiff suffers an injury, and causation: the injury to the plaintiff is a reasonably foreseeable consequence of the defendant's act or omission.
Some jurisdictions narrow the definition down to three elements: duty, breach and proximately caused harm. Some jurisdictions recognize five elements, duty, breach, actual cause, proximate cause, and damages. Despite these differences, definitions of what constitutes negligent conduct remain similar.
Duty of care
The legal liability of a defendant to a plaintiff is based on the defendant's failure to fulfil a responsibility, recognised by law, of which the plaintiff is the intended beneficiary. The first step in determining the existence of a legally recognised responsibility is the concept of an obligation or duty. In the tort of negligence, the term used is duty of care.
The case of Donoghue v Stevenson (1932)Donoghue v Stevenson AC 532 established the modern law of negligence, laying the foundations of the duty of care and the fault principle which, (through the Privy Council), have been adopted throughout the Commonwealth. May Donoghue and her friend were in a café in Paisley. The friend bought Donoghue a ginger beer float. She drank some of the beer and later poured the remainder over her ice-cream and was horrified to see the decomposed remains of a snail exit the bottle. Donoghue suffered nervous shock and gastro-enteritis, but did not sue the cafe owner, instead suing the manufacturer, Stevenson. (As Donoghue had not herself bought the beer, the doctrine of privity precluded a contractual action against Stevenson.)
The Scottish judge, Lord MacMillan, considered the case to fall within a new category of delict (the Scots law nearest equivalent of tort). The case proceeded to the House of Lords, where Lord Atkin interpreted the biblical ordinance to "love thy neighbour" as a legal requirement to "not harm thy neighbour". He then went on to define neighbour as "persons who are so closely and directly affected by 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 that are called in question."
In England the case of Caparo Industries Plc v Dickman (1990) introduced a "threefold test" for a duty of care. Harm must be (1) reasonably foreseeable (2) there must be a relationship of proximity between the plaintiff and defendant and (3) it must be "fair, just, and reasonable" to impose liability. However, these act as guidelines for the courts in establishing a duty of care; much of the principle is still at the discretion of judges.
In Australia, Donoghue v Stevenson was used as a persuasive precedent in the case of Grant v Australian Knitting Mills (AKR) (1936).; . This was a landmark case in the development of the negligence law in Australia..
Whether a duty of care is owed for psychiatric, as opposed to physical, harm was discussed in the Australian case of Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd (2002)... Determining a duty for mental harm has now been subsumed into the Civil Liability Act 2002 in New South Wales.. The application of Part 3 of the Civil Liability Act 2002 (NSW) was demonstrated in Wicks v SRA (NSW); Sheehan v SRA (NSW).;see also .
Breach of duty
Once it is established that the defendant owed a duty to the plaintiff/claimant, the matter of whether or not that duty was breached must be settled. The test is both subjective and objective. The defendant who knowingly (subjective, which is based on observation and personal prejudice or view) exposes the plaintiff/claimant to a substantial risk of loss, breaches that duty. The defendant who fails to realize the substantial risk of loss to the plaintiff/claimant, which any "reasonable person"(objective, which is totally based on ground facts without any personal prejudice or point of view) in the same situation would have realized, also breaches that duty..; see also . However, whether the test is objective or subjective may depend upon the particular case involved.
There is a reduced threshold for the standard of care owed by children. In the Australian case of McHale v Watson,. McHale, a 9-year-old girl was blinded in one eye after being hit by the ricochet of a sharp metal rod thrown by a 12-year-old boy, Watson. The defendant child was held not to have the level of care to the standard of an adult, but of a 12-year-old child with similar experience and intelligence. Kitto J explained that a child's lack of foresight is a characteristic they share with others at that stage of development. The same principle was demonstrated to exist in English law in Mullin v Richards.Mullin v Richards 1 WLR 1304
Certain jurisdictions, also provide for breaches where professionals, such as doctors, fail to warn of risks associated with medical treatments or procedures, such as an obstetrician did not warn a mother of complications arising. In Montgomery v Lanarkshire Health Board, the UK Supreme Court (hearing a Scottish delict case) decided that doctors are under a duty to ensure patients are aware of material risks in the treatment they recommend, and to make them aware (if possible) of any other reasonable treatment option—a form of informed consent. Under Queensland's Civil Liability Act, doctors owe both objective and subjective duties to warn—breach of either is sufficient to satisfy this element in a court of law..
In Donoghue v Stevenson, Lord Macmillan declared that "the categories of negligence are never closed"; and in Dorset Yacht v Home Office it was held that the government had no immunity from suit when they negligently failed to prevent the escape of juvenile offenders who subsequently vandalise a boatyard. In other words, all members of society have a duty to exercise reasonable care toward others and their property. In Bolton v. Stone (1951),Bolton v. Stone, A.C. 850 see also . the House of Lords held that a defendant was not negligent if the damage to the plaintiff were not a reasonably foreseeable consequence of his conduct. In the case, a Miss Stone was struck on the head by a cricket ball while standing outside a cricket ground. Finding that no batsman would normally be able hit a cricket ball far enough to reach a person standing as far away as was Miss Stone, the court held her claim would fail because the danger was not reasonably or sufficiently foreseeable. As stated in the opinion, "reasonable risk" cannot be judged with the benefit of hindsight. In Roe v Minister of Health,Roe v Minister of Health (1954) 2 AER 131; see also Glasgow Corporation v Muir (1943) 2 AER 44. Lord Denning said the past should not be viewed through rose coloured spectacles, finding no negligence on the part of medical professionals accused of using contaminated medical jars, since contemporary standards would have indicated only a low possibility of medical jar contamination.
United States v. Carroll Towing Co. 159 F.2d 169 (2d. Cir. 1947) For the rule in the U.S., see Calculus of negligence
Intention and/or malice Further establishment of conditions of intention or malice where applicable may apply in cases of gross negligence.
Causation
In order for liability to result from a negligent act or omission, it is necessary to prove not only that the injury was caused by that negligence, but also that there is a legally sufficient connection between the act and the negligence.
Factual causation (actual cause)
For a defendant to be held liable, it must be shown that the particular acts or omissions were the cause of the loss or damage sustained.Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303; (1976) 50 ALJR 720 LawCite records. Although the notion sounds simple, the causation between one's breach of duty and the harm that results to another can at times be very complicated. The basic test is to ask whether the injury would have occurred "but for", or without, the accused party's breach of the duty owed to the injured party.; ;.. In Australia, the High Court has held that the "but for" test is not the exclusive test of causation because it cannot address a situation where there is more than one cause of damage. When "but for" test is not satisfied and the case is an exceptional one, a commonsense test ("Whether and Why" test) will be applied(2). Even more precisely, if a breaching party materially increases the risk of harm to another, then the breaching party can be sued to the value of harm that he caused.
Asbestos litigations which have been ongoing for decades revolve around the issue of causation. Interwoven with the simple idea of a party causing harm to another are issues on insurance bills and compensations, which sometimes drove compensating companies out of business.
Legal causation (proximate cause)